General Terms & Conditions
1. Relationship with DataWrk
1.1. DataWrk acts as an intermediary broker between consultant and customer.
1.2. DataWrk acts independently from both consultant and customer and accepts no obligations and/or liability arising out of any relationship between users, including each Contract for Service and/or order form(s).
1.3. DataWrk is not liable to the consultant or customer for any liabilities which might be considered to be in relation to a purported course of employment of any kind between DataWrk and consultant and/or customer. For the avoidance of doubt, DataWrk is not party to any employment contract of any kind with consultant and/or customer; and, as such:
(i) the consultant is free to undertake and/or refuse to undertake any work referred to them by DataWrk. The consultant is self-employment and made aware that he/she is responsible for adequate insurance cover for statutory pension insurance and health insurance. He/she may also be subject to the statutory pension insurance obligation in accordance with Section 2 S. 1 No. 9 SGB VI and are responsible for paying contributions to the statutory pension insurance themselves. DataWrk is not subject to social security contributions for the consultant.
(ii) the customer is not obliged to accept any provision of consultancy services from any consultant referred to them by
DataWrk, unless such time that an agreement has been established.
(iii) DataWrk is not and shall not be liable for any expenses (including insurance of any kind, travel, administration, legal, etc.) incurred by consultant and/or customer, save as for payment of invoices which are considered to be due in
relation to the normal work carried out by the consultant for the customer.
2. General | Scope
2.1 These General Contractual Terms and Conditions (GCTC) shall become an integral part of all contracts between DisCo DataWrk UG, Nehringstraße 23, 10585 Berlin and its contractual partner, unless a deviating written agreement is made in individual cases.
2.2 These GCTC shall also apply in their respective current version to future contracts between DataWrk and the same customer, without DataWrk having to refer to them in each individual case. They shall be deemed to have been confirmed by the customer at the latest upon performance by DataWrk.
2.3 These GCTC shall apply exclusively. Any deviating, conflicting or supplementary general contractual terms and conditions of the customer shall only become part of the contract if DataWrk has agreed to their validity in writing.
2.4 If the terms "written," "in writing," or grammatical variations thereof are used in these GCTC, they generally refer to "written" in accordance with § 126 of the German Civil Code (BGB). The electronic exchange of copies of hand-signed or (unqualified) electronically signed documents is sufficient for this purpose. Simple emails are only sufficient if specified in these GCTC.
2.5 Legally relevant statements and notifications by the customer made to DataWrk after signing this contract (e.g. setting of deadlines, reminders, declaration of withdrawal) shall require a written form to be effective (e.g. e-email), unless explicitly stipulated otherwise in these GCTC.
3. Contractual object
3.1 DataWrk provides consulting, training, and software development services to its customers. The specific subject matter of the contract concluded between DataWrk and the customer is determined by the offer accepted by the customer from DataWrk.
3.2 Unless expressly agreed otherwise in writing, DataWrk's software development is carried out using the so-called Scrum methodology, an approach in software engineering that follows an incremental and iterative approach to software development.
3.3 DataWrk provides services to the customer (Sections 611 et seq. of the German Civil Code). DataWrk only provides works and services (Sections 631 et seq. of the German Civil Code) if expressly agreed in writing.
3.4 The customer is solely responsible for achieving its technical and economic corporate objectives. As part of its consulting services, DataWrk makes recommendations to customers, whose implementation remains the responsibility of the customer.
3.5 The contract between DataWrk and the customer does not establish a civil law partnership or any other form of partnership. No consultant are leased in accordance with the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz).
4. Cooperation | Customer's Obligations to Cooperate
4.1 The timely cooperation of the customer is essential for DataWrk to fulfill its contractual obligations. Therefore, the customer is obliged, free of charge and if necessary, to:
(i) designate contacts for DataWrk who have the professional expertise on the requirements from the business processes and technical knowledge on the customer's existing systems, and ensure their availability as required;
(ii) provide DataWrk with workspace, IT systems, data (especially test systems and test data), and telecommunication facilities, along with corresponding infrastructure; and
(iii) enable DataWrk to have remote access to the necessary IT infrastructure and provide the necessary tools for it.
4.2 The customer will promptly resolve obstacles in the provision of services by DataWrk that lie within its area of responsibility (including the third-party services that the customer must provide). The expenses incurred by DataWrk for identifying, analyzing, and forwarding such obstacles are not part of DataWrk's contractually owed services and will be invoiced to the customer separately based on the time spent (see Clause 9).
4.3 If DataWrk cannot fulfill its contractual obligations due to the customer's non-compliance with the obligation to cooperate, DataWrk will be released from the obligation to provide services to that extent.
