Site icon BAG consult

Terms and conditions

§ 1 Scope, Contracting Parties, Contract Components, Language Versions


(1) These General Terms and Conditions (“GTC”) apply to all contracts in which a company
operating under the brand name “BAG” or “BAG Consult” (hereinafter collectively
referred to as “BAG Company”) undertakes to provide services to a customer. The BAG
company is the legal entity named as the contractual partner in the individual
contract (e.g. offer, framework agreement, service certificate, statement of work) (e.g.
BAG Consult Ltd., BAG Consult LDA).


(2) The GTC apply exclusively to business transactions. A customer within the meaning of
these GTC is any natural or legal person or partnership with legal capacity who, when
concluding the contract, is acting in the exercise of their commercial or independent
professional activity (“customer”). Consumers within the meaning of § 13 of the German
Civil Code (BGB) or corresponding foreign regulations are not covered by these GTC.

(3) These GTC apply to all services provided by the BAG company, in particular to:

(4) The type and scope of the services owed in each case are primarily determined by

In the event of contradictions, the following order of priority shall apply:

  1. individual agreements expressly agreed between the BAG company and the
    customer,
  2. the respective individual contract including its annexes,
  3. these GTC.

(5) Any deviating, conflicting or supplementary general terms and conditions of the
customer shall not become part of the contract unless the BAG company expressly
agrees to their validity in writing. This requirement of consent shall apply in all cases, in
particular if the BAG company provides services in the knowledge of conflicting or
deviating terms and conditions of the customer

(6) Insofar as the BAG company procures rights of use for third-party software (e.g.
SimpleMDG or other cloud or on-premise products provided by the respective
manufacturer) for the customer or arranges for its use, the respective licence, business
and terms of use of the manufacturer shall apply in addition and take precedence. In
such cases, the BAG company shall be obliged to procure or arrange for the rights of use
to the extent specified therein; further rights shall only be granted if this is expressly
agreed in the individual contract.

(7) The parties agree that the law applicable to the respective contract and the place of
jurisdiction shall be determined in the individual contract. Insofar as these GTC refer to
“applicable law” or “mandatory legal provisions”, this shall mean the national law
selected in the individual contract.
(8) These GTC may be provided in different language versions (e.g. German, English,
Portuguese, Spanish). The customer will generally be provided with the language version
that corresponds to their preferred contract language. All language versions are
equivalent in content; however, in the event of contradictions or doubts regarding
interpretation, the language version designated as authoritative in the individual
contract shall prevail. Unless otherwise specified in the individual contract, the English
version of these GTC shall prevail.

§ 2 Conclusion of contract, offers, service descriptions

(1) Conclusion of contract
Contracts between the BAG company and the customer are concluded by
(a) the customer’s written acceptance of an offer submitted by the BAG company,
(b) the written order confirmation by the BAG company in response to an enquiry or
order from the customer, or
(c) the actual commencement of service provision by the BAG company, provided that
the customer has accepted the underlying offer or a service description and it is
clear from the circumstances that the BAG company accepts the customer’s enquiry
on the terms offered.
Declarations in text form (e.g. email) are sufficient, unless a stricter form has been
agreed in individual cases.

(2) Offers and period of validity
Unless expressly designated as binding, offers made by the BAG company are subject to
change and non-binding. An offer is generally valid for 30 days from the date of the
offer, unless a different binding period is specified in the offer. After the binding period
has expired, the BAG company may reconfirm or adjust the offer.

(3) Individual contracts, service certificates, statements of work
The documents prepared by the BAG company in the course of contract negotiations, in
particular offers, service certificates, project descriptions, statements of work, concepts
and presentations, form the basis for the respective individual contract. The individual
contract specifies in particular:

(4) Service descriptions / no guarantee
The information contained in offers, service specifications, presentations, product
descriptions or other documents regarding the scope of services, deadlines, resource
planning, methods, reference projects, chances of success or economic efficiency
are non-binding descriptions or planning bases, unless they are expressly designated as
binding quality agreements or guarantees. In particular, they do not constitute a
guarantee in the legal sense, unless such a guarantee is expressly designated as a
“guarantee” in writing in the individual contract.
(5) Third-party software and manufacturer conditions
Insofar as the subject matter of the contract is wholly or partly the use of third-party
software (in particular SimpleMDG or other cloud or on-premise products provided by
the respective manufacturer), the individual contract shall determine

(6) Changes and extensions to the scope of services
Changes or extensions to the agreed scope of services (e.g. additional modules,
additional services, changed dates) require a jointly agreed change order or a
corresponding adjustment to the individual contract (change request). Until an
agreement has been reached on an adjustment to the remuneration and framework
conditions, the BAG company is not obliged to provide the changed or additional
services.

