Terms and Conditions of itl AG

1. Scope, form

  1. These Terms and Conditions (hereinafter referred to as "T&Cs") shall apply to all business relationships between itl Institut für technische Literatur AG (hereinafter referred to as "itl") and its clients (hereinafter referred to as "customers"). The T&Cs shall only apply if the customer is a business person/entity (Art. 14 of the German Civil Code – BGB), a legal person under public law, or a special fund under public law.
  2. These T&Cs shall particularly apply to contracts for services and software products, especially in the field of technical documentation, language services and software (hereinafter referred to as the "services"). The details of the service provision, such as the subject matter of the service, the scope of the service, or the content of the service, shall be set out in a separate document (e.g., a quotation prepared by itl). For the transfer of software, the General License Terms of itl shall additionally apply.
  3. Unless otherwise agreed, these T&Cs shall apply in the version valid at the time of the customer's order, in any case in the version last communicated to the customer in text form, as a framework agreement also for similar future contracts, without itl having to refer to the validity of these T&Cs again in each individual case.
  4. The T&Cs of itl shall apply exclusively. Deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that itl has expressly agreed to their validity in writing, i.e., in written or text form (e.g., letter or email). This requirement of approval shall apply in every case, for example even if itl carries out the delivery to the customer without reservation in the knowledge of the customer's terms and conditions.
  5. Individual agreements made with the customer in individual cases (including collateral agreements, supplements, and amendments) shall always take precedence over these T&Cs. Unless there is proof to the contrary, the content of such agreements shall be governed by a contract or confirmation from itl in written or text form (e.g., letter or email).
  6. Legally relevant declarations and notifications by the customer with regard to the contract (e.g., setting of deadlines, notification of defects, withdrawal, or abatement) must be issued in writing, i.e., in written or text form (e.g., letter or email). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
  7. References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these T&Cs.

2. Contract conclusion

  1. Unless otherwise specified, quotations issued by itl are always subject to change and non-binding. This shall also apply if itl has provided the customer with documents, such as product descriptions – including in electronic form.
  2. When the customer orders services, this shall be considered a binding contractual offer. Unless otherwise stated in the order, itl shall be entitled to accept the customer's offer within five (5) business days after receipt of the order. "Business days" within the meaning of these T&Cs are all days from Monday to Friday with the exception of public holidays observed in the business domicile of itl.
  3. Itl may declare acceptance of the offer either in writing by confirming the order or by providing the service.
  4. The subject matter of the contract shall be the services listed in the order confirmation.
  5. Unless explicitly agreed otherwise, itl shall be entitled to have the contract with the customer fulfilled in whole or in part by third parties. The customer's consent is not required for this.

3. Remuneration and terms of payment

  1. Unless otherwise agreed in individual cases, itl's current prices at the time of the customer's order plus statutory value added tax shall apply.
  2. Payments shall be due for payment without deduction within 14 days after invoicing (hereinafter referred to as "payment period") and shall be made to the itl account specified in the invoice. Itl shall be entitled at any time – also within the framework of an ongoing business relationship – to perform a service in whole or in part only if payment is made in advance or appropriate security is provided, e.g., in the form of a surety. Itl shall declare such a proviso with the order confirmation at the latest.
  3. The customer shall be in default without reminder if they have not made payments within the payment period. If the customer is in default, any discounts granted by itl shall be forfeited in full. During the period of default, the price shall bear interest at the applicable statutory default interest rate. Itl shall reserve the right to assert additional claims for damages resulting from the default. With respect to merchants, itl's entitlement to commercial maturity interest (Art. 353 of the German Commercial Code – HGB) shall remain unaffected.
  4. If the customer does not meet their payment obligation, does not do so properly or does not do so on time, or if circumstances become known that make the customer's creditworthiness appear doubtful, itl shall be entitled to make outstanding payments of the customer due for payment immediately. The same shall apply if the customer's business is no longer being conducted in an orderly manner, in particular if an attachment is levied against them or if proceedings are instituted against them under the German Insolvency Code.
  5. The payment method accepted is payment on account. A payment shall be considered made when itl has the amount at its disposal. Any payment default on the customer's part shall not end until payment has been received in itl's account.
  6. The customer shall only be entitled to rights of set-off or retention to the extent that their claim has been legally established or is undisputed. This shall not apply to the customer's rights of retention based on counter-claims of the customer arising from the same contractual relationship. In the event of defects, the customer's counter-rights, in particular pursuant to Section 8 of these T&Cs, shall remain unaffected.
  7. If, after conclusion of the contract, it becomes apparent (e.g., by filing for insolvency proceedings) that itl's claim to remuneration is jeopardized by the customer's lack of ability to pay, itl shall be entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract in accordance with statutory provisions (Art. 321 of the German Civil Code – BGB).

