Legal

General Terms and Conditions

Scope: delivery of software services by Tech42 Software Solutions GmbH to business customers as defined by § 14 BGB.

Courtesy translation only. This is a translation of our German General Terms and Conditions (AGB) for reference. The German version is the only legally binding version. In case of discrepancy, the German text prevails.

§ 1 Basis of the contract

1.1: The General Terms and Conditions set out here (hereinafter referred to as "GTC") govern the offer of services by Tech42 Software Solutions GmbH (hereinafter "Tech42") to business customers as defined by § 14 BGB. These services primarily include the development or modification of software solutions such as cloud, web, desktop, and mobile applications, as well as related consulting and other supporting services.
1.2: The specific details of the services, including their nature, scope, schedule, and payment, are set out in separate contracts that refer to these GTC. Such a contract usually takes effect by mutual signature or by the customer's acceptance of an offer from Tech42. In the event of any inconsistencies between the individual contract and these GTC, the terms of the individual contract or other specific contract documents prevail. The customer's general terms and conditions do not apply, even if Tech42 performs the agreed services without explicit objection.
1.3: The current version of these GTC also applies to future business transactions regarding similar services between Tech42 and the customer, even without an explicit reference each time.

§ 2 Distinction between service and work contracts

2.1: Unless specifically agreed otherwise, software development work is performed by Tech42 as services pursuant to § 611 BGB. In such cases the customer is responsible for planning and executing the project, including adherence to professional standards, schedules, and budgets.
2.2: Under certain circumstances, as set out in an individual contract or as arising from the necessary distribution of tasks and risks between the parties (for example, when Tech42 implements a binding specification provided by the customer), Tech42 may also offer the customer work performance pursuant to § 631 BGB. In such exceptional cases, in addition to the existing GTC, specific terms for work performance as defined in §§ 10 and 11 apply. However, if agile project methods are used or customer employees are substantially involved in the design or development, these specific work-performance terms do not apply. In such cases, Tech42 does not warrant the success of the performance.

§ 3 General rules for providing services

3.1: Tech42 undertakes to provide all services in accordance with the currently applicable technical standard, in particular the recognised principles of software development, and to perform all tasks with due care and through qualified personnel.
3.2: When developing or adapting software for the customer, Tech42 will create and hand over documentation (such as development or user documentation) only if expressly agreed in the individual contract. In the absence of any contrary agreement in the individual contract, the customer receives the software only in object code, with delivery by download, remote installation, or on a suitable storage medium as agreed.
3.3: An initial schedule for performing the services is established; the dates and deadlines it contains are non-binding unless specifically designated as binding. These dates may be delayed or extended depending on how long Tech42 has to wait for the necessary cooperation from the customer or if unforeseeable events — such as force majeure — prevent Tech42 from fulfilling the contract, plus a reasonable lead time after these obstacles end.
3.4: Each party designates a responsible contact person for the project and the collaboration, authorised to give or receive the necessary declarations and to make required decisions. These contact persons are only changed for compelling reasons, of which the other party is informed without delay.
3.5: Tech42 is entitled to use, at its own discretion, permanent employees or subcontractors to provide the services. The selection of personnel is entirely up to Tech42. If certain Tech42 employees are named in a contract, this is based on the current state of knowledge and planning. The employees act in their tasks independently of the place of performance, without instruction-giving authority by the customer, and do not enter into an employment relationship with the customer. If needed, Tech42 can replace employees, taking care to provide equivalent qualifications. The customer may request replacement of an employee for important cause, with the customer bearing the cost of onboarding the new employee.
3.6: Tech42 may produce minutes of project meetings. These minutes become binding on both sides once they are presented to the customer and not objected to in writing with reasons within one week. Tech42 will point out this binding effect each time.