§ 3 Types of services and classification

(1) Consulting and project services (standard case: service)
The BAG company generally provides consulting, project and support services. These
include in particular:

Unless expressly designated in the individual contract as a service under a contract for
work and services with a specific outcome, the BAG company does not owe a specific
result for these services, but rather the professional performance of the agreed activities
in accordance with the recognised rules of science, technology and consulting.
(2) Contractual services / promise of success (exceptional case)
If a specifically described service with a promise of success is expressly agreed in the
individual contract (e.g. creation of a precisely defined concept, documentation,
configuration or technical solution with specified characteristics), this may constitute a
service under a contract for work and services, either in whole or in part.
Such work contract services must be clearly designated as such in the individual
contract and described in terms of content (e.g. by means of a service description,
specifications, acceptance/test criteria). Only in this case does the customer have
warranty rights under the work contract; otherwise, the provisions for services apply.
(3) Support, service and operational support services
Insofar as the BAG company provides recurring services such as

the type and scope of these services are governed by the respective individual contract
and the service levels agreed therein (e.g. response times, service times, priority classes).
Unless expressly defined as a service under a contract for work and services, these are
generally services provided within the framework of a continuing obligation.
(4) Software, subscriptions and third-party products
(a) Third-party software / manufacturer products
If the subject matter of the contract is the use of third-party software (in particular SimpleMDG or other cloud or on-premise solutions provided by the respective
manufacturer), the BAG company generally provides the following services:

The rights and obligations arising from the provision of software (e.g. scope of
functions, availability, service levels, warranty rights) are primarily determined by the
respective terms and conditions of the manufacturer and the individual contract.
The BAG company is not liable for any further characteristics of the third-party
software other than those promised by the manufacturer, unless expressly agreed
otherwise in the individual contract.
(b) Own tools, templates and additional components
Insofar as the BAG company provides its own tools, scripts, templates or additional
components, the property rights to these shall remain with the BAG company. The
customer shall receive a simple, non-exclusive right of use to the extent necessary
for contractual use, unless otherwise agreed in the individual contract. Further
details are regulated by the provisions on know-how and intellectual property.

(5) Service levels, availability and response times
If service levels (e.g. availability, response and recovery times) are agreed for certain
services (in particular support or the operation of applications), only the values specified
in the individual contract or in the associated service level agreements (SLA) shall apply.
For third-party software, the respective service levels of the manufacturer apply; these
may differ from the customer’s expectations and, in case of doubt, can be found in the
manufacturer’s terms and conditions.
(6) No guarantee without express agreement
Commitments regarding certain characteristics, availability, potential savings, economic
effects or project success only constitute a guarantee in the legal sense if they are
expressly designated as such (“guarantee”, “guaranteed”) in the individual contract and
confirmed in writing by an authorised representative of the BAG company. Otherwise,
these are planned values, target figures or descriptions of the intended project goal, not
guaranteed commitments.

§ 4 Customer’s obligations to cooperate and provide assistance

(1) General obligation to cooperate
The customer is obliged to provide all cooperation necessary for the proper
performance of services by the BAG company in a timely manner, in full and in the
required quality and form. Cooperation is a primary obligation for the customer and
not merely an ancillary obligation.
(2) Contact persons and organisation
For each project, the customer shall designate a responsible contact person for BAGGesellschaft and, if necessary, additional specialist and technical contact persons with
the necessary decision-making authority. The customer’s contact person is authorised to
make or accept binding declarations on behalf of the customer in connection with the
project.
(3) Information, documents and decisions
The customer shall provide BAG-Gesellschaft in good time with all information,
documents, data, specifications and decisions necessary for the planning and execution
of the services. This includes in particular:

The customer shall ensure that the information provided by them is correct, complete
and up to date. If the customer becomes aware that the information provided is
incorrect or incomplete, they shall inform BAG-Gesellschaft immediately.
(4) System access, infrastructure and test environments
To the extent necessary for the provision of services, the customer shall ensure at its own
expense that the BAG company has timely

The customer is responsible for the operation, maintenance and backup of its own IT
systems, unless otherwise agreed in the individual contract.

(5) Testing, acceptance and approvals
The customer is obliged to cooperate in necessary tests, acceptances and approvals, in
particular

Delays in tests, approvals or acceptances for which the customer is responsible will result
in corresponding adjustments to the schedule and may incur additional costs.
(6) Data, data security and data backup
The customer is responsible for the lawful collection, processing and use of the data
provided by them. They shall ensure that no third-party rights (in particular data
protection, copyright or confidentiality rights) are infringed.
Unless expressly agreed otherwise in the individual contract, the customer is solely
responsible for adequate data backup of its systems and data (regular backups,
recovery strategies). BAG-Gesellschaft may assume that the customer fulfils these data
backup obligations.
(7) Access rights and authorisations
The customer shall ensure that the employees and, if applicable, subcontractors of the
BAG company are granted all rights and authorisations necessary for the provision of
services (e.g. system authorisations, access rights to test data, access rights to premises).
Restrictions, security requirements and approval procedures must be communicated to
the BAG company in advance.
(8) Consequences of failure to cooperate
If the customer fails to provide the necessary cooperation, or fails to do so in a timely or
proper manner, and is thereby in default,

(9) Contributory causation and mitigation of damage
If disruptions occur despite the proper performance of services by the BAG company,
the customer is obliged to take reasonable measures to mitigate damages and to actively support the BAG company in analysing and eliminating disruptions (e.g. by
providing logs, screenshots, reproduction steps).
(10) Delay on the part of the BAG company
If the BAG company is in default with its performance, claims by the customer due to
default require that the customer has properly fulfilled its obligations to cooperate and
provide assistance and that the default is not entirely or predominantly attributable to
insufficient cooperation on the part of the customer.

