General Terms and Conditions

User:

Possehl Secure GmbH

Eiler Straße 3N

51107 Cologne, Germany

(hereinafter referred to as “Contractor”)

Status: December 6, 2024

1. Preamble

These General Terms and Conditions (“GTC”) shall become an integral part of all contracts of the Contractor with entrepreneurs (“Customer/s”) upon inclusion. The GTC contain the general part of the applicable terms and conditions. They are supplemented by the supplementary terms and conditions specified in the offer, which regulate the details of the relevant contractual obligations.

2. General

2.1 The contract between the Contractor and the Customer (“Contract”) consists of (i) the individual assignment agreed between the Customer and the Contractor, usually documented in the form of an offer approved by the Customer, (ii) the service description, (iii) these GTC and (iv) the supplementary terms and conditions declared applicable in the offer. In the event of contradictions, the provisions of the individual order, including its annexes, shall take precedence over the GTC.

2.2 The provisions of these GTC shall apply to all services provided by the Contractor.

2.3 Any provisions deviating from, conflicting with or supplementing these GTC and/or other contents of the respective contract that have not been signed by the Contractor shall not form part of the contract. This applies in particular to the Customer's general terms and conditions of business or purchase. Amendments to the GTC and/or other contents of the contract must be made in writing. The precedence of individual agreements remains unaffected.

2.4 Legally relevant declarations and notifications to be made by the customer to the contractor after conclusion of the contract (e.g. setting of deadlines, notification of defects or reduction) must be made in writing to be effective; the text form of § 126b BGB (e.g. e-mail) is not sufficient for this.

2.5 References to statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall apply unless they are contractually amended or expressly excluded.

2.6 If individual provisions of the contract are invalid, the validity of the remaining provisions shall remain unaffected. The parties shall replace invalid provisions with provisions that come closest to the intended economic purpose, unless a supplementary interpretation of the contract takes precedence or is possible.

2.7 The Contractor may (for the first time 12 months after conclusion of the contract) amend individual provisions of the (also supplementary) contractual terms and conditions, in particular those relating to remuneration (but only up to 10% per calendar year). The changes shall only become effective vis-à-vis the Customer if they have been communicated to the Customer in writing or by e-mail and the Customer has not objected to them in writing or by e-mail within two weeks of receipt of the notification. Timely dispatch of the objection shall suffice to meet the deadline. If the customer exercises his right of objection, the contract shall be continued under the previous conditions. If individual provisions of the contract are amended and the customer exercises his above right of objection, the following shall apply: If the Contractor informs the Customer in response to its objection that continuation of the contract on the previous terms is not possible, the Customer may terminate the contractual relationship as of the date on which the amendment takes effect. The amended provisions shall be deemed to have been approved if the Customer does not exercise its right of termination within one month of receipt of the notification. In the notification, the Contractor shall draw the Customer's attention to the significance of not exercising the right of termination.

3. Provision of services

3.1 The services owed by the Contractor shall result from the service description contractually agreed with the Customer. The Contractor shall deploy professionally and technically qualified personnel to provide the services.

3.2 Technical or other standards shall only apply insofar as they are expressly listed in the service description.

3.3 The Contractor shall be entitled to use third parties as subcontractors and vicarious agents in the provision of services. He undertakes that no temporary workers will be used in violation of the German Temporary Employment Act (AÜG) and corresponding successor regulations.

3.4 Performance deadlines shall only be binding if they have been agreed in writing as binding between the Contractor and the Customer.

4. Compensation and terms of payment

4.1 The compensation shall be based on the compensation specified in the offer and approved by the customer. If no remuneration has been agreed, it shall be based on the Contractor's price list valid at the time the service is provided.

4.2 All agreed amounts are in euros and are subject to VAT at the statutory rate.

4.3 If billing according to time spent has been agreed, the agreements documented in the offer shall apply primarily. If no agreement has been made, invoicing shall be on an hourly basis, i.e. per hour or part thereof. Daily flat rates shall apply per day or part thereof, unless the time spent on the day in question is less than four (4) hours; in the latter case, a 0.5-day flat rate shall be payable.

4.4 If performance-related work has been agreed, invoicing shall take place after completion and acceptance, otherwise after the end of each month in relation to the services rendered in the previous month. All invoices are due for payment within 14 days of receipt of the invoice to the Contractor's account specified in the invoice, unless otherwise agreed.