4. Service provision, time of service provision

  1. Itl shall provide the services listed in the order confirmation.
  2. Itl shall basically be free to choose the place of performance and the arrangement of its working hours. If its activity requires presence at a certain place, itl shall provide the service at this place.
  3. Itl shall be entitled to have the agreed services provided by third parties.
  4. All times specified in the order confirmation for the performance of the services are only estimates for planning purposes. The parties may expressly agree on binding performance times that are different from these.
  5. Itl shall not be liable for impossibility of performance or for delays in performance insofar as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g., operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures, or pandemics) for which itl is not responsible. In the event of hindrances of temporary duration, the delivery dates and delivery periods shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. Itl shall notify the customer immediately of the occurrence and cessation of the force majeure and shall use its best efforts to remedy the force majeure and limit its effects as far as possible.

5. Obligations on the part of the customer

  1. The customer shall fulfill their duties to cooperate in connection with the provision of the services by itl.
  2. The customer's duties to cooperate expressly agreed between itl and the customer are primary contractual obligations. The agreed places and dates for cooperation are binding for the customer.
  3. If the provision of services by itl requires the customer's cooperation and this cooperation is not provided within the agreed period, the performance deadlines specified for itl in the order confirmation shall be extended accordingly. The calculation of the extended performance periods shall be determined by the point at which the customer provides cooperation to itl or – if the customer is to provide cooperation to a third party – the point at which itl receives a written notification that the customer has cooperated.
  4. The customer shall be responsible for the actions of their employees and their authorized representatives. They shall also be responsible for ensuring that itl is provided with all data and information in good time and that it is complete and correct.
  5. The customer shall immediately notify itl of any issues, concerns or disagreements with respect to the services.

6. Delivery

  1. Deliveries by itl shall be made solely electronically. At the customer's request and expense, itl shall ship the services on a data carrier to a destination specified by the customer. Unless otherwise agreed, itl shall be entitled to determine the type of shipment (in particular the transport company, shipping route, and packaging) itself.
  2. Itl shall be entitled to make partial deliveries, provided that the customer is not unreasonably disadvantaged by this. Additional costs caused by partial deliveries shall be borne by itl.

7. Reservation of proprietary rights

  1. Until full payment of all present and future claims of itl arising from the contract and an ongoing business relationship with the customer (secured claims), itl shall retain the proprietary rights to the services.
  2. In the event of conduct by the customer that is in breach of the contract, in particular in the event of non-payment of remuneration due, itl shall, in accordance with statutory provisions, be entitled to withdraw from the contract and/or to demand the return of the services – insofar as possible – on the basis of the proprietary rights. The demand for the return of the services shall not automatically constitute a declaration of withdrawal, but rather itl shall be entitled to demand only the return of the services and to reserve the right of withdrawal. If the customer does not pay the remuneration due, itl may only assert these rights if itl has previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable in accordance with statutory provisions.