§ 5 Remuneration, expenses, terms of payment

(1) Remuneration models
The remuneration to be paid by the customer is specified in the respective individual
contract. Unless otherwise specified therein, the services of the BAG company shall be
invoiced on a time basis (hourly or daily rates). Flat-rate remuneration, fixed prices or
budget caps shall only apply if they are expressly agreed in the individual contract.
(2) Time-based remuneration
In the case of remuneration based on time spent, the rates agreed in the individual
contract shall apply. In the absence of any special provisions, the current daily
rates/hourly rates of the BAG company at the time of service provision shall apply.
Partial hours may be invoiced on a pro rata basis. Travel time may be remunerated as
working time, unless otherwise specified in the individual contract.
(3) Flat-rate remuneration / fixed price
If a flat-rate or fixed-price remuneration has been agreed, this shall include the services
specifically described in the individual contract . If the customer changes or expands the
scope of services (e.g. additional requirements, modules, project phases), BAG-Gesellschaft shall be entitled to demand appropriate additional remuneration. To this
end, an adjustment to the individual contract or a change request must be agreed.
(4) Travel expenses, expenses and ancillary costs
Travel and accommodation costs, expenses and other incidental costs shall be invoiced
to the customer separately, unless otherwise agreed in the individual contract. Unless
otherwise specified, the following shall apply:

(5) Price adjustments for continuing obligations
In the case of continuing obligations (in particular support, service or maintenance contracts), the BAG company is entitled to adjust the agreed remuneration for the first
time after twelve (12) months from the start of the contract and thereafter at most
once a year with effect for the future if

The BAG company shall notify the customer of any remuneration adjustment in writing
at least six (6) weeks before it takes effect. If the increase exceeds 10% of the last
agreed remuneration, the customer is entitled to terminate the affected contract
extraordinarily within two (2) weeks of receipt of the notification at the time the
increase takes effect.
(6) Taxes and duties
All remuneration is subject to the applicable statutory value added tax and any other
statutory levies, if applicable. Any withholdings or withholding taxes owed in the
customer’s country shall be borne by the customer in addition or arranged in such a
way that the BAG company receives the net amount agreed in the individual contract, if
legally permissible.
(7) Invoicing and due date
The BAG company generally invoices monthly in arrears for the services rendered,
unless otherwise agreed in the individual contract. Unless otherwise agreed, invoices are
due for payment without deduction within fourteen (14) calendar days of the invoice
date.
(8) Default
If the customer defaults on payments, the BAG company is entitled to charge default
interest at the statutory rate and to claim any further damages caused by the default. In
the event of default in payment, the BAG company may, after prior notice, withhold
further services or only provide them against advance payment. Statutory rights of
termination or withdrawal remain unaffected.
(9) Offsetting and retention
The customer is only entitled to offset claims against the BAG company if their
counterclaim is undisputed, legally established or ready for decision. The customer is
only entitled to a right of retention if their counterclaim is based on the same
contractual relationship and is undisputed, legally established or ready for decision.
(10) Objections to invoices
Objections to invoices must be raised by the customer in writing within four (4) weeks
of receipt of the invoice at the latest. If this is not done, the invoice shall be deemed to
have been approved. The customer’s statutory claims remain unaffected by this; however, BAG-Gesellschaft may invoke the presumption of approval if objections are not
raised in good time

§ 6 Project organisation, performance deadlines and changes to the scope of services

(1) Project organisation
The parties shall work together within the framework of the project organisation
described in the individual contract. Unless otherwise agreed, each party shall appoint a
project manager as the primary contact person for all project-related questions. The
customer’s project manager is authorised to make binding decisions for the customer
within the scope of the project or to bring about such decisions internally.
(2) Performance deadlines and dates – planning nature
Insofar as deadlines, dates or milestones are specified in the individual contract or in
project plans, these shall generally be regarded as planning and target dates, unless
they are expressly designated as binding fixed dates. They presuppose that

(3) Delays due to lack of cooperation on the part of the customer
If the provision of services is delayed due to insufficient or delayed cooperation on the
part of the customer ( , due to subsequently changed requirements or other
circumstances within the customer’s sphere of influence, the agreed service deadlines
and dates shall be extended by a reasonable period, but at least by the period of the
delay plus a reasonable start-up period. In addition, the BAG company shall be entitled
to charge for the additional costs or expenses incurred as a result of this in accordance
with the agreed rates or, in the absence of an agreement, in accordance with the usual
rates.
(4) Delay on the part of the BAG company
The BAG company shall only be in default if

Claims by the customer due to default are governed by § 12 (Liability).

