Generals Terms and Conditions of Contract

2. Performance of Services

1. consolut shall perform the services agreed upon in the Service Certificate properly and professionally, in compliance with any specifications agreed for the respective services, and in accordance with the state of the art applicable at the time of performance. Unless the services to be provided are clearly classified as work services (Werkleistungen), the services rendered by consolut shall be deemed services (Dienstleistungen). 

2. consolut is entitled to have the services performed by other companies within the consolut group or by third parties acting as subcontractors. 

3. Customer’s Duties to Cooperate and Provide Resources 

3.1  General

1. The services described in this Section 3 shall be provided by the customer. The parties may agree on additional duties to cooperate and provide resources in the respective Service Certificates. Any costs incurred in this context shall be borne by the customer. 

2. The customer is free to delegate these services to other service providers. In such cases, the customer shall be liable for the actions or omissions of these third parties as if they were the customer’s own. 

3. The customer shall provide all support services required for consolut’s performance in full and in a timely manner, and shall make all necessary information and documentation available completely and on time. 

4. The customer shall grant consolut access to its premises and technical infrastructure to the extent necessary for the performance of the contractual services and, where required, shall provide rooms and other work equipment. 

5. The customer undertakes to inform consolut immediately upon becoming aware of any significant changes that directly or indirectly affect the customer’s IT system for which consolut is providing the contractual services (“Customer’s IT System”), unless such changes were made by consolut. 

6. In this context, significant changes as referred to in paragraph 5 include, in particular, any changes that materially affect consolut’s service delivery. Examples include: 
   • Release upgrades 
   • Installation of support packages 
   • Go-live of projects 
   • Material changes to business processes 

7. The customer undertakes to back up all relevant systems at least once per day. The customer is responsible for verifying the completeness and accuracy of the backups. This obligation does not apply if and to the extent that the parties have expressly agreed, in individual cases (particularly in a Service Certificate), that consolut will provide data backup services. 

3.2  Review of Services

1. The customer shall promptly test the services provided by consolut to determine their suitability for use in the productive environment. 

2. The customer shall inform consolut as soon as a service request is, from the customer’s perspective, considered resolved. consolut’s right to demonstrate the resolution of a service request by other means remains unaffected. 

3.3  Licenses and Maintenance Agreement

1. The customer shall procure, at their own expense and risk, all licenses required for the performance of services for the entire duration of the relevant Service Certificate. 

2. If consolut provides services related to the customer’s SAP software, the customer shall ensure that a valid maintenance agreement for this SAP software exists throughout the entire duration of the relevant Service Certificate. This is necessary because certain services can only be provided by SAP SE. 

3. If no valid or only a limited maintenance agreement exists, consolut may no longer be able to provide the agreed services to the customer, or only with additional effort. The customer shall bear the associated risk. 

3.4  System Access and Users 

1. In order to perform the contractual services, consolut requires appropriate system access. The systems must be accessible at all times during the supported time window. Access is provided via a secure site-to-site VPN connection between the customer and consolut. The customer shall ensure the necessary technical prerequisites on their side for the entire duration of the relevant Service Certificate. 

3. The customer shall provide consolut with user accounts that have the permissions deemed necessary by consolut for service delivery. 

4. Technical details may be agreed upon by the parties within the scope of the respective Service Certificate. 

4. Place and Time of Performance, Delay

1. The place and time of performance for the contractual services shall be determined by the respective Service Certificate. 

2. Compliance with performance deadlines requires the complete and timely fulfillment of the customer’s obligations to cooperate and provide resources as set out in these GTC or the relevant Service Certificate. If these obligations are not fulfilled or not fulfilled on time, the deadlines shall be extended accordingly; this does not apply if and to the extent that consolut is responsible for the delay in the customer’s obligations. 

3. If the failure to meet a deadline or date agreed in writing is due to an event of force majeure, consolut shall be entitled to postpone the fulfillment of its contractual obligations for the duration of the disruption and a reasonable start-up period. 

5. Change Request Procedure

1. The procedure described below shall apply if services outside the scope agreed in the Service Certificate are to be provided (“Change Request” or “CR”). 

