General Terms & Conditions

 

September 2017

 

1. Scope of Application

1.1. These General Terms and Conditions (hereinafter referred to as “GTC”) form the basis for all quotations and contracts for services provided by Onventis GmbH (hereinafter referred to as “Onventis”) to companies pursuant to Art. 14 of the German Civil Code (BGB) as customers. These GTC shall also apply if, as part of ongoing business relationships, they are no longer explicitly referenced at a later point in time. The GTC shall also apply if Onventis unreservedly performs the service whilst being aware of conditions of the customer which conflict with or deviate from its GTC.

1.2. Any conflicting terms of the customer shall only apply if Onventis expressly acknowledges them in writing.

 

2. Subject of the Contract

2.1. Provision, in return for payment, of the procurement solution Onventis Cloud Procurement (hereinafter referred to as “OCP”), which is hosted in a data center, as described in further detail in the quotation made by Onventis, forms the subject of the contract.

2.2. The contract also covers the provision of IT-specific services such as support, implementation, customization, consulting, the set-up of in-terfaces and the importing of files, as well as the provision of training by Onventis.

2.3. Onventis shall render the aforementioned services to the customer, as well as to the customer’s suppliers or buyers, so that they are able to use the OCP solution.

 

3. Scope of Service, Period of Performance

3.1. For the duration of the contract, Onventis shall make the OCP solution available to the customer, in return for payment, for use by the number of authorized users agreed upon in the quotation. To this end, Onventis shall operate the OCP solution on servers located in a data center that are made accessible for the customer and authorized third parties over the Internet pursuant to Clause 4.2.

3.2. The point of transfer for the contractual services provided by Onventis shall be the router output to the Internet in the data center used by Onventis. The Internet connection of the customer or of third parties authorized by the customer pursuant to Clause 4.2, maintenance of the network connection and procurement and provision of the hardware and software required on the part of the customer shall not form part of the services deliverable by Onventis.

3.3. Onventis shall provide the customer with the latest version of the OCP solution available at the time. Onventis shall notify the customer within a reasonable time frame of any changes to the OCP solution.

3.4. Only those deadlines for provision of service communicated by Onventis in text form shall apply to the services deliverable by Onventis.

3.5. Onventis shall provide the customer with access details consisting of user names and passwords for the number of authorized users agreed in the contract document. The customer and its users must immediately change all these default passwords to personal passwords that only they know

3.6. Documentation on the OCP solution and Onventis Hosting shall be made available to the customer in German or English for use via the Internet

3.7. Onventis is also entitled to arrange for the deliverable services, as stipulated in the contract, to be rendered by a third party as its subcontractor. Onventis shall enter into a commissioned data processing contract pursuant to Art. 11 of the German Federal Data Protection Act (BDSG) with subcontractors who, in connection with the rendering of services deliverable as part of the contract, could have access to personal data of the customer and its customers/contracting-parties.

 

4. Granting Right of Usage

4.1. Limited to the term of this contract, Onventis shall grant the customer the non-exclusive, non-transferable and non-sublicensable right to use the OCP solution via the Internet within the scope of performance and usage described in Onventis’ quotation. If new versions of the OCP solution are made available by Onventis during the term of the contract, the right of usage defined above shall also apply to these versions.

4.2. Subject to the restriction stipulated in Sentence 2, the customer is permitted, in its capacity as buyer, to enable its suppliers, or, in its capacity as vendor, to enable its suppliers and buyers to use the OCP solution in line with its intended purpose and to provide the access details required pursuant to Clause 3.4. Onventis may make the permission defined in Sentence 1 allowing suppliers or buyers of the customer to use functionalities of the OCP solution contingent on the suppliers or buyers undertaking to accept Onventis’ terms of use and to pay a usage fee to Onventis where appropriate.

4.3. Onventis shall grant the customer a non-exclusive, non-transferable, non-sublicensable right to use, limited to the term of the contract, any software modules created specifically for the customer or any other work results; this right stands for the agreed number of authorized users.