(5) Need for changes / change requests
If, in the course of the project, it becomes apparent that

(6) Procedure for changes to the scope of services
Upon receipt of a change request, BAG-Gesellschaft shall examine whether and under
what conditions the desired change can be implemented and shall inform the customer
in particular of:

The customer shall review the proposed change within a reasonable period of time. Until
agreement is reached on the change and its terms and conditions, the BAG company
shall continue to provide services based on the previously agreed scope of services,
provided this is possible and reasonable for the customer.

(7) Approval and documentation of changes
A binding change to the scope of services shall only come into effect when the parties

(8) Urgent measures
In cases where urgent short-term measures are necessary for technical or operational
reasons (e.g. to prevent or remedy significant disruptions, to secure data or systems), the
BAG company may provisionally deviate from the agreed scope of services even without
prior written agreement, provided that this is objectively necessary and in the presumed
interest of the customer. The parties shall subsequently agree on a corresponding
adjustment of the scope of services, remuneration and deadlines in a timely manner

§ 7 Rights to work results, know-how and rights of use

(1) Background IP of the BAG company
All rights to methods, concepts, procedures, models, templates, training materials, standard documents, software, scripts, tools and other know-how (“background IP”)
that already existed before the start of the collaboration or were developed
independently of it shall remain exclusively with the BAG company or its licensors. This
contract does not grant the customer any ownership rights; the customer only receives
rights of use in accordance with this § 7 or by separate agreement.

(2) Project work results
In the course of the provision of services by the BAG company, project-specific work
results may arise, e.g.:

Unless otherwise agreed in the individual contract and subject to third-party rights,
BAG-Gesellschaft grants the customer the rights of use described in paragraphs (3) to (5)
to these project work results.
(3) Rights of use to project work results
The BAG company grants the customer a simple (non-exclusive), temporally and
geographically unrestricted right of use to the project work results it has produced
within the scope of the respective project, insofar as this is necessary for the use of the
project results at the customer’s premises as stipulated in the individual contract. The
right of use includes, in particular, the right to use the work results

(4) Restrictions on use and disclosure
Unless otherwise agreed in the individual contract, the customer is not entitled to pass
on, sell or license the project work results

This does not affect the customer’s right to make the project work results available to
third parties to the extent necessary for the intended use of its systems and processes
(e.g. to IT or consulting partners, outsourcing service providers), provided that they are
bound to confidentiality.

(5) Own tools, add-ons and generic components
If the BAG company uses its own generic components, tools, scripts, add-ons, libraries,
frameworks or templates within the scope of the project that can be used multiple
times independently of the specific customer project, the property rights to these
shall remain exclusively with the BAG company. The customer shall receive a simple right
of use to the extent necessary for the contractually agreed use of its systems.
The BAG company is entitled to use these components in an unmodified or adapted
form in projects for other customers, provided that no confidential information of the
customer is disclosed in the process.
(6) Third-party software and manufacturer rights
If the customer uses third-party software (in particular SimpleMDG, SAP products or
other manufacturer solutions) in connection with the services provided by BAGGesellschaft, the customer’s rights to this software shall be governed exclusively by the
licence and terms of use of the respective manufacturer. BAG-Gesellschaft is not
entitled to grant the customer any rights of use to third-party software that go beyond
those provided for in the manufacturer’s terms and conditions.
If project work results are implemented in or with third-party software, the following
applies: The customer’s rights of use to the project-related configurations and
adaptations exist only within the scope of the rights granted to them for the respective
third-party software.
(7) References and anonymised use of experience
The BAG company is entitled to use the general experience, methods and best
practices gained in the course of projects in anonymised form in other projects,
provided that no confidential information or trade or business secrets of the customer
are disclosed.
However, the naming of the customer as a reference customer, the use of logos or the
publication of project-related content requires the prior consent of the customer in text
form.
(8) Reservation of rights until full payment
Unless otherwise agreed in the individual contract, the granting or extension of rights of
use to project work results is subject to full payment of the remuneration owed for
this. Until full payment has been made, the BAG company grants the customer a
revocable, simple right of use for provisional use within the scope of project
implementation.

§ 8 Acceptance of services under a contract for work and services

(1) Scope of application of acceptance
Acceptance in the legal sense is only required for services that are expressly agreed in
the individual contract as services under a contract for work and services with a
promise of success (e.g. clearly defined concepts, documentation, specific
configurations or technical solutions with specified characteristics). For pure services in
the sense of consulting, project or support services, there is no acceptance procedure in
the legal sense; any reviews or approvals serve only for coordination and quality
assurance.
(2) Readiness for acceptance and acceptance test
Once the BAG company has completed a service under a contract for work and services
(or a self-contained part thereof), it shall notify the customer in writing that the service
is ready for acceptance and provide the customer with the necessary documents
and/or results in a suitable form.
The customer shall examine the service within a reasonable period of time – generally
within ten (10) working days of receipt of the notification of readiness for acceptance –
and