8. Warranty rights of the customer

  1. Itl shall guarantee the agreed quality for the services. If the quality has not been agreed, the service shall be considered free of defects if it has the properties that the customer can expect according to the description given by itl. Itl expressly assumes no liability for public statements made by third parties (e.g., advertising statements).
  2. Unless expressly agreed, itl does not guarantee that itl's services are suitable for the customer's intended use. In particular, itl also does not provide any warranty for errors in the services
  3. that are caused by application errors on the customer's part, unless these are due to erroneous documentation or missing information from itl;
  4. that are due to a virus attack or other external influences for which itl is not responsible, such as fire, accidents, power failure, etc.;
  5. that are due to the service (especially software) being used in an operating environment other than that approved by itl or that are attributable to defects in the hardware, operating system or software of other manufacturers, unless this type of use was expressly recommended by itl; or
  6. that are due to the service being changed by the customer or third parties of their own accord.
  7. Statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below.
  8. If a service rendered is defective, itl may choose the type of rectification. Itl's right to refuse rectification under statutory conditions shall remain unaffected.
  9. Itl shall be entitled to make the rectification owed dependent on the customer paying the price due for the service. However, the customer shall be entitled to withhold a part of the price that is reasonable in relation to the defect.
  10. The customer shall give itl the time and opportunity required for the rectification owed.
  11. The expenses required for the purposes of inspection and rectification shall be borne by itl in accordance with statutory provisions if a defect is actually present. Itl can demand compensation from the customer for the costs incurred from an unjustified request to rectify a defect (in particular inspection costs), unless the lack of defectiveness was not recognizable to the customer.
  12. Claims of the customer for damages or reimbursement of wasted expenses shall only be enforceable in accordance with Section 10, even in the case of defects, and shall otherwise be excluded.
  13. The warranty period is 12 months from delivery of the services. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.

9. Third-party rights

  1. During the warranty period, itl shall guarantee that the services do not infringe any third-party rights within the Federal Republic of Germany.
  2. The customer shall notify itl immediately in writing if claims are asserted against the customer due to the infringement of third-party rights.
  3. In the event that services provided by itl infringe third-party rights, itl shall be entitled at its own discretion, taking due account of the interests of the customer, to replace or modify the service while retaining the agreed functionalities in order to remedy the alleged or suspected infringement.

10. Liability

  1. Unless otherwise stipulated in these T&Cs including the following provisions, itl shall be liable in accordance with statutory provisions in the event of a breach of contractual and non-contractual obligations.
  2. Itl shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of ordinary negligence, itl shall be liable, unless in the case of statutory limitations of liability (e.g., diligence in its own affairs, insignificant breach of duty), only
  3. for damages resulting from loss of life, bodily injury or damage to health,
  4. for damages resulting from the breach of an essential contractual obligation (i.e., an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose observance the customer habitually relies and may rely); in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage.
  5. The limitations of liability set out in Clause 10.2 shall also apply to breaches of duty by or in favor of persons for which the fault lies with itl in accordance with statutory provisions. They shall not apply if itl has fraudulently concealed a defect or offered a guarantee or for claims of the customer under the German Product Liability Act (ProdHaftG).
  6. Due to a breach of duty that does not constitute a defect, the customer may only withdraw or terminate the contract if itl is responsible for the breach of duty. An unrestricted right of termination of the customer shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
  7. Liability on the part of itl, in particular in the case of technical documentation and language services, shall be expressly excluded if the defect is due to incorrect, faulty and/or incomplete data, documents, information, etc., provided by the customer.
  8. The customer shall have no recourse claims against itl arising from the transfer of a service to a third party if the customer has entered into agreements with the third party that go beyond the legally mandatory defect claims (in particular contractual penalty agreements), unless itl has expressly agreed to such agreements in writing.