4.4. Detailed information concerning the version, status and functionalities of the OCP solution is specified in the service description, which forms part of Onventis’ quotation. If the OCP solution is used beyond the scope defined in the quotation, the customer shall pay the flatrate usage fee specified in Onventis’ quotation. Other claims on the part of Onventis, such as claims for omission and damages, shall remain unaffected.

4.5. Subject to the provision in Clause 4.2, usage authorization is restricted to the customer and its associated companies insofar as the customer’s share in such companies exceeds 50%.

4.6. Without prior written consent from Onventis, the customer is not entitled to process, modify or otherwise adapt the OCP solution, to connect it to other programs in any way other than via the designated interfaces, to decompile it into another form, to remove, circumvent or modify any security codes or features designed to identify the Onventis software, or to remove any information in the OCP solution and the program documentation regarding the capacity as manufacturer, copyrights or other property rights of Onventis. The provisions of Art. 69 d Para. 3 and Art. 69 e of the German Copyright Act (UrhG) shall remain unaffected.

 

5. Onventis Hosting, Data Storage

5.1. Onventis Hosting involves the provision by Onventis or by a service provider contracted by Onventis of the data center service required to use the OCP solution. The customer has the option to store data on the storage space provided to it by Onventis, which it may access in connection with the use of the OCP solution.

5.2. The OCP solution is guaranteed to be available over the Internet for an annual average of 99.5% on working days (Monday to Friday) from 06:00 to 19:00.

5.3. Onventis shall be responsible for providing storage space for the customer to be able to use the OCP solution. The customer itself shall be responsible for compliance with retention periods under commercial and tax law.

5.4. In so far as it is necessary for rendering the services deliverable as part of the contract, the customer shall grant Onventis the right to reproduce the data transmitted and stored by it. Onventis is also entitled to store the data in a back-up data center.

5.5. Onventis shall ensure that the customer’s data stored in the storage space provided by Onventis is adequately protected against data loss or damage, in particular by means of regular back-ups, virus scanning and the installation of firewalls. Furthermore, Onventis shall ensure that the data is protected against unauthorized access by third parties. Employees and subcontractors of Onventis shall only be granted access to the customer’s stored data to the extent that this is essential in order for Onventis to fulfill its contractual obligations. Otherwise, Onventis shall delete the data 24 months after the first time it is stored, unless no further data storage is otherwise agreed with the customer.

 

6. Onventis Support

6.1. Part of Onventis Support involves Onventis providing support to the customer on any technical issues and malfunctions relating to the OCP solution as described in the quotation (Technical Service Support). With regard to this service, the customer is obliged to initially describe the identified malfunction in detail and this description should be provided by the key user who was appointed prior to the software being used. This is so that Onventis can start to resolve the fault within the relevant response time as stipulated in the quotation.

6.2. In accordance with Onventis’ quotation, Onventis is obliged on the basis of a contract for services to make a user hotline available to the customer during support hours. This user hotline will be accessible via e-mail, the Onventis Online Support Portal, fax or telephone. The user hotline is intended solely for the purpose of supporting the customer in its use of the contractual services rendered by Onventis un-der this contract and for reporting faults by the customer’s authorized users (Key User Support).

 

7. Customer’s Obligations to Cooperate

7.1. The customer shall, at its own expense, establish a data connection via the Internet between the workplaces where it intends to use the OCP solution and the data transfer point specified by Onventis. Operation and maintenance of this data connection is solely the responsibility of the customer. The customer shall bear any costs incurred in relation to this data connection.

7.2. The customer also undertakes to meet the system requirements necessary to use the OCP solution as described in further detail at www.onventis.de/en/system-requirements. Onventis is entitled to modify these system requirements in the course of further development of the OCP solution. The customer shall be notified of any changes to the system requirements six (6) weeks prior to the change in question taking effect.