(3) Deemed acceptance
A service under a contract for work and services shall be deemed to have been
accepted if
(a) the customer does not refuse acceptance within the period specified in paragraph
(2), stating at least one material defect, or
(b) the customer uses the service productively or has it used productively without first
expressly declaring acceptance or reporting defects, and the BAG company has
informed the customer of the significance of productive use for deemed acceptance
when the service is ready for acceptance.
Insignificant defects do not entitle the customer to refuse acceptance; they must be
remedied within the scope of the rights to remedy defects.
(4) Partial acceptances
The parties may agree in the individual contract or in the project plan on partial
acceptances for self-contained partial services (e.g. individual project phases, modules,
documents). The provisions of this § 8 apply accordingly to partial acceptances. Upon
partial acceptance, the respective partial service shall be deemed to have been
performed in accordance with the contract; any rights in respect of defects shall be limited to the parts not yet accepted and to hidden defects in the parts already
accepted.
(5) Defect report and rectification
If the customer discovers significant defects during the acceptance inspection, they shall
document these in writing in a defect report. The BAG company shall remedy the
reported significant defects within a reasonable period of time and notify the customer
again that the work is ready for acceptance. Acceptance shall then take place in
accordance with paragraphs (2) and (3).
(6) Use prior to acceptance
If the customer already uses a service under a contract for work and services for
productive purposes prior to acceptance, this shall be at the customer’s own risk. The
provision on deemed acceptance in accordance with paragraph (3) letter b) shall remain
unaffected

§ 9 Rights in respect of defects / warranty

(1) Services (consulting, project support)
Insofar as the BAG company provides services (in particular consulting, project, support
and training services within the meaning of § 3 (1) and (3)), it is not obliged to achieve
specific results, but rather to perform the agreed activities in a professional manner.
If the customer discovers defects in the performance of the service (e.g. errors,
incompleteness, deviations from the service description), they shall notify the BAG
company of this in writing without delay and grant it a reasonable period of time to
remedy the defect.
The BAG company shall be entitled, at its own discretion,

Only if repeated rectification within a reasonable period has failed or the BAG company
seriously and definitively refuses to rectify the defect shall the customer be entitled to
further rights under applicable law (e.g. reduction, termination of the affected contract
or § of the contract); claims for damages shall be governed by § 12.
(2) Contractual services
For services that are expressly agreed in the individual contract as services under a
contract for work and services with a promise of success and are subject to
acceptance in accordance with § 8, the following provisions shall apply in addition to § 8:
(a) Definition of defect
A defect exists if, at the time of transfer of risk, the accepted service does not have the agreed quality or is not suitable for the use specified in the contract or for
normal use.
(b) Subsequent performance
In the event of a defect, BAG-Gesellschaft is initially entitled to subsequent
performance, i.e. at its discretion, to remedy the defect or to re-perform the service
concerned. The customer must grant BAG-Gesellschaft a reasonable period of time
for subsequent performance.
(c) Failure of subsequent performance
If subsequent performance fails despite at least two attempts, becomes
unreasonable or is refused by BAG-Gesellschaft, the customer may – in accordance
with applicable law – reduce the price or withdraw from the individual contract or
part of the contract concerned. Claims for damages shall only exist within the scope
of § 12.
(3) Defects in third-party software and manufacturer services
If the subject matter of the contract is the use of third-party software or other services
provided by a manufacturer (in particular SimpleMDG, SAP products or other cloud/onpremise solutions), claims for defects relating to the function, quality, availability or
security of these products shall be governed primarily by the licence, service and
warranty conditions of the respective manufacturer.
(a) Direct contractual relationship between customer and manufacturer
If the usage relationship exists directly between the customer and the manufacturer,
BAG-Gesellschaft will support the customer in asserting claims against the
manufacturer upon request and by agreement. In this case, BAG-Gesellschaft shall
not be liable for defects in the third-party software.
(b) BAG company as reseller
If the BAG company is the customer’s contractual partner with regard to third-party
software (e.g. as a reseller), the customer’s warranty rights vis-à-vis the BAG
company are limited to the transfer of those warranty rights to which the BAG
company is entitled vis-à-vis the manufacturer. Insofar as the manufacturer
remedies the defect or provides a replacement, this shall also be deemed to fulfil
the customer’s warranty rights vis-à-vis BAG-Gesellschaft.
(4) Exclusion of warranty rights in the customer sphere
The customer’s rights in respect of defects are excluded if a defect