4.4 In the event of delayed or inadequate performance of the obligation to cooperate by the customer, deadlines (see Clause 4) will be adjusted accordingly. DataWrk's entitlement to payment of the contractual fee remains unaffected. The customer is obliged to compensate DataWrk for the costs incurred due to the delayed or inadequate performance of the obligation to cooperate to a reasonable extent.
4.5 In case of the execution of software or consulting projects, DataWrk and the customer are obliged, on DataWrk's corresponding request, to appoint a project manager responsible for the project throughout the entire duration of the project and each of their respective deputies. In this case, DataWrk and the customer are required to authorize the project managers and their deputies to issue binding statements relevant to the project in the course of the contract implementation on their behalf or at least to empower them to promptly make project-relevant decisions on behalf of authorized persons.
5.1 The deadlines and dates provided by DataWrk are each non-binding target dates, unless DataWrk expressly and in writing designates the dates as binding performance dates.
5.2 If DataWrk is unable to provide a contractual service within the planned deadline, DataWrk will inform the customer in text form (e.g. email) of the reasons for the delay and the expected duration of the delay, and will provide new target dates. To the extent possible, DataWrk will also outline measures to avoid similar causes of delay in the future.
5.3 If DataWrk is temporarily unable to provide the contractual service due to force majeure, any deadlines will be postponed for a period that is appropriate to the duration of the impediment to performance, plus a reasonable lead time. Force majeure shall include, in particular, strikes, lockouts, power supply interruptions, and other comparable events that are not the responsibility of DataWrk.
6. Intellectual Property Rights | Usage Rights
6.1 With full payment of the agreed remuneration, the customer acquires the right to exclusive, unlimited and unrestricted use of software individually created by DataWrk for the customer. This also applies to other services provided by DataWrk that do not involve the creation of software.
6.2 The customer is aware that DataWrk uses software in the provision of its services and that software components, including open source software (third-party components), may be included that were not developed by DataWrk but by third parties. The customer is informed of the special risks associated with the use of third-party components, particularly that the use of open source software may be subject to restrictions and/or special conditions of use under the relevant licensing terms, and that rights of third parties may be infringed. DataWrk will inform the customer of such third-party components before their use and provide the relevant licensing terms upon request. The customer agrees to bear these risks.
7. Source code | Documentation
7.1 In the case of the development of individual software, DataWrk provides the customer with a copy of the source code of the created software upon completion of the respective project.
7.2 DataWrk does not owe any documentation of software beyond that. In particular, DataWrk does not owe the creation of a user manual, the creation and updating of an operations manual, the establishment of online help or any other user documentation to the customer.
8. Duties in case of defects of title
8.1 If third parties make claims against the customer due to the infringement of third-party rights (including intellectual property rights) arising from the use of DataWrk's services, the customer must immediately inform DataWrk in writing (email is sufficient). DataWrk will, at its discretion and at its own expense, fulfill, defend, or settle the claims. The customer grants DataWrk the sole authority to decide on rights, defense, and settlement negotiations. The customer will provide DataWrk with the necessary powers of attorney on a case-by-case basis and support DataWrk in defending the claims to a reasonable extent.
8.2 In the event of impairment of the contractual use of (individual) software due to an intellectual property defect, DataWrk will remedy the reason for the complaint within a reasonable time frame. This will be done at DataWrk's discretion by either acquiring the right to continue using the services or by modifying or replacing the affected services to a reasonable extent.
8.3 DataWrk is liable for the infringement of third-party rights (including intellectual property rights) only if the (individual) software is used in accordance with the contract. DataWrk is not liable if the (individual) software is modified by the customer or third parties, connected with programs or data not provided by DataWrk or approved by DataWrk in writing in advance, put into operation, or used, and this results in third-party claims.
8.4 DataWrk develops individual software according to the customer's specifications and wishes and therefore does not assume liability for the software being free of patents. Similarly, DataWrk does not assume liability for intellectual property infringements in open source software. The above-mentioned liability disclaimer does not apply in cases of intentional misconduct by DataWrk.
8.5 If claims are made against DataWrk under the above provisions in paragraphs 7.3 or 7.4, the customer will indemnify DataWrk upon first request.
9. Liability of DisCo DataWrk UG
9.1 DataWrk fulfills its contractually owed obligations with the care of a prudent merchant.
9.2 DataWrk is liable, regardless of the legal basis, in case of intentional, gross negligence.
9.3 In case of simple negligence, DataWrk is liable only
(i) for damages resulting from injury to life, body or health; and
(ii) for damages resulting from the breach of a material contractual obligation (i.e. an obligation whose fulfillment is necessary for the proper execution of the contract and on whose compliance the customer regularly relies or can rely). In the latter case, DataWrk's liability is limited to the compensation of the foreseeable, typically occurring damage.