7.3. The customer is required to fulfill other obligations to cooperate within the context of the services offered. Unless specified in On-ventis’ quotation, these obligations to cooperate shall, in each case, be agreed upon separately in writing or in text form, e.g. in the form of activity plans. In order for Onventis to duly render the services, the customer must fulfill the defined obligations to cooperate in a timely and competent manner. Any additional expenses incurred as a result of the customer not fulfilling its obligations to cooperate in a timely manner or not accepting the service in a timely manner are to be compensated by the customer upon presentation of proof to such effect. If the customer does not fulfill the obligations to cooperate even after a reasonable grace period being granted and having since elapsed, Onventis shall be released from its duty to render the services for which the relevant obligations to cooperate are a requirement; this release shall persist for the duration of the period during which the customer fails to fulfill said obligations and for a reasonable start-up period.

7.4. The customer shall not store any content on the storage space provided where the provision, publication and use of such data is in violation of applicable law or of the rights of third parties. This is regulated further in Clause 14.

7.5. If the customer transfers data, in any form, for the purpose of storage on the storage space provided by Onventis, the customer shall create back-up copies of this data on its own data media.

7.6. The customer shall not disclose the access details provided to it to unauthorized third parties and shall protect said access details against access by third parties so as to prevent their misuse by third parties. The customer is obliged to inform Onventis immediately if the customer has reason to believe that the access data have been illegally obtained by a third party or could be misused by a third party.

7.7. The customer is obliged to inform Onventis in text form about any changes to its company that are relevant to the execution of the contract. In particular, such changes include amendments to the business address, company or legal form as well as any changes to the customer’s responsible contact persons.

 

8. Change Request

If the customer requires any additional services, extensions or other changes to the services defined in Onventis’ quotation (“change re-quest”), these are to be agreed upon and paid for separately. Such changes must be commissioned by means of a separate change re-quest process.

 

9. Remuneration, Payment Terms, Default in Payment

9.1. On the basis of Onventis’ quotation, the customer is obliged to pay the agreed remuneration for the licenses and services.

9.2. Upon purchasing the licenses for the OCP solution, the purchase price shall be calculated at the time the contract is concluded. Project services shall be invoiced pursuant to the contractual agreement. If services are billed on a time and material basis, Onventis shall calculate these services on the basis of service records.

9.3. If services provided by Onventis are remunerated on a time and material basis, such services shall be invoiced per 30 minutes worked pursuant to the agreed rates of remuneration.

9.4. The customer shall be invoiced for the agreed remuneration for providing and using the OCP solution, Onventis Support, Onventis Hosting and Onventis Software Maintenance on a monthly basis at the beginning of the month in accordance with Onventis’ quotation.

9.5. Onventis’ invoices shall be immediately due for payment upon receipt and must be paid in full within two weeks.

9.6. If the customer falls into arrears with paying the monthly rental fee, Onventis is entitled, unless the customer is not responsible for these circumstances and after setting an appropriate deadline of at least 14 days pursuant to Art. 286 of the BGB, to block the customer’s access to the OCP solution and Support, Hosting and Maintenance until payment is received, provided Onventis makes the customer aware that its access will be blocked.

9.7. Agreement to any discounted payment shall be subject to conditions precedent in the event that the customer falls into arrears with the remuneration owed.

9.8. Once the minimum term of the contract has expired, on an annual basis, Onventis shall be able, at its reasonable discretion, to increase the agreed remuneration for the license rental, Support, Hosting and Maintenance by up to 5% at the beginning of a new contract term. Onventis must notify the customer about the increase, at least in text form, with a three-month notice period of it taking effect. At the point in time at which Onventis intends the remuneration increase to take effect, if the customer does not agree to the remuneration increase, the customer may terminate the contract extraordinarily in text form within a notice period of two weeks from receiving the notice. If the customer does not terminate the contract, the customer shall be deemed to have accepted the remuneration increase.

9.9. All prices quoted are exclusive of sales tax applicable at the time of service delivery, provided that the customer has its registered office in Germany or the tax provisions for companies based outside Ger-many so require.