In such cases, the BAG company may invoice the customer separately for the additional
expenses incurred at the agreed rates if it nevertheless provides support services at the
customer’s request.
(5) Obligation to give notice of defects, obligation to investigate
The customer is obliged to check the services provided by the BAG company and the
results made available to them in a timely manner and to report any recognisable
defects in writing without delay. Hidden defects must be reported immediately after
their discovery. If the customer fails to give notice of defects in good time, the services
shall be deemed to have been approved to the extent of the omission, unless the defect
was not apparent to the customer despite careful examination. Statutory obligations to
examine and give notice of defects in commercial transactions (e.g. pursuant to § 377 of
the German Commercial Code (HGB)) remain unaffected insofar as the applicable law
provides for such obligations.
(6) Limitation period for claims for defects
Insofar as the law applicable to the individual contract permits a reduction of limitation
periods in commercial transactions, the following shall apply:
(a) Claims for defects in services under a contract for work and services shall become
time-barred within twelve (12) months of acceptance of the respective service,
unless otherwise agreed in the individual contract.
(b) Claims for defects in connection with services shall become time-barred within
twelve (12) months from the time at which the customer becomes aware of the
defect or should have become aware of it without gross negligence, but no later
than 24 months after the respective service has been rendered.
(c) Claims for defects relating to third-party software are subject to the limitation rules
of the respective manufacturer; claims by the customer against BAG-Gesellschaft
expire at the latest upon expiry of the periods within which the manufacturer
provides warranty services to BAG-Gesellschaft.
The above reduction of the limitation periods shall not apply if BAG-Gesellschaft is liable
for intent or gross negligence or if the damage results from injury to life, limb or health.
(7) Exclusivity of defect rights
The rights in respect of defects regulated in this § 9 are exhaustive, subject to any
mandatory statutory provisions. Further claims by the customer shall only exist in
accordance with § 12 (Liability).

§ 10 Liability

(1) Mandatory liability
The BAG company shall be liable to the customer in accordance with the statutory
provisions

(2) Breach of essential contractual obligations (cardinal obligations)
In the event of a slightly negligent breach of essential contractual obligations
(obligations whose fulfilment is essential for the proper execution of the contract and on
whose compliance the customer may regularly rely), the liability of the BAG company
shall be limited to the typically foreseeable damage. Essential contractual obligations
are, in particular, the main performance obligations under the respective individual
contract.
(3) Breach of non-essential obligations
In the event of a slightly negligent breach of non-essential contractual obligations, the
liability of the BAG company is excluded.
(4) Maximum liability limit
Insofar as the liability of the BAG company is not unlimited in accordance with
paragraphs (1) and (2), the total liability of the BAG company arising from and in
connection with the respective contract – regardless of the legal basis – is limited per
contract year as follows:

A different maximum liability limit may be agreed in the individual contract; in this case,
the provision in the individual contract shall take precedence.

(5) Data loss and recovery costs
In the event of loss or damage to data, the BAG company shall only be liable to the
extent that the loss could not have been avoided by appropriate data backup measures
taken by the customer. In such cases, liability shall be limited to the expense required to
restore the data with reasonable effort, provided that the customer has carried out
proper data backup.
The customer is obliged to comply with the data backup measures described in § 4 (6).
(6) Liability for vicarious agents
The above limitations of liability also apply in favour of the legal representatives,
employees and other vicarious agents of the BAG company.
(7) Liability for third-party software and manufacturer services
Insofar as damages are based on defects, malfunctions or failures of third-party
software or other services provided by a manufacturer, BAG-Gesellschaft shall only be
liable to the extent and in accordance with the claims to which BAG-Gesellschaft is
entitled against the manufacturer and which it can pass on to the customer, provided
that BAG-Gesellschaft has not itself intentionally or grossly negligently violated its own
obligations.
(8) Other exclusions of liability
The BAG company shall not be liable to any greater extent than provided for in this §
10, regardless of the legal basis. This shall not affect any mandatory further rights of the
customer under the applicable law selected in the individual contract, insofar as a
limitation or exclusion of liability is not permitted by law.

§ 11 Contract term and termination

(1) One-off project contracts
If the individual contract relates to one-off project services (e.g. analysis, conception or
implementation projects), the contract shall end automatically upon complete
fulfilment of the main performance obligations of both parties (including any
acceptance in accordance with § 8 and payment of the remuneration owed), without the
need for separate termination.
The right to extraordinary termination for good cause remains unaffected.
(2) Continuing obligations (support, service and maintenance contracts)
Insofar as ongoing services (in particular support, service, maintenance or operational
support services) are agreed in the individual contract, the following shall apply, unless
expressly stipulated otherwise in the individual contract:
(a) The contract is concluded for a minimum term of 60 months.

(b) It shall be automatically extended for a further 12 months unless terminated in
writing by one of the parties with 3 months’ notice to the end of the respective
contract term.
(c) Any deviating term provisions in the individual contract shall take precedence over
this general provision.
(3) Ordinary termination
Unless otherwise agreed in the individual contract, current contracts may be terminated
by either party with 3 months’ notice to the end of a contract period after expiry of the
agreed minimum term.
For one-off project contracts, ordinary termination during the planned project term is
generally excluded, unless expressly agreed otherwise.
(4) Extraordinary termination for good cause
The right of each party to terminate the contract for good cause remains unaffected.
Good cause shall be deemed to exist in particular if
(a) the other party, despite a written warning and the setting of a reasonable deadline,
persistently breaches essential contractual obligations and does not remedy the
breach within the set deadline,
(b) insolvency proceedings are opened against the assets of the other party or the
opening of such proceedings is rejected due to lack of assets, or the other party
suspends payments,
(c) the customer is in significant arrears with due payments (e.g. with more than two
consecutive invoices or with a significant portion of the remuneration),
(d) the customer violates essential obligations of cooperation, data protection or
compliance despite a warning and it is unreasonable for BAG-Gesellschaft to
adhere to the contract.
In cases of extraordinary termination by the BAG company, the latter shall retain its
claim to remuneration for services rendered in accordance with the contract until the
termination takes effect. Further claims shall be governed by applicable law and § 10.
(5) Effects of termination of contract
Upon termination of a contract – regardless of the legal grounds – the following shall
apply:
(a) The customer is obliged to pay all remuneration incurred and not yet settled up to
the effective date of termination, including services already rendered but not yet
invoiced.
(b) Upon receipt of payment, BAG shall, upon request and to a reasonable extent,
provide the customer with work- or project-related documents and data, insofar
as these were created within the scope of the project, the customer has rights of use
to them and their release is technically possible and economically reasonable.

