Terms & Conditions

 

of Retresco GmbH, Grünberger Straße 44a, 10245 Berlin, represented by its general managers Alexander Siebert and Johannes Sommer, District Court of Charlottenburg, register number HRB 117049B.

 

0. Introduction

Unless specifically agreed otherwise in writing, the following provisions bindingly apply to contracts with Retresco GmbH (hereinafter, “Retresco”). Where the parties have agreed upon customised arrangements, these General Business Terms and Conditions apply by way of supplementation to any gaps in such arrangements. As a precaution, contrary general business terms and conditions of the contracting partner are rejected.

Please take note of these General Business Terms and Conditions. Retresco’s offer is directed solely to companies, government authorities, and institutions and not to private consumers.

For the purpose of improved readability, Retresco’s contracting partner is referred to in the following as the “Customer”.

 

1. Who we are

Retresco offers, inter alia, automated search technologies for the internet and data bases, including the following services:

 

A. Software solutions

depending on the type of service and the contract content, as a Software-as-a-Service (“SaaS”) or cloud computing and/or as software conveyance and/or as a service.

as well as

B. Services

care and maintenance services (“service level agreements = SLAs”) for the software solutions and services described under A.

SLAs must be expressly agreed upon or ordered as a separate service in addition to the software solution.

In the alternative, Retresco also offers to host software solutions itself outside of SaaS offers.

 

2. How contracts come about

Contracts with Retresco normally come about through written offer and written acceptance, either by

 

A. Tender (pitch)

with the Customer’s request to Retresco and other competitors to submit a binding offer (so-called tender or pitch) and acceptance of Retresco’s offer by the Customer.

These General Business Terms and Conditions apply to – in the alternative, in a supplementary manner – such areas of the contractual relationship that are not addressed in the tender documentation and/or Retresco’s offer to the tender.

B. Conclusion of contract through negotiation

with Retresco’s written offer to the Customer and written acceptance by the Customer. Normally, email correspondence satisfies the requirement of written form.

An offer can be accepted only unconditionally. In cases of doubt, the offer is to be amended by Retresco or the Customer following agreement between the parties in such a way that acceptance can occur unconditionally by the respective other party.

In the case of several offers for what appears to be the same service purpose, the most recent offer applies exclusively in each case. Where not specified in the offer, Retresco is bound by the offer for 20 business days.

The requirement of unconditional acceptance also applies where Retresco has several binding offers at its disposal at the same time and it conveys them to the Customer for express, optional acceptance. Where agreed upon in advance with the Customer, Retresco can demand cost sharing or reimbursement of expenses for particularly involved offer calculations.

Cost estimates are non-binding and are provided to the Customer solely for learning about Retresco’s offer of services. By using a cost estimate, the Customer gains knowledge about the services for which it would like to request a binding offer. This Customer can accept this offer based on the cost estimate or request an amended offer. A cost estimate is normally replaced by verbal consultation by Retresco.

If the Customer would like to accept only parts of a uniform offer, a new offer must be requested for the partial service. In such cases, Retresco must verify whether the desired service is technically and economically divisible and then, if appropriate, recalculate the individual service.

Cost estimates, offers, and acceptances should by designated as such by the parties as literally as possible in order to avoid misunderstandings. In cases of doubt, applicable is that which the parties apparently wanted to declare from the standpoint of an objective third party.

If, by way of exception, contract conclusion took place by telephone, Retresco will promptly prepare a written contract confirmation and send it by fax and/or email (if a fax is not available) to the Customer’s business headquarters or business address. The content of such contract confirmation is then considered to be binding contract content unless the Customer promptly objects in writing to what is rendered there.

For order volumes of EUR 20,000 or more, Retresco will normally request a confirmation by fax or regular mail of a contract concluded by email (counter-signature of the summary contract confirmation).

 

3. Contract performance

A. Software solutions

Retresco’s services are normally broken down into two phases – concept creation (planning) and concept implementation (realisation).

 

Phase 1: Retresco will first create a detailed concept on the basis of the requirements communicated by the Customer.

The (detailed) concept is the draft elaborated in detail by Retresco for the implementation of the actual software solution or the main service. The concept must be inspected and accepted by the Customer if the implementation proposal is consistent with the contract.

 

Phase 2: On the basis of the detailed concept, Retresco will implement the service technically. The implemented service must likewise be inspected and accepted.

After each concept is handed over, and after notification of implementation of the service, Retresco will request inspection and acceptance. If the service is not consistent with the contract, the Customer can demand that it be improved in accordance with statutory provisions. If a contractually consistent service is not inspected and accepted by the reasonable deadline set by Retresco, inspection and acceptance are deemed to have occurred. It is equivalent to inspection and acceptance if the Customer uses Retresco’s services in the course of trade (e.g. “go live” of components delivered by Retresco, either in whole or in part).

Unless agreed otherwise, Retresco performs installation at the Customer in the case of software conveyance.

B. Service agreements

Service agreements (“SLAs”) are services based on the software solutions and services provided by Retresco and cover maintenance and care, including software updates by Retresco to the extent specified in the SLA and for the period specified in the SLA. The provision of updates is at the discretion of Retresco; these are determined by technical requirements and are not tied to any regular time intervals.

SLAs are calculated with individual service offer for the Customer’s needs. Unless agreed otherwise, a standard SLA covers maintenance and care service by Retresco staff of two person-hours per week.

In the case of errors that arise spontaneously, Retresco’s response time in connection with the SLA is

– Mo-Fr from 6:00 a.m. to 8:00 p.m.: 4 hours

– all other times and on holidays: 6 hours.

 

Response time means the time after which Retresco will at the latest begin the process of problem analysis and error search and not the time within which error elimination must be completed.

Unless expressly agreed otherwise, care and maintenance work is performed as remote maintenance.

The SLA’s monthly allotment of hours lapses on the last day of each month and is not carried forward to subsequent months.

Retresco is to be compensated for services beyond this at the rate of EUR 112.50 per technician-hour. When the SLA hourly budget is exceeded, Retresco will notify the Customer about the added costs that are arising and the anticipated work effort. The work time actually expended is to be compensated. In each case, Retresco will prepare a detailed invoice for this, with a listing of the services rendered.

During its term, the SLA replaces the statutory warranty to the extent that Retresco primarily begins with the response time agreed upon in the SLA with the resolution of any emerging problems and also has the right to eliminate in full any and all emerging problems in connection with the SLA.

If the problem is evidently attributable to Retresco services, the elimination of the error in connection with the SLA does not lead to any additional costs for the Customer. If the problem is demonstrably attributable to actions by the Customer, technician-hours that exceed the hourly allotment specified in the SLA are invoiced at the rate of EUR 112.50 per technician-hour. In the latter cases, Retresco will clearly document the cause of the problem for the Customer.

C. Assignments of rights and warranty

For Retresco’s services outside of an SLA, the statutory warranty applies to the software in the condition in which it is normally conveyed to the Customer on a data storage medium (as unmodified initial version).* Elimination of errors in connection with an SLA takes precedence; if the elimination of an error coincides with the warranty reason, Retresco can extend the maintenance period in its discretion and without additional costs for the Customer up until elimination of the error to an extent that both parties can reasonably be expected to accept.

 

*= In determining whether a statutory or contractual warranty reason exists, it must be taken into consideration that software development is always a dynamic process and that in most cases opportunities to improve and enhance software do not arise until it is operated at one or more customers through monitoring and the associated experiential values.

Therefore, the software is free of defects within the meaning of these contract terms if it generally performs the presumed functions with an average reliability that is customary for such software or is specified by Retresco. The ability to constantly improve the software is thus inherent in the system and is not an indication of any defect in the initial software.

When the software is conveyed, the source code and/or the right to revise the source code (and thus to revise the software) is assigned to the Customer only if this was expressly agreed upon, the rights for this were expressly assigned, and compensation for this designated to that effect was agreed upon in writing in each case (“buyout”).

In the event of an agreed conveyance of the source code, the revision of same or of the software itself is prohibited as long as Retresco is at the same time obligated in connection with an SLA to maintain and care for the system. This is necessary for the purpose of performing under the SLA agreement so that Retresco can seamlessly track the respective state of revision of the software and fulfil in conformity with the contract the duties assigned to Retresco in connection with the SLA. If the Customer revises the source code prior to expiry of the SLA, Retresco is released from the service obligations and retains the agreed claim to compensation for the term.

Rights, including rights of use, are assigned only to the extent necessary for performance of the contract in accordance with its provisions. Unless agreed differently in writing, the Customer is given a non-exclusive right of use for the term of the contract (exception: a software purchase was agreed upon). Retresco has the exclusive right to sub-licence the services of Retresco.

Person-hours going beyond the SLA are to be compensated at the rate of EUR 112.50 per technician-hour, unless the matter has to do with technical problems for which Retresco is evidently responsible.

Retresco is not aware that the services you offer would infringe on third-party intellectual property rights. If contrary to expectations this should prove to be the case, Retresco is given the right, at its choice, to change the service at its own expense in such a way that third-party intellectual property rights are no longer infringed (with nearly equivalent suitability for use in conformity with the contract) or to acquire the necessary rights of use. Only after Retresco has refused to do so is the Customer given the right to terminate without notice.

D. Compensation

Unless expressly agreed otherwise, the service is compensated in the flat-rate amount specified in the contract. Prices are net of applicable value-added tax.

Twenty-five percent of the total price is due after inspection and acceptance of the concept, and the remaining 75% after inspection and acceptance of the overall service.

Unless expressly agreed otherwise, services that exceed the contractually agreed service are invoiced at the rate of EUR 112.50 per technician-hour.

Deviations from the contractually agreed service (“change request”) are considered to be a supplement to the contract or additional orders and are therefore to be ordered separately in writing. In this case, Retresco will submit a calculation of the anticipated added effort and expense, which may be exceeded without the Customer’s consent by a maximum of 15%. Deviations and additional orders must be ordered by the Customer expressly – normally, in writing – or are considered to be not ordered. Retresco will promptly send an order confirmation by fax and/or email in the case of any orders placed by telephone. Unless this order confirmation is objected to promptly (normally, within one business day), the order is deemed given as described there.

Following expiry of the inspection and acceptance deadline, or, if applicable, when the subject of the contract is put into operation, Retresco will transmit an invoice for the compensation due in each case. Payments are due upon receipt of the invoice and must be paid into the below-listed account within 20 days, indicating the offer number.

Deutsche Bank

Account: 11 20 310

Bank routing code: 100 70 124

E. Cooperation by the Customer

The Customer will support Retresco with regard to the work necessary for contract performance by furnishing Retresco with all information and access necessary to provide the service.

F. Liability

Retresco’s liability is limited to typically foreseeable damages and at the same time to the value of the order. The foregoing does not apply in the case of injury to life, body, or health, as well as in the case of wilful misconduct or gross fault. In such cases, statutory liability generally applies. Retresco’s offer prices normally make reference to this limitation of liability. Should, prior to contract conclusion, the Customer expressly desire that Retresco assume farther-reaching liability, Retresco will correspondingly expand the scope of liability and add the costs associated with this to the offer.

In general, Retresco is not liable for damages that the Customer itself (or its assistants) causes to itself or third parties. This particularly applies where Retresco’s services are used by the Customer in breach of contract and/or in excess of statutory provisions. Furthermore, Retresco is particularly not liable for claims by third parties against the Customer, if third parties sue the Customer on account of search results that were achieved through the use of Retresco search technologies. Retresco does not owe the editorial control of the search results or the content of the data base provided by the Customer.

G. Rights

1. Software

Retresco grants the Customer non-exclusive rights to use the software solutions necessary for performance of the contract for the term of the contract. Assignment of the rights of use is subject to the proviso of payment in full of the compensation. When the contract expires, all rights revert to Retresco, unless a software purchase and/or the handing over of the source code and/or a continuation of the right to operate the contractual services is separately agreed upon in writing and separately compensated.

2. Content

Retresco acts solely as a technical service provider.

Retresco will store (duplicate) and process (catalogue or prepare and summarise for the semantic search function) the Customer’s data and content solely on behalf of the Customer and, unless expressly agreed otherwise, for use by the Customer.

Retresco will neither utilise the Customer’s data and content for itself nor make same accessible to third parties.

Retresco does not claim any rights of its own in and to the Customer’s data and content and the summaries prepared for the search function. Preparation of content is done in an automated manner.

Absent the Customer’s express instructions, Retresco will not store any personal data (data of the Customer’s customers). If Retresco is engaged to store personal data, Retresco will comply with the applicable provisions of data protection.

The Customer’s data and content, including the summaries prepared for the search function, will be promptly deleted by Retresco either following the ending of the contract or a corresponding individual order or (if earlier in time) at the Customer’s direct instruction.

Retresco will permanently store only such data as are stringently necessary for billing and, if applicable, submission to the tax authorities in accordance with applicable law.

H. Amendment of these General Business Terms and Conditions

Retresco reserves the right to substantively amend this General Business Terms and Conditions, including after conclusion of contract, as well as to supplement them and then release them as a new version.

Retresco will promptly notify the Customer by email of each new version of the General Business Terms and Conditions and at the same time transmit the new version to the Customer with a typographic highlighting of the changes. In addition, Retresco will summarise each major change in an announcement letter.

For this purpose, the Customer must provide Retresco at all times with a current email address. Once notification is given, the new version is deemed approved if the Customer fails to object in writing within two weeks (letter, fax, or email) or continues to use the contractual services without objection after the indicated validity date of the new version.

In the event that the Customer objects to changes and/or supplementations necessary for legal or technical reasons, Retresco is entitled to a special right of termination.

 I. Final provisions

If these General Business Terms and Conditions or parts hereof should be ineffective, the parties will, with respect to the ineffective part, agree on an effective arrangement that most closely approximates the objectively desired content of the provision.

Berlin is the place of jurisdiction.

 

Version 21 February 2013