 

10. Term of the Contract, Termination

10.1. The contract shall be bindingly entered into for the period specified in the contract document (minimum term of the contract) and shall then be extended by 12 months at a time (extension period) unless the contract is terminated in text form by either contractual partner with a three-month notice period until the end of the minimum contract term or until the end of an extension period.

10.2. The right to termination for cause shall remain otherwise unaffected. Onventis shall have the right to terminate for cause in particular if the customer violates an essential contractual obligation such as in Clause 4, 7.4 or 7.6 in particular and despite a reasonable deadline has not resolved the violation, or if the customer has fallen into arrears with payment of the monthly remuneration for license rental, Support, Hosting and Maintenance or of a significant proportion thereof (i) for two consecutive months or (ii) within a time frame of more than two months, amounting to the charge for two months.

 

11. Data Surrender

11.1. The customer shall remain the proprietor or sole owner of the user data stored in the storage space provided to it by Onventis (hereinafter referred to as “customer data”) and is entitled to request that Onventis surrenders customer data at any time, particularly following the end of the contract. Customer data shall be surrendered either by delivering data media or by providing a download option via the Internet, depending on the option selected by the customer. The customer does not have the right to also receive the suitable software for using the customer data.

11.2. Onventis shall delete any customer data still in its possession 90 days after data having been surrendered to the customer in connection with the end of the contract unless the customer notifies Onventis within this period that the data delivered to it cannot be read or is incomplete.

 

12. Customer Rights in the Case of Material Defects and Defects of Title

12.1. License Rental, Support, Hosting and Maintenance

12.1.1. The customer must report any defects observed in the OCP solution or Onventis Hosting to Onventis without delay, describing the effects of the relevant defect in detail (notice of defects). A material defect shall exist if the contractual performance is not of the quality contractually agreed upon or is not suitable for the contractually agreed purpose. A defect of title shall exist if it has not been possible to effectively grant to the customer the rights required in order to use the contractual service for the contractual purpose.

12.1.2. In the case of justified notices of defects, Onventis shall rectify the defects within a reasonable period of time following receipt of the relevant notice of defects by means of supplementary performance of Onventis’ own choice. In the case of defects that only marginally impair use of the OCP solution or Onventis Hosting, Onventis may temporarily provide a workaround solution and then permanently rectify the defect upon delivery of the next update.

12.1.3. If, even after a second attempt and within another reasonable time frame, Onventis has still not been able to rectify the defect, the customer may reduce the agreed monthly remuneration on a pro-rata basis for the periods during which the OCP solution or Onventis Hosting were not available in the agreed capacity. The right to a reduction is limited in terms of amount to the monthly remuneration due for the defective component of the service. In the case of serious defects, the customer has the right to extraordinary termination of the relevant component of the service.

12.1.4. The customer does not have the right to assert claims owing to defects in the OCP solution or Onventis Hosting if the defect is due to the fact that the customer has modified the subject of the service without being authorized to do so or if the defect is caused by the subject of the service having not been used in accordance with the applicable service description.

 

12.2. Project Services (Onventis Services)

12.2.1. The project services provided by Onventis within the context of Onventis Services are generally services rendered under a contract for services. If, by way of exception, project services provided by Onventis on the basis of a separate agreement in a given case form the subject of a contract for work, at Onventis’ request, the customer must accept the performance results immediately following provision of the service; acceptance may not be refused due to non-critical defects. Usage of the OCP solution without a written reservation shall represent tacit acceptance.

12.2.2. Any defects in services rendered under a contract for work that arise following acceptance must be reported to Onventis by the customer without delay, describing the effects of the relevant defect in detail (notice of defects). In the case of justified notices of defects, the customer initially has the right to supplementary performance within a reasonable period of time. Onventis shall decide on the nature of the supplementary performance (rectification of the defect or replacement).

12.2.3. If the supplementary performance by Onventis is unsuccessful even after the second attempt, the customer may, at its own discretion and irrespective of any claims for damages or reimbursement of expenses in accordance with Clause 13 , request a reduction in the agreed remuneration for the relevant service rendered under a contract for work (reduction), rectify the defect itself and request the reimbursement of the necessary expenses or, if the breach of obligation by Onventis is not merely minor, withdraw from the contract with respect to the service in question.