§ 4 Agile methodology

4.1: If the parties decide in the individual contract to apply an agile model to the project, specific arrangements apply. An agile methodology is particularly chosen when customer requirements are not yet fully specified at the time of contract conclusion and both sides want to develop the details of the service and the final result in an iterative, joint process. Whether an agile project is pursued, including the use of agile methods like Scrum, is established in the individual contract. These agile provisions take precedence over other GTC provisions, and an alternative approach may be defined in the individual contract.
4.2: The initial description of the service to be provided and its ongoing adjustment are based primarily on the product vision and the initial product backlog. The services are organised in packages worked on in 2–3 week cycles, the so-called sprints. At the start of each sprint, the parties define the goals and tasks for the sprint in a planning meeting. The goal is to have a usable software increment at the end of each sprint. Planning and adjustment of the work are carried out using an agile project management tool provided by Tech42.
4.3: Unless otherwise specified in the individual contract, the customer designates a qualified and experienced employee as Product Owner (PO). The PO is responsible for defining customer requirements and for the content of the product backlog. The PO decides on prioritisation and implementation and bears budget responsibility. The PO is responsible for accepting the work at the end of each sprint and may only be replaced with Tech42's consent or for important cause. Tech42 may request a change of PO if the PO lacks the necessary qualifications.
4.4: A Tech42 employee acts similarly to a Scrum Master as project manager and ensures adherence to agile processes. This project manager fosters a productive working environment for the team, resolves issues, and strengthens shared accountability.
4.5: Each partial service completed in a sprint must be accepted individually unless otherwise agreed. Acceptance takes place either at the end of the sprint or at the beginning of the next one. Services not accepted within 5 business days after the end of the sprint are automatically deemed accepted, unless the customer explicitly reports defects. Unmet requirements are returned to the product backlog and addressed in a later sprint.
4.6: Both parties acknowledge that the agile approach requires intensive cooperation from the customer beyond the usual measure. The customer commits to providing appropriate resources and qualified personnel for the project. These employees must be able to make the necessary decisions. Delays arising from the absence of customer cooperation are at the customer's expense, while Tech42 retains its claim to compensation.

§ 5 Changes to the service

5.1: If the customer intends to modify the requirements or the agreed scope of the services, the parties strive to implement these changes primarily according to agile project principles. This may include compensating additional effort by foregoing future development cycles or by simplifications (the "exchange without additional cost" procedure). The relevant product or sprint backlogs and other descriptive documents are adjusted jointly by the parties.
5.2: For significant modifications — such as changes to the fundamental product vision, changes that cause noticeably higher costs, adjustments to services or components already accepted, or where the "exchange without additional cost" procedure does not deliver the desired result — Tech42 will evaluate the change request and submit a corresponding implementation proposal to the customer. All additional costs for implementing such changes are borne by the customer. A change to the service is only made after conclusion of a supplementary agreement.
5.3: For evaluating a change request and preparing a proposal for the addendum, Tech42 may charge compensation based on actual effort, unless otherwise agreed. Depending on the conditions of the supplementary contract, agreed times and deadlines may extend by at least the number of days during which the work had to be interrupted because of the change request, plus a reasonable lead time after the interruption. The parties seek to expedite the change process to keep project delays minimal.
5.4: Tech42 reserves the right to refuse implementation of a customer change request if the change is technically infeasible, negative impact on already delivered services must be feared, or for capacity reasons implementation appears temporarily or permanently impracticable or unreasonable.

§ 6 Customer responsibility and cooperation

6.1: As an essential obligation under this contract, the customer provides — without charge — the cooperation listed below and any other cooperation necessary for the service, punctually, correctly, and completely. This also includes cooperation required by the use of agile methods (see § 4).
6.2: The customer warrants that its employees have the necessary qualifications and experience for the cooperation activities and are available for these tasks to the extent required.
6.3: The customer prepares the necessary, consistent information and documents, the required IT infrastructure, test cases, test data, and a test environment, and participates in the elaboration of specifications and the execution of tests.
6.4: Within its premises, the customer creates all the conditions required for proper performance of the services. The customer provides Tech42 with the necessary access to its hardware and software — both remotely and on-site — throughout the term of the contract.
6.5: The customer is responsible for providing and licensing all third-party products (hardware, software, databases, etc.) needed for delivery of the services. The customer ensures smooth operation and availability of these third-party products, where required by concluding licence and maintenance contracts with the respective manufacturers or providers.
6.6: Verification of possible conflicts of the services with third-party intellectual property rights (e.g. patents, trademarks, registered designs), corresponding registrations, and verification of legality are the customer's responsibility, unless otherwise regulated in the individual contract.
6.7: If the customer engages further service providers, they are considered the customer's vicarious agents. The customer takes responsibility for coordinating, harmonising, and supervising the various service providers and ensures that their activities do not cause delays, waiting times, or additional costs for Tech42.
6.8: The customer takes appropriate emergency precautions (e.g. regular data backup, IT system checks) to maintain at least limited operation in case of system failure. Unless otherwise agreed in writing in individual cases, Tech42 employees may assume that all relevant data is sufficiently backed up.
6.9: Costs arising from delayed, missing, or defective customer cooperation — including waiting and downtime as well as additional effort — are invoiced to the customer at the agreed rates. If required customer cooperation is not provided even after a reasonable deadline has been set, and Tech42 provides these services as a substitute, the resulting additional costs are also calculated based on effort. Tech42's further claims remain unaffected.