(c) Contractually granted rights of use of the customer to work results (cf. § 7) remain
unaffected by the termination, subject to a reservation of rights stipulated therein
until full payment has been made, insofar as these are rights of use that are not
limited in time.
(6) Return and deletion of documents and data
Upon termination of the contract, the parties shall, at the request of the other party,
return

(7) Continued provisions
The provisions of this contract which, according to their meaning, are intended to
remain in effect beyond the termination of the contract (in particular confidentiality,
data protection, rights of use, limitations of liability, payment and indemnification
obligations, place of jurisdiction and applicable law) shall continue to apply after the
termination of the contract.

§ 12 Confidentiality / Secrecy

(1) Subject matter of secrecy
The parties undertake to treat as strictly confidential all business, technical and other
information not generally known to the other party and, where applicable, the end
customer, which becomes known to them in the course of the initiation and execution of
the contract (“confidential information”).
Confidential information includes, but is not limited to:

(2) Exceptions
The obligation to maintain confidentiality does not apply to information that the
receiving party can prove was already known
(a) already known to the receiving party at the time of conclusion of the contract or
which later becomes known to it from a third party without breach of a
confidentiality obligation,
(b) was developed independently without the use of or reference to confidential
information of the disclosing party,
(c) is generally known or becomes generally known without breach of these General
Terms and Conditions,
(d) must be disclosed due to legal regulations or a legally binding official or court
order.
In the latter case, the receiving party shall, to the extent legally permissible, inform the
disclosing party immediately of the scope and reason for the disclosure.
(3) Permissible disclosure to vicarious agents
Confidential information may only be made available to those employees, bodies or
commissioned third parties (e.g. subcontractors, consultants) who absolutely need this
information to fulfil the contract (“need-to-know principle”) and who are themselves
subject to a contractual or statutory duty of confidentiality that essentially
corresponds to the protection provided for in this § 12. The party disclosing the
information remains responsible for ensuring that its vicarious agents comply with the
confidentiality obligations.
(4) Use of confidential information
Confidential information may only be used for the purpose of providing or receiving the
contractually agreed services. Any other use, in particular for the development of
independent, competing services, is not permitted unless it is based on own,
independently developed or generally accessible information.
(5) Duration of the confidentiality obligation
The confidentiality obligation shall apply throughout the entire term of the contract and
beyond for a period of five (5) years after termination of the respective contract. For
trade and business secrets, the confidentiality obligation shall also apply for as long as
the information in question is protected as trade or business secrets under applicable
law.
(6) Return and deletion of confidential information
Upon termination of the contract and upon request by the disclosing party, confidential
information, including any copies, shall be returned at the expense of the receiving party

and, upon request, confirmed in an appropriate form. This does not apply to copies that
must be retained to a reasonable extent due to statutory retention obligations or for
evidentiary purposes; these shall also remain subject to the confidentiality obligation.
(7) Relationship to data protection regulations
Insofar as confidential information constitutes personal data within the meaning of the
applicable data protection laws, the special data protection regulations pursuant to § 13
(in particular any order processing agreements) of these general confidentiality
regulations shall take precedence. The confidentiality obligations under this § 12 shall
apply in addition.

§ 13 Data protection

(1) Applicable data protection regulations
When initiating and executing the contract, the parties shall observe the applicable data
protection regulations, in particular – where applicable – the General Data Protection
Regulation (GDPR) and the supplementary national data protection laws.
(2) Independent data processing
Each party shall be responsible for complying with data protection requirements insofar
as it processes personal data on its own responsibility (e.g. data of its respective
employees, contact persons, own customers or service providers). This includes, in
particular, ensuring an appropriate legal basis, informing the data subjects and
complying with the technical and organisational measures for the protection of personal
data.
(3) Contract processing / joint responsibility
Insofar as the BAG company processes personal data on behalf of the customer within
the scope of providing services (e.g. access to the customer’s systems, processing of the
customer’s customer or employee data), the parties shall conclude a separate agreement
on commissioned processing within the meaning of Art. 28 GDPR or, if necessary, an
agreement on joint responsibility in accordance with Art. 26 GDPR before
commencing the relevant processing.
This agreement shall form an integral part of the contract and shall take precedence
over the data protection provisions of these GTC in the event of a conflict.
(4) Purpose limitation and obligation to follow instructions
Within the scope of order processing, the BAG company processes personal data
exclusively

unless other processing is required by law. In this case, the BAG company shall inform
the customer of these legal requirements prior to processing, to the extent permitted by
law.