12.2.4. Claims owing to defects in services rendered under a contract for work shall lapse 12 months following acceptance. This shall also apply to claims for damages and the reimbursement of expenses provided that they are not due to willful intent or gross negligence on the part of Onventis and do not result in loss of life, physical injury or damage to health. Otherwise, the provisions set out in Clause 13 shall apply with respect to the liability of Onventis for damages and the reimbursement of expenses owing to defects in services rendered under a contract for work.

12.2.5. The customer does not have the right to assert claims owing to defects in services rendered under a contract for work if the defect is due to the fact that the customer has modified the subject of the service without being authorized to do so or if the defect is caused by the subject of the service having not been used in accordance with the applicable service description.

 

12.3. Supplementary Performance in the Case of Defects of Title

Supplementary performance shall be carried out in the case of defects of title by Onventis providing the customer with a proper legal means of using the contractual service. Onventis may replace the contractual service concerned with a contractual service of equal value that meets the contractual provisions unless this is unacceptable to the customer. If a third party asserts claims against the customer in respect of property rights, the customer must notify Onventis in writing immediately. Onventis shall at its own discretion and upon consultation with the customer, defend against or settle the claims. The customer may not acknowledge third-party claims of its own volition. Onventis shall defend claims asserted against the customer at its own expense and shall release the customer from any reasonable costs and damages associated with said defense against the claims on the condition that they are not attributable to the customer having acted in breach of its obligations.

 

13. Liability of Onventis for Damages and Reimbursement of Expenses

13.1. Onventis shall be liable to the customer in accordance with the statutory regulations insofar as the customer asserts claims for damages or the reimbursement of expenses that are the result of willful intent on the part of Onventis or non-compliance with guarantees provided in writing, as well as in the case of culpable loss of life, physical injury or damage to health.

13.2. In the case of gross negligence, Onventis shall be liable to the extent of the foreseeable damage that should have been preventable in view of the obligation that was violated.

13.3. Otherwise, in the case of simple negligence, Onventis shall only be liable to the extent that it has violated a contractual material obligation. Contractual material obligations are those which protect the customer’s legal positions considered essential to the contract, which the contract must grant to the customer in terms of its content and purpose, or the fulfillment of which foremost enables the contract to be executed properly and the fulfillment of which the customer may rely on. Onventis’ liability for licensing and support shall hereby amount to one-and-a-half times net annual remuneration, and for IT-specific services to twice the relevant net remuneration amount or corresponding part payment amount or limited to a maximum of compensation for the foreseeable losses that typically occur.

13.4. In the case of loss of data, Onventis shall be liable only for damage that would have occurred even if the customer had backed up data properly.

13.5. Any further liability on the part of Onventis for damages and the reimbursement of expenses shall be excluded, irrespective of the legal nature of the claim asserted. The mandatory provisions of the German Product Liability Act (ProdHaftG) shall remain unaffected.

13.6. If the liability of Onventis is excluded or limited by the provisions set out above, this shall also apply to the liability of bodies of Onventis and of vicarious agents and assistants, in particular the liability of employees.

 

14. Responsibility for Data and Content

14.1. Onventis accepts no responsibility for the content of data and material that the customer stores in the storage space provided by Onventis within the context of usage of the OCP solution. Onventis is under no obligation to check the legality of data and material stored by the customer.

14.2. If a third party asserts a claim due to an infringement of rights arising from the data or material stored by the customer, Onventis reserves the right to either completely or temporarily block the data or material if there is any doubt regarding their legality. In this situation, Onventis shall ask the customer to immediately discontinue the infringement or to demonstrate the legality of the data or material. If the customer does not comply with this request, Onventis shall have the right, without prejudice to other rights and claims, to terminate the contract for cause without observing a notice period.