§ 7 Software usage rights

7.1: Tech42 retains all copyrights, industrial property rights, and other rights to the software created for or provided to the customer, including design and concept documents, documentation, and specifications, regardless of whether the software was developed according to customer requirements or with the customer's involvement.
7.2: When using tools, program libraries, and open source software that Tech42 provides to the customer, the respective open source licence conditions take precedence. In addition, the licence conditions specified in these GTC apply. Tech42 provides the customer with the applicable open source licence conditions free of charge on request. The customer is obliged to ensure compliance with these open source licence conditions in its area.
7.3: Unless otherwise agreed in the individual contract, upon full payment of the agreed compensation the customer receives a non-exclusive, non-transferable, irrevocable right to use the software and other work results created or provided by Tech42, unlimited in time and place, exclusively for the business purposes agreed between the parties. Within the agreed use, the customer may make copies of the software for backup purposes, which must be marked as such.
7.4: Editing or otherwise modifying the software by the customer, including further developments, is only permitted if the parties have expressly agreed on the handover of source code and no deviating provisions on usage rights have been specified in the individual contract. For changes to the source code made by the customer or third parties on its behalf, Tech42 assumes no liability for resulting effects on other parts of the software. The customer bears the burden of proof for the origin of defects that were not caused by its own modifications.
7.5: Sublicensing, renting, or any other form of time-limited transfer of the software to third parties — including use in SaaS, outsourcing, or data centre operations — or any other paid or unpaid transfer of the software by or for third parties, requires a written agreement in the respective individual contract.

§ 8 Confidentiality, data protection, and mention as a reference

8.1: The parties agree to treat operational and business secrets entrusted to them or made accessible to them in the course of the contractual relationship as confidential and to use them exclusively for the purposes defined in the individual contract. Access to this confidential information is granted only to employees necessary for the performance of the individual contract. This confidentiality obligation persists for three years beyond the end of the individual contract.
8.2: The confidentiality agreement does not extend to information that was already known to the customer beforehand, is generally known or becomes known without fault of the customer, was disclosed by a third party without confidentiality obligation, or was independently developed by the customer.
8.3: The provisions of this section do not restrict the parties' right to continue using ideas, concepts, or methods that became part of the general knowledge of employees of both sides during the contract term and which are related to the contractual services, as long as no intellectual property rights of the other party or third parties are infringed.
8.4: Both parties undertake to carefully keep all business documents and items received from each other and to return them promptly on request. They ensure that third parties do not have access to this information.
8.5: In handling personal data, Tech42 obligates its employees in writing to comply with the General Data Protection Regulation (GDPR) and to treat such data confidentially. Tech42 may pass personal data on to subcontractors if necessary for performance of the commissioned services. The customer ensures that the legal requirements for transmission and processing of personal data by Tech42 are met.
8.6: With the customer's consent to being named as a reference, Tech42 may use the customer's name and corporate marks, brands, and logos for advertising purposes, for example on its own website or in publications.

§ 9 Compensation and payment terms

9.1: The amount of compensation is determined individually in the individual contract. Unless otherwise agreed between the parties, compensation is based on actual effort, calculated according to the daily rates defined in the individual contract. If specific person-days are stated in Tech42's offer or in the contract, these are considered approximate estimates unless explicitly stated otherwise.
9.2: Compensation based on effort is invoiced to the customer at the beginning of the month following the month of service delivery, based on Tech42's customary work records. Tech42 proactively informs the customer if the estimated number of person-days is exceeded. On request, Tech42 provides a monthly budget report.
9.3: Customers may reserve fixed contingents of person-days for specific time windows. Services not used within the defined period must still be paid for according to the conditions of the individual contract, unless Tech42 was able to deploy the relevant employees elsewhere.
9.4: The agreed daily rates apply for an eight-hour working day. Work beyond that is charged proportionally on an hourly basis. For work on weekends, public holidays (according to the holiday regulations in Hamburg and on 24 and 31 December), and for night work (8 p.m. to 7 a.m.) performed at the customer's request, a 50% surcharge on the regular daily rate applies.
9.5: Travel costs comprise the actual expenses for Tech42 employees travelling from the company seat to the customer location, with Tech42 selecting the mode of transport. Reimbursement of travel costs by the customer is governed by the arrangements in the individual contract. Travel times count as working times and are billed to the customer at a reduced rate of 50% of the hourly rate.
9.6: All invoices are to be paid by the customer within 30 days of receipt without deductions. All prices stated are exclusive of the applicable statutory value added tax.
9.7: If the customer falls into default of payment, Tech42 is entitled — after an unsuccessful expiry of a two-week grace period — to immediately suspend the contractual services until the customer has met all payment obligations and settled all outstanding claims. Tech42 reserves further rights in case of customer default.