9.4 In case of insured damages, DataWrk's liability is limited to the amount of coverage provided by the insurer. At present, DataWrk maintains liability insurance that is limited in case of simple and grossly negligent damage causing incidents to a coverage amount of EUR 3,000,000 for personal and property damages and EUR 1,000,000 for financial damages per individual case, whereby the double amount in each insurance year represents the maximum claim.
9.5 Otherwise, DataWrk's liability is excluded.
9.6 The liability of DataWrk for its legal representatives, agents or other assistants is completely excluded.
9.7 The customer shall notify DataWrk of any damages immediately in writing (e.g. email), so that DataWrk can be informed as early as possible and, if necessary, take joint measures with the customer to mitigate damages. Without prejudice to this, the customer shall take measures to limit damages.
9.8 Contributory negligence on the part of the customer and third parties attributable to the customer, e.g. due to insufficient co-operation or ancillary obligations, organizational errors, insufficient data backup or lack of virus protection, shall be taken into account.
9.9 DataWrk is liable for data loss or data recovery only to the extent that the customer has taken all necessary and reasonable data backup measures and has ensured that the data can be reconstructed from data material that is kept in machine-readable form with reasonable effort.
9.10 DataWrk is not liable for damages resulting from the intended use of customer-provided equipment (e.g. work computers). The customer is solely responsible for the proper operability of such equipment (e.g. with regard to data protection and data security, in particular functioning encryption and virus protection).
10. Remuneration | Accounting
10.1 DataWrk's contractual services shall be remunerated by the customer based on the time spent, at the agreed hourly or daily rates. The remuneration is calculated based on performance records using DataWrk's time tracking arrangement. Flat-rate compensation by DataWrk shall only be made if expressly provided for in the offer and/or expressly agreed upon in writing.
10.2 DataWrk's remuneration is exclusive of travel expenses and allowances. Travel expenses and allowances for on-site services at the customer's premises shall be fully reimbursed by the customer upon submission of proof. Details are specified in the offer accepted by the customer from DataWrk.
10.3 The contractual remuneration as well as travel expenses and allowances shall be invoiced by DataWrk on a monthly basis. Invoices are due and payable by the customer within 14 days of the invoice date without deduction. The agreed remuneration is understood to be exclusive of applicable statutory value-added tax.
11. Offsetting prohibition | Right of retention
The customer may only offset claims and assert a right of retention to the extent that the claims have been legally established, undisputed, or acknowledged by DataWrk.
12.1 DataWrk and the customer mutually agree to maintain strict confidentiality regarding all information they become aware of or receive during the course of fulfilling the contract, which is recognizable as trade or business secrets or otherwise confidential information of the other party, and to not record, disclose, or otherwise use such information, except as required to achieve the respective contract purpose.
12.2 DataWrk and the customer are obliged to ensure, through appropriate contractual arrangements with their consultant and agents, that they are also subject to a confidentiality obligation corresponding to the above provision without limitation in time.
13.1 DataWrk and the customer are obliged to comply with applicable legal provisions for the protection of personal data when processing personal data in connection with the contract.
13.2 To the extent that DataWrk, in the course of providing services to the customer, comes into contact with personal data of the customer, DataWrk acts as a processor exclusively on behalf and according to the instructions of the customer and exclusively for the purpose of fulfilling the relevant contract. In this case, DataWrk is obliged to take appropriate technical and organizational measures to protect such data. The customer remains responsible for the lawfulness of the collection, processing and use of such data as well as for the protection of the rights of the data subjects in accordance with applicable legal provisions. The parties may regulate details in a separate agreement on data processing.
14. Substantial non-solicitation
14.1 The customer is advised that the contractual cooperation requires a special relationship of trust between DataWrk and the customer. Therefore, DataWrk and the customer are obliged not to directly or indirectly poach or attempt to poach the consultant of the other party during the term of the contract and for a period of 12 months after its termination. This does not apply if the employee in question has already left the services of the other party for at least 6 months at the time of the first contact by the contacting party or if the other party has given its written consent before the first contact.
14.2 In case of a violation of the above obligation, the violating party is obliged to pay a contractual penalty to the violated party for each violation in the amount of the last three gross monthly salaries of the respective employee. The violated party reserves the right to claim further damages.
15. Special provisions for work services
15.1 If and to the extent that DataWrk and the customer expressly agree in the offer and/or in writing that DataWrk will provide work services for the customer, the customer shall accept these services in accordance with § 640 of the German Civil Code (BGB) to the agreed extent and at the agreed time. The customer is obliged to fully test the functionality of the software released for acceptance by DataWrk within 10 working days at their own expense (acceptance test) upon receipt of the relevant statement from DataWrk. Acceptance tests must be carried out on an IT infrastructure to which DataWrk has full administrative access. The customer ensures that acceptance tests are comprehensible and reproducible for DataWrk. DataWrk consultant are entitled to be present at the customer's acceptance tests.