2. By way of exception, a CR is not required if the customer requests additional support services and the expected effort does not exceed one person-day. In such cases, consolut will invoice the additional effort in accordance with Section 6.2. 

3. Each CR must be submitted in writing and sent to the contact person defined in the relevant Service Certificate. Email is sufficient to meet the written form requirement. 

4. The CR must include at least the following information:
   • Description of the requested change 
     
   • Purpose and objective of the requested change
   • Specific circumstances and background to be considered in relation to the requested change 
     
   • Urgency of the requested change

5. consolut will begin implementing the change only after the CR has been agreed upon in writing. There is no obligation to accept a CR. Email is sufficient to meet the written form requirement. 

6. If the parties do not reach an agreement on a CR, the scope and conditions of services agreed in the relevant Service Certificate shall remain unchanged. 

6. Compensation

1. The compensation for the contractual services is defined in the respective service agreements. All prices are quoted net, plus the applicable value-added tax.

2. If compensation based on time and materials has been agreed upon, or if additional services not specified in the service agreements are commissioned in writing, the hourly/daily rates stated in the service agreements shall apply.

3. Invoices are payable within 14 days from the invoice date without any deduction, unless otherwise specified in the service agreement.

4. Upon the customer’s request, consolut will provide the information, documents, and records necessary for invoice verification.

5. If the customer is in default with the payment of the monthly fees for two consecutive months, consolut may terminate the affected service agreement as well as all other service agreements concluded with the customer without notice. If not all service agreements are affected by such termination, the unaffected agreements shall remain in force, and the provisions of these General Terms and Conditions shall continue to apply to them.

6. In the event of termination without notice due to payment default as described above, consolut may demand a lump-sum compensation, payable immediately, equal to half of the monthly fees of all service agreements affected by the termination, calculated up to the earliest possible termination date of those agreements. If compensation based on time and materials has been agreed upon, the monthly fee shall be deemed to be the average monthly compensation over the last six (6) months of the contract. The obligation to pay the lump-sum compensation does not apply if the customer can prove that no damage has occurred or that the damage is significantly lower than the stated lump sum. Any further claims for damages by consolut remain unaffected.

7. Liability

1. The liability of consolut, regardless of the legal basis, for all claims arising from and in connection with service agreements concluded in accordance with these General Terms and Conditions (GTC), is conclusively regulated as follows.

2. consolut shall be liable without limitation in accordance with statutory provisions for damages resulting from intentional or grossly negligent breaches of duty by consolut or its legal representatives or vicarious agents.

3. In cases of slight negligence, consolut shall only be liable:
   • for damages resulting from injury to life, body, or health caused by consolut or its legal representatives or vicarious agents;
   • for damages arising from the breach of essential contractual obligations by consolut or its legal representatives or vicarious agents. In such cases, consolut’s liability is limited to foreseeable damages that are typical for this type of contract. Essential contractual obligations are those whose fulfillment is necessary for the proper execution of the contract and on which the customer may regularly rely.

4. Any strict liability of consolut for initial defects pursuant to § 536a of the German Civil Code (BGB) is excluded. consolut shall therefore only be liable for such initial defects if and to the extent that consolut is responsible for them.

5. The above limitations and exclusions of liability do not apply to claims under the Product Liability Act or to any guarantees expressly assumed by consolut in this agreement.

6. consolut shall only be liable for data loss if the damage would also have occurred if the customer had backed up the data at appropriate intervals in a suitable manner. This does not apply if consolut is contractually obligated to perform the data backup. In any case, liability is limited to the cost of restoring the data. All other exclusions and limitations of liability remain unaffected.

7. The customer is obliged to report damages, losses, and defects in writing without delay.

8. Personal liability of employees, representatives, and corporate bodies of the contracting parties is excluded unless the respective person acted with intent.

8. Data Protection and Confidentiality

1. The contracting parties shall comply with applicable data protection laws and enter into any necessary agreements to that effect. If consolut acts as a data processor with respect to the customer’s personal data, the parties shall conclude a data processing agreement.