(5) Technical and organisational measures (TOM)
The BAG company takes appropriate technical and organisational measures to ensure
a level of protection for personal data that is appropriate to the risk. In doing so, it takes
into account, in particular, the state of the art, the implementation costs, the nature,
scope, circumstances and purposes of the processing, as well as the likelihood and
severity of the risks to the rights and freedoms of data subjects.
The essential measures can be described in a separate appendix (e.g. appendix
“Technical and organisational measures”).
(6) Use of subcontractors
If the BAG company uses subcontractors (sub-service providers) in the context of order
processing, it shall ensure that appropriate contractual agreements are made with them
to guarantee a level of protection that meets the requirements of the GDPR and the
agreements with the customer. Upon request, the BAG company will provide the
customer with a current overview of the subcontractors used, insofar as this is provided
for in the order processing agreement.
(7) Data transfers to third countries
If personal data is transferred to or processed in countries outside the European Union
(EU) or the European Economic Area (EEA), the BAG company shall ensure that the
requirements of Art. 44 et seq. GDPR or the corresponding national regulations are
met (e.g. adequacy decision of the EU Commission, EU standard contractual clauses or
comparable instruments). Details can be specified in the order processing agreement or
in the individual contract.
(8) Reporting of data protection incidents
If a party becomes aware of circumstances that could lead to unauthorised disclosure,
loss, alteration or any other security-related incident in connection with personal
data (“data protection incident”), it shall immediately inform the other party of the
incident and provide it with all available information necessary to fulfil any legal
reporting and information obligations. The parties shall coordinate further measures, in
particular the content of communications to supervisory authorities and data subjects.
(9) Rights of data subjects
If a data subject asserts data protection rights against one of the parties (e.g.
information, correction, deletion, restriction, data portability, objection) and the request
also concerns data processing for which the other party is responsible or for which the BAG company acts as a processor, the receiving party shall forward the request to the
other party without delay. The parties shall support each other to an appropriate extent
in processing such requests, insofar as this is necessary and falls within their respective
areas of responsibility.
(10) Priority of special data protection agreements
Special data protection agreements between the parties, in particular a data processing
agreement pursuant to Art. 28 GDPR, shall take precedence over these general data
protection provisions. Otherwise, the provisions of this § 13 and the special agreements
shall complement each other.

§ 14 Final provisions

(1) Applicable law and place of jurisdiction
The law applicable to the respective contract between the BAG company and the
customer and the place of jurisdiction shall be specified in the individual contract (cf. §
1 (7)).
Where reference is made in these GTC to “applicable law” or “mandatory legal
provisions”, this refers to the national law selected in the individual contract. Mandatory
legal places of jurisdiction remain unaffected.
(2) Written and text form
Amendments and additions to the contract (including these GTC) must be made in
writing or text form (e.g. email), unless a stricter form is required by law or otherwise
agreed in the individual contract. This also applies to any amendment to this clause.
There are no verbal side agreements.
(3) Assignment and transfer of rights and obligations
The customer may only transfer or assign rights and obligations arising from the
contract with the BAG company to third parties, in whole or in part, with the prior
written consent of the BAG company.
The BAG company is entitled to transfer rights and obligations arising from the contract
in whole or in part to companies affiliated with it by contract or company law, provided
that this does not unreasonably affect the legitimate interests of the customer.
(4) No connection under company law / no power of representation
The contract does not establish any corporate connection, joint venture, silent
partnership or other corporate association between BAG-Gesellschaft and the customer.
Neither party is entitled to legally represent the other party or to make declarations on
behalf of the other party without the latter’s express prior consent

(5) No third-party beneficiary
The contract, including these General Terms and Conditions, does not establish any
claims by third parties, unless expressly agreed otherwise. Rights in favour of third
parties only arise if this is expressly provided for in the individual contract.
(6) Order of precedence of the components of the contract
In the event of contradictions between provisions, the order of precedence specified in
§ 1 (4) shall apply (individual agreement → individual contract/appendices → General
Terms and Conditions). Individual agreements within the meaning of § 305b BGB (or
corresponding foreign regulations) shall take precedence over these General Terms and
Conditions in case of doubt.
(7) Multilingual versions
These GTC may be provided in several language versions (e.g. German, English,
Portuguese, Spanish). The customer will generally be provided with the language version
that corresponds to their preferred contract language.
All language versions are equivalent in content; in the event of contradictions or doubts
regarding interpretation, the language version designated as authoritative in the
individual contract shall prevail. Unless otherwise specified in the individual contract, the
English version of these GTC shall prevail.
(8) Severability clause
Should any provision of the contract, including these General Terms and Conditions, be
or become wholly or partially invalid, void or unenforceable, the validity of the remaining
provisions shall remain unaffected. The invalid, void or unenforceable provision shall be
replaced, to the extent legally permissible, by a provision that comes closest to the
economic purpose of the parties in a legally permissible manner. The same applies to
any loopholes in the provisions.

Exit mobile version