15.2 If no defects or only minor defects are found in an acceptance test, the customer will immediately issue an acceptance declaration. If a significant defect is identified by the customer during an acceptance test, they will immediately notify DataWrk and describe the defect as precisely as possible along with a detailed reproduction guide. After a joint error analysis carried out by the parties, DataWrk will remedy the defect within a reasonable period of time. This will be followed by a subsequent acceptance by the customer.
15.3 If no formal acceptance is carried out in accordance with Clause 14.1, the services shall be deemed accepted if
(i) the customer does not accept the services within a reasonable period of time set by DataWrk, although the customer is obliged to do so;
(ii) the customer has not reported a significant defect in writing within 4 weeks after the software has been released for acceptance by DataWrk in accordance with Clause 14.1; or
(iii) the customer has been using the services for a period of 4 weeks.
15.4 DataWrk warrants that the services are free of defects that would render them unsuitable for the contractually agreed use or significantly reduce their value at the time of acceptance. DataWrk is only liable for third-party components used and provided free of charge in cases of intent or gross negligence. The type and extent of any liability of third parties with respect to third-party components arise from the respective license terms.
15.5 DataWrk will remedy defects through subsequent performance, either by rectification or replacement at their discretion. If rectification fails several times (at least three times) with regard to the same defect and the customer cannot reasonably be expected to wait any longer, the customer may withdraw from the contract after a reasonable grace period and threat of rejection or reduce the agreed remuneration. In addition, the customer may claim damages or reimbursement of any wasted expenses within the framework of statutory provisions. The customer's right to remedy defects themselves in accordance with §§ 634 no. 2, 637 of the German Civil Code (BGB) is excluded.
15.6 If obstacles to performance by DataWrk (see Clause 3.2) arise due to circumstances for which the customer is responsible (including ancillary services to be provided by the customer by third parties), DataWrk retains the full entitlement to remuneration, deviating from § 645 para. 1 BGB. § 645 para. 2 BGB remains unaffected.
15.7 DataWrk's liability for defects shall be waived if changes have been made to the software covered by the contract by the customer or third parties, or if the software covered by the contract is used outside the agreed infrastructure, unless the customer proves that the defect is not attributable to the changes made or the use outside the agreed infrastructure.
16. Runtime | Termination
16.1 The contract term and termination regulations result from the offer accepted by the customer from DataWrk. If nothing is agreed upon, the contract is concluded for an indefinite period.
16.2 Subject to a different provision in the contract, contracts between DataWrk and the customer can be terminated by giving six weeks' notice to the end of a calendar month.
16.3 The right to terminate the contract without notice for cause (§ 314 BGB) remains unaffected. A material reason that entitles DataWrk to terminate the contract without notice exists in particular if:
(i) the customer is in arrears with payment of the fee or a significant portion of the fee for two consecutive terms;
(ii) the customer is in arrears with payment of an amount equal to two months' fee over a period of two or more terms; or
(iii) the customer's financial circumstances deteriorate to such an extent that proper fulfillment of the contract can no longer be expected, even if no grounds for insolvency exist within the meaning of §§ 17 to 19 InsO (German Insolvency Act).
16.4 Any termination must be in writing.
17. Final Provisions
17.1 The place of performance for the contractually agreed services is the registered office of DataWrk, unless otherwise stated in the offer signed by the customer.
17.2 The contract between the customer and DataWrk as well as the provisions of these GTC reflect the agreements between the parties regarding the subject matter of the contract in full and replace all preceding written, verbal, and implied agreements. No collateral agreements, written, verbal or implied, have been made.
17.3 Changes or additions to the contract require the written form as well as explicit reference to the contract for their effectiveness. This also applies to an agreement to deviate from or waive this form requirement.
17.4 Should any provision of the contract or these GTC be or become void, invalid, unenforceable or infeasible, the validity and enforceability of the remaining provisions shall not be affected. DataWrk and the customer are obliged to agree on a provision that comes closest to what the parties would have agreed if they had recognized the invalidity of the provision within the scope of legal possibilities and the purpose of the contract. The same applies to any gaps in the contract or these GTC.
17.5 The contract and these GTC are subject exclusively to German law, excluding the provisions of private international law that lead to the application of the law of another state than Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
17.6 The exclusive place of jurisdiction for all disputes arising from or in connection with the contract and these GTC is Karlsruhe, Germany.
DisCo DataWrk UG
Commercial Register No.: HRB 243168 B
Status: April 2023