14.3. If the data or material stored by the customer results in legal infringements or the violation of third-party rights, the customer shall release Onventis from any resulting claims, fees, fines or other reasonable costs at the first request to do so and shall bear any resulting reasonable costs incurred by Onventis. This shall include reasonable costs for Onventis’ legal defense. However, this shall require Onventis to inform the customer about the claim in full immediately upon becoming aware of it, surrendering all information and documents related to the claim, and to give the customer sole control with regard to the defense against the claim, including, and at the customer’s discretion, the right to reach a settlement.

 

15. Force Majeure

15.1. Onventis shall be released from the obligation to perform if nonperformance of the services is due to circumstances of force majeure arising after conclusion of the contract.

15.2. Circumstances of force majeure include, for example, wars, strikes, unrest, expropriation, storms, flooding and other natural disasters as well as other circumstances for which Onventis is not responsible such as technical problems with the Internet beyond its control.

15.3. Onventis shall inform the customer of the occurrence of an event of force majeure immediately and shall inform the customer in the same manner as soon as the event of force majeure has ended.

 

16. Confidentiality, Data Protection, Data Security, Data Protection Regulation Agreement

16.1.The contractual partners undertake to maintain confidentiality regarding all business and trade secrets and other confidential information that they receive or learn from the other respective contractual partner over the course of execution of the contract. The confidential information and the documents incorporating this information must not be made accessible to third parties that are not involved in executing the contract. The contractual partners shall store and secure the information and documents in such a manner as to prevent abuse by third parties.

16.2. The confidentiality obligation does not apply to information and documents that were generally known and accessible at the time of disclosure or that were already known by the receiving contractual partner at the time of disclosure, or to information and documents that were legitimately made accessible to the receiving contractual partner at a later date by a third party.

16.3. Both contractual partners shall observe the applicable data protection regulations, particularly those applicable in Germany, and shall obligate their employees who are assigned to work in relation to this contract to maintain data confidentiality insofar as said employees are not already obligated accordingly. Onventis shall store the customer’s personal data that is required for business purposes and use this data to process orders, manage the customer relationship, provide the contractual services, process payments and avoid bad debt. For this purpose, Onventis shall also pass this data on to service partners that Onventis uses to execute the contract (such as financial institutions) where applicable.

16.4. If Onventis collects, processes or uses personal data on behalf of the customer, the contractual partners shall enter into a corresponding commissioned data processing contract pursuant to Art. 11 of the BDSG based on the template included with Onventis’ quotation. The customer must notify Onventis of this requirement in writing without delay.

16.5. Onventis is entitled to collect and process the sales data of the customer, its suppliers or buyers in order to check whether use of the OCP solution is subject to payment.Furthermore, Onventis shall analyze anonymized dynamic and master data (transaction data) relating to customers that use the OCP solution and present these analyses to its contractual partners accordingly. The customer agrees to the collection, processing and use of such data within this scope and for this purpose.

 

17. Final Provisions

17.1. The customer may only assign claims arising from contracts concluded with Onventis with Onventis’ prior written consent.

17.2. Onventis is entitled to make amendments to these GTC provided that Onventis informs the customer accordingly in writing no later than six weeks prior to the amendment taking effect. The customer may object to the amendment within a period of four weeks following receipt of the notification; otherwise, the amendment shall be deemed to have been accepted. Onventis shall explicitly inform the customer of this provision in the notification. Amendments pursuant to this Clause 17.2 shall not apply to contracts that were concluded between Onventis and the customer on the basis of these GTC before the amendment took effect. The provision set out in Clause 9.7 shall remain unaffected by this.

17.3. Otherwise, any amendments and additions to and terminations of contractual agreements based on these GTC shall require the written form, unless the respective contract or these GTC do not stipulate text form.

17.4. If individual provisions of these GTC are or become invalid, either in whole or in part, this shall not affect the validity of the remaining provisions.

17.5. The law of the Federal Republic of Germany applies. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.

17.6. The place of performance, place of supplementary performance and exclusive court of jurisdiction for any disputes arising from the contract is the registered office of Onventis. However, Onventis also remains entitled to bring action against the customer at its general court of jurisdiction.

 

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