TERMS AND CONDITIONS

General Terms and Conditions (as of 09/2019)

§ 1 General – Scope of application

  1. The General Terms and Conditions of BRIGHT Digital GmbH shall form an integral part of the contract and apply exclusively. Any other or deviating terms and conditions of the customer shall not be recognized unless they have been agreed to in writing. Deviating terms and conditions shall not be recognized even if we execute an order without reservation.
  2. These General Terms and Conditions apply to all our services and deliveries and to all obligations resulting from a contractual relationship with the customer. These terms and conditions shall also apply to all future business relationships.
  3. Agreements that deviate from or supplement these General Terms and Conditions must be agreed in writing between the parties and shall then take precedence over these General Terms and Conditions.

§ 2 Contract execution

  1. Before placing an order, the customer is obliged to inform us of all laws, standards, and other regulations based on which he wishes the service to be provided. The customer shall also provide us with all data, documents, and other information to be taken into account when providing the service, if requested, in written form. The customer shall bear any additional costs arising from a breach of these information and cooperation obligations. We shall not be liable for damages attributable to a breach of cooperation obligations or the provision of incorrect or incomplete information. Any interim results delivered must be checked by the customer immediately for the accuracy and completeness of the information about his company.
  2. Delivery and service times, as well as any changes to them, shall only be binding if they have been mutually agreed upon. If we depend on the services of one or more suppliers to provide our services, agreed service and delivery dates are subject to our suppliers providing their services on time. This reservation shall not apply to delays for which we ourselves are responsible.
  3. BRIGHT Digital GmbH shall provide the contractual services by appropriately qualified employees or third parties. The services shall be provided in accordance with the subject matter of the contract and taking into account a reasonable execution of the consulting activity either at the customer’s company, at the agreed place of use, or BRIGHT Digital GmbH’s own business premises.
  4. Both contracting parties shall appoint a responsible project manager to execute the contract.

§ 3 Conclusion and duration of the contract

  1. The duration of the contract is determined by the contracts concluded between the parties.
  2. Termination during a fixed-term contract is only possible for good cause in accordance with Section 314 of the German Civil Code (BGB).
  3. In the event of termination, the customer shall pay the contractually agreed remuneration less the costs for the part of the agreed service provision saved due to the termination..

§ 4 Terms of payment

  1. Unless otherwise agreed, we shall present the services we have provided to the customer for signature, broken down by day and number of hours. By signing, the customer acknowledges that the services provided are in accordance with the contract, both in terms of content and amount.
  2. Any material costs incurred shall be reimbursed separately. Waiting times of our employees for which the customer is responsible shall be reimbursed as working hours. Travel costs and expenses incurred with our service provision shall be charged to the customer if this has been agreed to separately in the contract.
  3. The amount to be paid is due for payment within seven (7) days net after completion of the order or invoice unless the order confirmation specifies a different payment term. The payment obligation shall be fulfilled by bank transfer to the Contractor’s specified account or by cash payment.
  4. The client is only entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognized by the contractor, or are undisputed. The client is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
  5. Remuneration is based on the terms and conditions defined in the offer. Remuneration is generally net prices plus statutory VAT.
  6. Unless otherwise agreed, invoices shall be issued monthly at the end of each calendar month.

§ 5 Rights to the result

  1. The results arising from the service provision shall become the customer’s property upon payment of the agreed remuneration.
  2. To the extent that protectable rights arise from our service, the customer shall irrevocably receive the exclusive, solely transferable, temporally, factually, and geographically unlimited right to use and exploit the result – himself or through third parties – in unchanged or modified form in all known forms of use upon payment of the agreed remuneration. This right of use and exploitation includes, in particular, the right to reproduce the result – independently or through third parties – to distribute it using any medium in physical or non-physical form, to make it accessible, to publicly reproduce it, to publish, to edit and/or redesign it, to distribute it, including by leasing and renting, and to grant third parties any rights of use to it for all types of use – solely and at their own discretion.
  3. If the above transfer of rights requires the involvement of our employees, we undertake to declare this involvement promptly following the relevant notification.
  4. We expressly waive the right to be named as the author of the result.
  5. If any costs or other financial obligations arise from the use or transfer of rights, the customer shall bear these and indemnify us against all corresponding claims.

§ 6 Customer’s obligation to cooperate in development, manufacturing, and consulting services

  1. The contracting parties undertake to show mutual consideration, to provide comprehensive and prompt information, and to take precautions against risks of disruptive influences, including from third parties.
  2. The customer shall provide all agreed cooperation and provision services in the required quality and by the agreed deadlines or deadlines required for project realization at no additional cost to us. The customer shall provide a sufficient number of its own personnel and competent contact persons for the entire duration of the project.
  3. If information or documents provided by the customer prove to be incorrect, incomplete, ambiguous, or not feasible, the customer shall make the necessary corrections and/or additions without delay. The customer shall also rectify defects or malfunctions of components provided by us without delay.

§ 7 Rights of use

  1. The results arising from the provision of the service shall become the property of the customer upon payment of the agreed remuneration.
  2. To the extent that protectable rights arise from our service, the customer shall irrevocably receive the exclusive, solely transferable, temporally, factually, and geographically unlimited right to use and exploit the result – himself or through third parties – in unchanged or modified form in all known forms of use upon payment of the agreed remuneration. This right of use and exploitation includes, in particular, the right to reproduce the result – independently or through third parties – to distribute it using any medium in physical or non-physical form, to make it accessible, to publicly reproduce it, to publish, to edit and/or redesign it, to distribute it, including by leasing and renting, and to grant third parties any rights of use to it for all types of use – solely and at their own discretion.
  3. If the above transfer of rights requires the involvement of our employees, we undertake to declare this involvement promptly following the relevant notification.
  4. We expressly waive the right to be named as the author of the result.
  5. If any costs or other financial obligations arise from the use or transfer of rights, the customer shall bear these and indemnify us against all corresponding claims.

§ 8 Deadlines and dates

  1. Only dates fixed in writing can be considered binding dates, but these must also be marked as such. All other deadlines are for guidance only. If no binding dates and deadlines are agreed, we can only be in default after a reasonable grace period. Requests for changes submitted late or subsequently by the customer extend the delivery times.
  2. If a delivery is delayed due to unforeseeable circumstances for which we are not responsible (e.g., industrial disputes, operational disruptions, transport obstacles, shortages of raw materials, official measures – in each case also at our suppliers – as well as late self-supply), we may partially or completely withdraw from the contract or postpone delivery for the duration of the disruption. We will inform the customer immediately as soon as we become aware of a delivery problem. Claims for damages by the customer are excluded.
  3. If the customer fails to meet his cooperation, collaboration, or provision obligations in whole or part, the delivery dates affected by this will no longer be binding, and in particular, we shall not be in default. After an unsuccessful reminder, we shall be entitled to demand compensation for the damage we incurred, including any additional expenses. In this case, the risk of accidental loss or deterioration of the delivery item shall also pass to the customer when the customer defaults on acceptance. If the customer does not meet his cooperation, collaboration, or provision obligations within a reasonable grace period following the further reminder, we are also entitled to terminate the contract without notice. In this case, we shall be entitled to claims for compensation and remuneration at least in an amount resulting from Section 645 of the German Civil Code; further claims on our part shall remain unaffected. We shall have the same rights if, as a result of the delay, we are no longer able to complete the project within a reasonable period of time or can only do so at significantly higher costs, for example, due to other obligations.

§ 9 Liability

  1. We shall be liable without limitation for intentional and grossly negligent conduct, for culpable injury to life, body, or health, for a violation of the Product Liability Act, or for a violation in connection with a guaranteed property. In the event of a slightly negligent breach of material contractual obligations, our liability shall be limited to compensation for typical damage foreseeable at the time the contract was concluded. Essential contractual obligations are those obligations that protect the customer’s essential legal positions, which the contract must grant to the customer according to its content and purpose, as well as those obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer can regularly rely. Otherwise, our liability is excluded regardless of the legal basis.
  2. The limitation of liability shall also apply to our employees, staff, vicarious agents, and subcontractors.
  3. The above provisions do not involve a reversal of the burden of proof.

§ 10 Confidentiality

  1. Only data, plans, and other documents and information expressly designated in writing by the client as confidential shall be subject to any confidentiality obligation agreed between the parties. If information is disclosed verbally by the client, a written classification of the information as confidential must follow within ten (10) days of disclosure. In case of doubt, the confidentiality obligation shall commence upon receipt of the written document and shall remain in force for a period of three (3) years.
  2. The contracting parties undertake to treat as confidential all information and documents of the other contracting party that are designated as confidential or which are to be treated as confidential due to the circumstances, as well as their trade and business secrets.
  3. The confidentiality obligation does not apply to information and documents that are generally known and accessible at the time of disclosure, or which were already known to the receiving contractual partner at the time of disclosure, or which were legitimately made accessible to him by third parties.

§ 11 Mediation

If the client directly or indirectly concludes an employment contract with an employee deployed during the provision of the service in the first month of the provision of the service or in direct temporal connection after the end of the provision of the service, we shall be entitled to charge 25% of the employee’s annual income plus statutory VAT as a fee. This fee shall then be reduced by 1/12 for each completed month of cooperation. The respective fee is due in one sum upon the conclusion of the employment contract between the employee and the client. The client is obliged to provide information that enables us to determine the annual income.

§ 12 Place of performance, place of jurisdiction, applicable law

  1. The place of performance is Sindelfingen.
  2. Stuttgart shall be the exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence outside Germany after the conclusion of the contract, or his domicile or usual place of residence is not known at the time the action is filed. However, we are also entitled to sue the customer at his place of business or any other permissible place of jurisdiction.
  3. All legal relationships shall be governed exclusively by German law. The rules of the UN Convention on Contracts for the International Sale of Goods of 1980 and other conflict of laws shall not apply.

§ 13 Final provision

Our privacy policy is available at:  https://bright-digital.at/en/privacy-policy/

§ 14 Final provision

  1. Our registered office shall be the exclusive place of jurisdiction for all present and future claims arising from the business relationship with merchants. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after the conclusion of the contract, or his domicile or usual place of residence is not known at the time the action is filed. However, we are also entitled to sue the customer at his place of business or any other permissible place of jurisdiction.
  2. German law shall apply exclusively to all legal relationships.
  3. Should any point of the contractual relationship with the supplier be or later become partially or completely invalid for reasons other than Sections 305-310 of the German Civil Code, the validity of the remaining provisions shall not be affected unless the performance of the contract represents an unreasonable hardship for one of the parties, taking into account the following provision. The parties are aware of the case law of the Federal Court of Justice, according to which a severability clause merely reverses the burden of proof. However, it is the express will of the parties to maintain the validity of the remaining contractual provisions under all circumstances and thus waive Section 139 of the German Civil Code in its entirety. The same applies to a contractual loophole. The invalid or unenforceable provision shall be replaced by an appropriate provision that comes closest to what these parties intended or would have intended if they had considered the point when concluding the contract or later adding a provision.