§ 10 Execution and acceptance of work performance

10.1: If Tech42 provides work performance, or if an explicit acceptance of development services is agreed between the parties, they jointly define the conditions and procedure for acceptance, whether in the individual contract or in project management. Review of sprint results is primarily governed by § 4.
10.2: Certain parts of the service must be accepted independently by the customer if Tech42 requests it and the results are ready for acceptance. By such partial acceptance, the customer accepts the respective work result, with each partial acceptance having the legal effect of acceptance pursuant to § 640 BGB. Partial acceptances already performed are not affected by the outcome of later acceptances. A final or overall acceptance is performed only if expressly agreed between the parties.
10.3: Tech42 makes the work results to be assessed available to the customer and informs the customer of readiness for acceptance. The customer is obliged to perform the acceptance check within two weeks and to declare acceptance, provided no material defect is identified that significantly impairs or prevents use. Defects that preclude acceptance are corrected by Tech42 either in subsequent sprints or as part of rectification.
10.4: Acceptance or partial acceptance may also occur implicitly — for example through use of the work results in regular operation, through unrestricted payment, or through ordering further services that build on the results to be assessed. Work results are also deemed accepted if the customer does not raise material defects in writing within two weeks of Tech42's notification of readiness for acceptance.

§ 11 Warranty for work performance

11.1: Tech42 warrants that the work-contract results handed over to the customer correspond to the contractually agreed performance description. For services performed according to the customer's requirements and specifications, or for the integration of third-party or customer elements into developments or existing systems at the customer's request, Tech42 assumes no liability for the nature of these external components or for the results of implementing customer requirements.
11.2: Impairments of function arising — for example — from the customer's incorrect use of the results, from the customer's system environment, or from other reasons within the customer's sphere of responsibility, are not defects. Liability for defects further presupposes that the results have not been modified by the customer or used in a manner contrary to contractual agreements, unless the customer can prove that the defect is unaffected thereby.
11.3: In case of a defect, warranty by Tech42 is provided through supplementary performance, at Tech42's option by delivery of a defect-free work or by remedying the defect. Defect remediation may also consist of Tech42 first proposing acceptable measures to the customer for avoiding or minimising the effects of the defect.
11.4: If supplementary performance ultimately fails (after at least two reasonable attempts per clearly indicated defect), the customer has the right to withdraw from the contract or demand a reduction of compensation. Given the complexity of the services, more than two rectification attempts may be considered reasonable. For only minor deviations from the agreed quality, there is no right of withdrawal. Tech42 provides compensation for damages or reimbursement of futile expenses only within the conditions stated in § 13 of the GTC.
11.5: If Tech42 carries out work for defect-finding or rectification without being obliged to do so, Tech42 may charge for these services separately based on effort. This applies in particular if a defect reported by the customer cannot be identified or cannot be attributed to Tech42. There is no claim to compensation if the customer could not have recognised that there was no defect in Tech42's service.
11.6: The limitation period for the customer's claims for defects is one year. This does not apply if Tech42 caused a defect intentionally or with gross negligence, fraudulently concealed the defect, or to the extent that statutory rules prevent a shortening of the limitation period.