4.5 Expenses for out-of-pocket expenses shall be reimbursed against proof and shall be included in the monthly statement. The same applies to the reimbursement of costs incurred (e.g. travel, accommodation). The Contractor shall enclose the corresponding copies of receipts with the invoices.

4.6 The Customer shall only be entitled to offset or withhold payment if its claim is undisputed or has been legally established.

4.7 If the Customer is in arrears with payment for an earlier service, the Contractor shall be entitled to withhold payment. Overall, the Contractor may demand interest on arrears in accordance with the statutory provisions in the event of late payment. This does not exclude the assertion of further damages caused by default.

4.8 Until full payment has been made, the Contractor reserves all rights with regard to the work and services delivered, in particular to the transfer of any rights of use to work results.

5. Liability

5.1 The Contractor shall be liable without limitation in the following cases:

• in cases of intent or gross negligence; and
• for damage to life, body and health.

5.2 The Contractor shall only be liable for damages caused by simple negligence on the part of the Contractor if a material contractual obligation (so-called cardinal obligation) has been breached. “Cardinal obligations” are those obligations whose fulfillment is essential for the proper execution of the contract, whose breach jeopardizes the achievement of the purpose of the contract or on whose compliance the customer regularly relies.

5.3 However, the Contractor shall not be liable in accordance with clause 5.2 for unforeseeable damage that is not typical for the contract.

5.4 The above limitations of liability shall also not apply in the event of an express assumption of guarantee by the Contractor and in the event of the Contractor's liability for the absence of warranted characteristics. Furthermore, the Contractor's liability under the provisions of the Product Liability Act and under data protection regulations shall remain unaffected.

5.5 Any liability of the Contractor beyond that defined above in this Section 5 is excluded. In particular, the Contractor shall not be liable for damage caused by the Customer's employees to the Customer's own equipment after the Contractor has provided support for maintenance work or similar measures via remote communication.

5.6 The provisions of this clause 5 shall also apply in favor of the legal representatives and vicarious agents of the Contractor if claims are asserted directly against them.

5.7 Claims for reimbursement of expenses by the customer in accordance with § 284 BGB are waived insofar as a claim for damages instead of performance in accordance with the above provisions is excluded.

6. Force majeure

6.1 If a party fails to perform an obligation or delays performance due to force majeure, this shall not constitute a breach of its obligations nor shall it be liable to the other party. “Force majeure” means circumstances beyond its control, including but not limited to strike, pandemic, labor dispute, fire, flood, acts of God, war, riot, vandalism, sabotage, invasion, insurrection, national emergency, piracy, assault, terrorist attack, embargoes or restrictions, extreme weather or traffic conditions, temporary road closures, laws, regulations, orders or other legal acts of any government or governmental authority.

6.2 The party claiming force majeure shall immediately notify the other party in writing of the occurrence and termination of such circumstance. Either party shall be entitled to terminate the respective contract by written notice to the other party if the performance of the contract is suspended for more than three (3) months due to Force Majeure.

7. Confidentiality, reference, data protection

7.1 Both parties are obliged to maintain confidentiality regarding all information in connection with the contract and to store all data and documents in such a way that unauthorized third parties cannot gain knowledge of them. In particular, inventions and applications for industrial property rights must be kept strictly confidential until the date of disclosure. The parties shall oblige their employees, subcontractors and freelancers to maintain confidentiality accordingly.

7.2 The above obligations pursuant to clause 7.1 shall not apply to information which

• is or becomes public knowledge at the time of disclosure;
• was already known to the party receiving the information upon receipt;
• a party receives from a third party without this third party having received this information directly or indirectly from the other party;
• must be disclosed by law or at the request of a tax authority or by order of a competent authority, government agency or court or in accordance with the rules of a stock exchange on which the shares of a party to this agreement or a holding company of a party are listed.

7.3 The party invoking the exceptions under this clause 7.2 shall bear the burden of proof that the requirements have been met.

7.4 The confidentiality obligation under this clause 7 shall continue to apply for 5 years beyond the term of the contract. The parties shall do everything reasonable in good faith to ensure compliance with the above obligation, including in the event that employees leave the company.

7.5 The Contractor shall be entitled to name the Customer as a reference customer in its external presentation in order to draw attention to the joint economic relationship. For this purpose alone, the Contractor is entitled to publish the brand name, company name and company logo of the Customer on its own website and in company presentations as a customer reference. The Customer may object to the above use at any time by sending an e-mail to info@possehl-secure.de.