2. Documents, knowledge, and experience shared by one party with the other may only be used for the purpose of fulfilling the Service Certificates agreed under these GTC. Furthermore, both parties agree to maintain confidentiality regarding the content of the contractual relationship and any insights gained about the other party during its execution.

3. The parties undertake not to disclose confidential information to third parties. Information is generally considered confidential unless explicitly marked as non-confidential by the disclosing party. The customer agrees not to analyze or reverse engineer consolut’s services (e.g., software), either personally or through third parties.

4. The term “third party” does not include affiliated companies (as defined in Section 15 of the German Stock Corporation Act – AktG) of the contracting parties, any companies within the consolut group, or subcontractors, provided they are bound by appropriate confidentiality obligations. Affiliated companies of consolut include: consolut group gmbh, consolut.gmbh, consolut.services.gmbh, consolut international ag, consolut hellas mon ike, consolut international llc, CONSOLUT DO BRASIL LTDA.

5. The obligation to maintain confidentiality and refrain from using information shall not apply:
   • if the information was demonstrably known to the receiving party prior to disclosure or was publicly known or generally accessible prior to disclosure
   • if the information becomes publicly known or generally accessible after disclosure without any involvement or fault of the receiving party
   • if the information is substantially the same as information disclosed or made accessible to the receiving party at any time by a third party lawfully entitled to do so
   • if disclosure is required by law, court order, or administrative decision, or is necessary for the enforcement of legal claims. If there are indications of legal or administrative proceedings that may lead to the disclosure of confidential information, the party involved shall inform the other party immediately and shall not disclose the information without prior notice, to the extent legally permissible
   • if two (2) years have passed since the termination of the cooperation between the parties

6. The parties agree to instruct their employees accordingly and to bind them to confidentiality.

7. The customer agrees to be named as a reference.

9. Term and Termination

1. Each Service Certificate enters into force upon its agreement (see Section 1.1) and shall have the fixed term specified therein. Upon expiry of the fixed term, the Service Certificate shall automatically be renewed for successive one-year periods unless terminated in writing by either party with three (3) months’ notice prior to the end of the term.

2. The right to terminate individual Service Certificates for good cause remains unaffected. Good cause for termination exists in particular if:
   • there is a deterioration in the financial circumstances of the other party compared to the time of contract conclusion, such that the party is no longer able to fulfill its obligations under these GTC and/or the Service Certificates, especially in cases of suspension of payments or services, enforcement measures against the party’s assets, or the initiation of insolvency or other judicial or extrajudicial debt settlement proceedings;
   • the other party commits a serious breach of data protection and/or confidentiality obligations.

10. Force Majeure

1. Neither party shall be liable for damages or losses suffered by the other party due to events of force majeure. “Force majeure” includes all events beyond the reasonable control of a party, such as natural disasters, war, civil war, hostage-taking, riots, terrorist acts, export or import restrictions, pandemics, epidemics, and other comparable events.

2. A party unable to fulfill its contractual obligations due to force majeure must promptly inform the other party of the nature of the event and the expected duration. If the force majeure event lasts longer than 60 calendar days, either party may terminate the affected Service Certificate with immediate effect and without compensation.

11. Final Provisions

1. The assignment of rights and claims against consolut is only permitted with prior written consent from consolut. Section 354a of the German Commercial Code (HGB) remains unaffected.

2. A right of retention may only be asserted based on counterclaims arising from the same contractual relationship. The customer may only offset claims that are legally established or undisputed. This does not apply if the offset is based on a claim arising from defective performance by consolut.

3. There are no verbal side agreements. Amendments or additions to these GTC or other contractual documents must be made in writing to be valid, unless otherwise provided above. The same applies to any waiver of the written form requirement. The exchange of signed electronic copies via email or agreements signed using simple electronic signatures (e.g., DocuSign) is sufficient. The mere exchange of emails is not sufficient.

4. These GTC and the agreements made under them are governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

5. The exclusive place of jurisdiction for all disputes arising from the contractual relationship is Mannheim. However, consolut is also entitled to seek legal recourse at the customer’s place of business.

6. Should any provision of these GTC or the agreements made under them be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by a provision that most closely reflects the economic intent of the original. The same applies if the parties later discover that these GTC or any agreement under them contain a gap.