§ 12 Third-party rights and infringement of intellectual property rights

12.1: Tech42 assures that the software provided to the customer does not infringe the rights of third parties and, in accordance with the following conditions, protects the customer against claims by third parties arising from infringements of intellectual property rights.
12.2: If third parties assert claims against the customer for infringement of their intellectual property rights by software developed by Tech42, the customer informs Tech42 immediately in writing in full. Tech42 has the right but not the obligation to deal with the third party independently, both in court and out of court. If Tech42 decides to do so, Tech42 expects reasonable support from the customer without charge and the transfer of all powers necessary for defence. The customer will not acknowledge any third-party claims without Tech42's consent.
12.3: If the software has legal defects at the time of risk transfer, Tech42 obtains for the customer the right to legally unproblematic use of the software. To remedy the defect, Tech42 may modify the software in question or replace it with equivalent software. If an infringement of intellectual property rights or legal disputes with third parties can be avoided or remedied by using a newer version of the software provided free of charge by Tech42, the customer is — for the purpose of mitigating damages — obliged to accept and use this version, unless the customer can prove that this is unreasonable.
12.4: Tech42 undertakes — within the liability limits set out in § 13 of these GTC — to indemnify the customer against all damages caused by an infringement of intellectual property rights and based on a legal defect attributable to Tech42 in software used in accordance with the contract. For the customer's claims due to legal defects, the provisions on material defects in § 11 apply accordingly.
12.5: Tech42 assumes no liability for third-party claims based on alleged infringements of intellectual property rights if these are attributable to modification of the software by the customer, violation of the agreed terms of use, or use of the software for purposes other than those contractually specified.

§ 13 Liability provisions

13.1: Tech42 assumes liability for material damages, financial losses, and futile expenses — regardless of the legal basis (e.g. due to defects, delays, unlawful acts, or other breaches of duty) — only within the following conditions:
13.1.1: For intentional acts and gross negligence as well as for given guarantees, Tech42 is liable without limitation.
13.1.2: For less serious breaches, Tech42 is liable only if an essential contractual duty is breached, the fulfilment of which is critical for achieving the contractual purpose and on which the customer may rely (so-called cardinal duty), and only for damages that were foreseeable for Tech42 and typically expected, limited however to the amount specified in the contract or, if no amount is specified there, to the value of the respective contract.
13.2: Tech42 is liable for loss of data only within the limits of § 13.1, provided the customer has, through reasonable measures, ensured that this data can be recovered from data stocks held in machine-readable form at any time with reasonable effort.
13.3: The described liability limitations apply equally to Tech42's statutory representatives, vicarious agents, and employees.
13.4: These provisions do not affect liability for damages to health, body, or life, or liability under the Product Liability Act.

§ 14 Non-solicitation clause

14.1: During the term of the individual contract and for one year after its termination, the parties undertake mutually not to solicit or employ in any form, directly or through another company in which they have a material stake, any employee of the other party (or its subcontractors) who is involved in the delivery of services. Solicitation is presumed if the hiring of the employee cannot be clearly traced back to a public job posting.
14.2: In case of breach of this agreement, a contractual penalty in the amount of the gross annual salary of the employee concerned is due. This does not exclude further claims by the parties. A contractual penalty already paid is offset against any damages claims.

§ 15 Term and termination of the contract

15.1: If a specific term is set for the duration of the individual contract, ordinary termination before its end is not possible. If the defined period expires without an extension agreement, the contractual relationship ends automatically. If there is no explicit term provision in the individual contract, either party may terminate the contract with one month's notice to the end of any calendar month. For work contracts, only the statutory rule applies.
15.2: The possibility for both parties to terminate the individual contract extraordinarily for important cause remains unaffected. Such termination requires written form to be valid.
15.3: If one of the parties exercises its right of termination, Tech42 is obliged to hand over to the customer immediately all services and work results delivered up to that point. Tech42 is entitled to withhold the handover until open compensation claims are settled.

§ 16 Final provisions

16.1: The transfer or assignment of rights and obligations under the contract by the customer to third parties, including the customer's subsidiaries, requires Tech42's prior written consent. The provisions of § 354a HGB remain unaffected.
16.2: Any modifications and amendments to the contract, as well as all essential communications (such as scheduling and contract terminations), must be in writing to be valid. Electronic transmission of a document signed by an authorised person and scanned, sent by email, also satisfies the agreed written form. Waiver of the written-form requirement is only possible by written agreement. For general communications, especially in the ordinary course of the project, text form, e.g. via email or through the agile project management tool, is sufficient.
16.3: The law of the Federal Republic of Germany applies, excluding the conflict-of-laws provisions of private international law and the UN Convention on Contracts for the International Sale of Goods. For all disputes arising from the contract, Karlsruhe is the exclusive place of jurisdiction. Tech42 reserves the right to file suit at other nationally or internationally competent courts.
16.4: If certain parts of these GTC or of the contract are or become invalid, or if a gap arises in the contract, this does not affect the validity of the remaining provisions. In place of the ineffective or missing clauses, the parties agree on a valid provision that comes economically closest to what was originally intended.