11. Confidentiality

  1. The customer undertakes to treat confidential information of itl as confidential in accordance with the provisions of this Section 11. "Confidential information" shall mean all information of itl or a company affiliated with itl within the meaning of Art. 15 et seq. of the German Stock Corporation Act (AktG), which the customer receives or becomes aware of directly or indirectly, in writing, verbally or in any other way. Confidential information shall particularly comprise – whether in the form of software or physical – (i) trade and business secrets, know-how, technical data, software (including source code and machine code), strategies, technologies, identity of and information about employees, customers, suppliers, distributors, as well as (ii) any information that is marked as secret or that by its nature is to be regarded as secret.
  2. The customer undertakes (i) to keep all confidential information of itl strictly secret, to treat it strictly confidentially, and use it solely in connection with the performance of the contract, (ii) to disclose confidential information of itl only to those persons employed by or working for either party who rely on knowledge of such information for the performance of the obligations under the contract, provided that the customer ensures that such persons comply with the obligations set out in this Section 11 as if they were themselves bound by them, and (iii) to take reasonable steps to protect confidential information of itl and prevent the disclosure, unauthorized access and unauthorized use of confidential information of itl.
  3. The aforementioned confidentiality obligation shall not apply if and to the extent that the customer proves that (i) the information was already in the public domain at the time of receipt or became in the public domain after the time of receipt through no fault of the customer, (ii) the information was already known to the customer at the time of receipt, (iii) the information was lawfully made available to the customer by third parties after its transmission, without any prior direct or indirect breach of a confidentiality obligation vis-à-vis itl, (iv) itl has given its consent to the disclosure, (v) the recipient of the confidential information is under a professional obligation of confidentiality, or (vi) the customer is under an obligation to disclose confidential information of itl within the framework of legal proceedings or other official proceedings. In the latter case, the customer shall inform itl without delay and assist itl within the scope of legal possibilities in preventing or limiting the disclosure.
  4. Confidential information of itl must be returned to itl by the customer after termination of the contract without being requested to do so, along with the written confirmation not to retain any copies, unless further use has been expressly permitted by itl. All files or other types of storage must be permanently deleted with the proviso that copies necessary for documentation purposes and information as part of regular data backup are not covered by this. These shall remain subject to secrecy. Upon request, the customer shall confirm to itl in writing that all measures pursuant to this Clause 11.4 have been taken.
  5. Itl shall have sole ownership, usage and exploitation rights with respect to all confidential information. Unless explicitly agreed, the customer shall under no circumstances be granted any ownership, license, usage or other rights as a result of the contract or the disclosure of confidential information. This shall apply regardless of whether proprietary rights exist with respect to the confidential information. The use and application of the confidential information within the scope of the business relationship between itl and the customer shall, however, be permitted.
  6. Unless otherwise agreed, itl shall be entitled to name the customer as a reference.
  7. The obligation to maintain secrecy pursuant to this Section 11 shall not end upon termination of the contract between itl and the customer, but shall instead remain in force beyond this for a period of five years.

12. Supplementary provisions for technical documentation for products not sold by itl

  1. When preparing technical documentation, itl does not check the accuracy (especially factual and technical) of the documents and information provided by the customer. The factual and technical accuracy of the documents delivered by itl must be checked and approved by the customer. This shall also apply to the corresponding translations.
  2. For orders with a term of more than 30 calendar days, itl will agree with the customer on a payment plan with partial payment target dates at the beginning of the order.
  3. The customer shall receive a non-exclusive right of use and exploitation for an unlimited period of time for technical documentation delivered/performed by itl in the contractually agreed language.

13. Final provisions

  1. These T&Cs and the contractual relationship between itl and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding private international law.
  2. The exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship is Munich. However, itl shall also be entitled to bring an action at the customer's general place of jurisdiction.
  3. Amendments and supplements to these T&Cs including this provision must be made in writing to be effective, unless they have been individually negotiated between the parties.
  4. If any provision of these T&Cs is or becomes void, invalid or unenforceable, in whole or in part, or if any provision that is intrinsically necessary is not included, the validity and enforceability of all other provisions of these T&Cs shall not be affected. In place of the void, invalid or unenforceable provision or to fill the regulatory gap, a legally permissible provision shall apply that corresponds as far as possible to what itl and the customer intended or would have agreed according to the sense and purpose of these T&Cs if they had recognized the invalidity or the regulatory gap. It is the express intention of itl and the customer that this severability clause shall not result in a mere reversal of the burden of proof, but that Art. 139 of the German Civil Code (BGB) shall be waived in its entirety.
  5. The customer shall not be entitled to transfer and/or assign rights and obligations arising from the contractual relationships binding the parties to third parties without the prior written consent of itl. This prohibition of assignment shall not apply to monetary claims.