7.6 The parties shall comply with the applicable data protection regulations, in particular those applicable in Germany, and shall oblige their employees deployed in connection with the contract and its execution to maintain confidentiality, unless they are already generally obliged to do so. If the customer collects, processes or uses personal data, the customer warrants that it is authorized to do so in accordance with the applicable provisions, in particular those of data protection law, and shall indemnify the contractor against claims by third parties in the event of a breach. Insofar as the data to be processed is personal data, this shall constitute commissioned processing and the Contractor shall comply with the statutory requirements for commissioned processing and the Customer's instructions, in particular providing its own signed contract for commissioned processing at the Customer's request. Instructions outside of this contract must be communicated in writing.

8. Rights of use

8.1 Unless otherwise provided for in the Supplementary Terms and Conditions, the Contractor shall grant the Customer the right to use the contractual services and work results to the extent specified in the contract upon full payment of the compensation owed. If the scope is not agreed in the contract, this is a simple, non-exclusive, non-transferable right of use for the term of the contract, which extends to the respective contractual purpose and the agreed scope of the contract. The right of use only covers use for the customer's internal purposes. Leasing, marketing or further development is not permitted.

8.2 Any use going beyond the specifications in Section 8.1 must always be contractually agreed prior to commencement. The compensation shall be based on the scope of the right of use.

8.3 If software is provided, the customer may only copy it insofar as this is necessary for use in accordance with the contract. Copyright notices may not be changed or deleted.

8.4 The Contractor shall be entitled to take appropriate technical measures to protect against non-contractual use.

8.5 Ownership of reproductions provided shall remain reserved until the compensation owed has been paid in full. Insofar as individual rights of use are granted beforehand, these are always only provisional and freely revocable by the Contractor.

8.6 The Contractor may revoke the Customer's right to use the contractual services and work results if the Customer breaches the contractual requirements for protection against unauthorized use in a not insignificant manner. The Contractor shall set the Customer a grace period for remedial action beforehand. In the event of recurrence and in special circumstances that justify immediate revocation, taking into account the interests of both parties, the Contractor may issue the revocation without setting a deadline.

9. Change Request

9.1 The Customer is entitled to request changes to the scope of services. A change to the scope of services shall be deemed to exist if the Contractor is to provide a service other than that specified in this contract.

9.2 The Contractor is obliged to evaluate the change request with regard to the effects on the project, time delays and the advantages and disadvantages for the project, in particular risks to the project results, and to communicate this evaluation to the Customer immediately in writing or in text form. This written notification shall also indicate alternatives that can be used to achieve the result desired by the customer more cost-effectively and/or more effectively.

9.3 Changes that fall within the Contractor's area of risk shall not be compensated separately. The change shall then fall within the Contractor's area of risk if the Contractor is responsible for it.

9.4 If a case of clause 9.3 does not exist, the contracting parties shall agree on an appropriate adjustment of the content of the service, the performance deadlines (if necessary) and the compensation (if necessary) on the basis of a change or supplementary agreement to be concluded for this case. The adjustment of the compensation shall be made on the basis of the Contractor's current price list. Without a corresponding agreement between the contracting parties, the agreed deadlines, the agreed compensation and the agreed service content shall in any case remain unchanged.

9.5 If considerable effort is required to examine the effects of the change request, the parties shall agree on an individual remuneration for this.

10. Multiple subjects of performance

Insofar as services from different service areas (consulting, software development, software licensing, software maintenance, SaaS software, support) are combined in one order or order confirmation, this serves only to simplify administration. Nevertheless, these are separate forms of contract.

11. Final provisions

11.1 The place of performance and exclusive place of jurisdiction for all disputes arising from and/or in connection with the contract shall be the Contractor's registered office. German law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

11.2 No verbal or written ancillary agreements have been made

11.3 The assignment of rights under this contract requires the prior written consent of the other party. This does not apply to the assignment of payment claims.

11.4 Should individual provisions of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions of this contract. The parties shall replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the legal and economic intent of the invalid or unenforceable provision and that they would reasonably have agreed if they had considered the invalidity or unenforceability of the respective provision when concluding this contract. The same applies in the event of a loophole.

Here you will find the following supplementary terms and conditions: