§ 1 Scope and order of precedence
These General Terms and Conditions apply to all contracts between GESTALT Automation GmbH (“GESTALT”) and customers within the meaning of § 14 BGB (German Civil Code) for development, consulting, automation, integration, and software services (collectively referred to as “Services”).
Any deviating terms and conditions of the customer shall not become part of the contract unless their validity is expressly agreed in writing.
Order of precedence in the event of a conflict: (a) individual offer/service voucher including annexes (e.g., Annex 1: Provisions and Obligations to Cooperate), (b) these GTC, (c) statutory provisions.
Legally relevant declarations and notifications by the parties must be made at least in text form (email is sufficient), unless the written form has been expressly agreed.
§ 2 Conclusion of contract and subject matter of contract
Offers made by GESTALT are subject to change and non-binding.
A contract shall only come into effect upon written confirmation of the customer's offer by GESTALT in the form of an order confirmation.
The subject matter of the contract is the service or work described in the offer, specifications, project plan, or service sheet.
§ 3 Scope of services, partial services, and service provision
The scope of services is determined by the written service description agreed upon based on a GESTALT offer.
GESTALT is entitled to provide services in reasonable partial services.
The selection of technologies, architectures, or third-party systems used is the responsibility of GESTALT, unless specified in the offer.
GESTALT may use suitable subcontractors. GESTALT remains responsible for their performance.
§ 4 Customer's obligations to cooperate and provide information
The customer shall provide all cooperation and information necessary for the provision of services in a timely manner, in full, and in the required quality. This includes, in particular:
Provision of information, access, test and real data, contact persons, and working environments;
Appointment of a person responsible for the project;
Decision-making and approval within reasonable time limits;
Ensuring proper data backups within their own area of responsibility.
The work package descriptions specify the input required from the customer. The customer shall deploy sufficiently qualified personnel for this purpose; this applies in particular to systems/applications related to AI. If the customer employs third parties (including affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG)), it remains responsible for timely and proper performance.
If the customer fails to provide cooperation/support services, or provides them late or inadequately, the following shall apply:
GESTALT shall be exempt from its own performance and deadline obligations for the duration of the impairment; agreed deadlines shall be postponed accordingly.
After giving prior notice in writing and after the expiry of a reasonable period of time, GESTALT may, as far as possible, provide the missing cooperation/provision of materials itself or commission substitute services and charge the proven additional costs incurred as a result at reasonable market prices.
GESTALT shall not be liable for performance disruptions insofar as these are based on missing/delayed/insufficient cooperation/provision of materials and GESTALT has acted with at most slight negligence or the provision of services is thereby unreasonably impeded.
GESTALT's legal claims, in particular under Sections 642, 643 of the German Civil Code (BGB), remain unaffected (claim for remuneration in the event of default of acceptance; right of termination).
§ 5 Dates, deadlines, force majeure, default
Performance deadlines are only binding if they have been confirmed in writing.
Events of force majeure or other unforeseeable circumstances beyond the control of either party (e.g., strikes, failure of third-party providers, changes in the law) shall extend deadlines by the duration of the disruption plus a reasonable start-up period.
If GESTALT is in default, a reasonable grace period shall be granted.
§ 6 Changes to Services (Change Requests)
The customer may request changes to the scope of services in writing. GESTALT will promptly review the requested changes with regard to their technical and economic implications and will submit a contract amendment proposal to the customer.
Changes shall be recorded in an amendment agreement (scope of services, deadlines, remuneration). Until then, GESTALT shall continue to work on the basis of the previous agreement.
GESTALT may reject requests for contract amendments at any time, in particular if the services required to implement the requested contract amendment are not part of GESTALT's service portfolio.
If GESTALT submits a request for a contract amendment to the client, GESTALT will, as far as reasonable and appropriate, simultaneously send the client the contract amendment offer for the contract amendment requested by GESTALT. The customer is not obliged to agree to a request for a contract amendment from GESTALT and to conclude a contract amendment agreement for this purpose, unless the implementation of the request for a contract amendment is necessary to ensure the success of the project, to comply with legal obligations, or to comply with safety requirements of one of the parties.
§ 7 Acceptance of services under a contract for work and services
GESTALT shall indicate its readiness for acceptance. The customer shall inspect the work within 5 working days. If the customer does not report any significant deviations within this period, the service shall be deemed to have been accepted (deemed acceptance).
Insignificant defects do not entitle the customer to refuse acceptance and will be remedied under the warranty. Partial services may be accepted separately.
§ 8 Rights of Use, Open Source/Third-Party Software, Background IP
Work results: Upon acceptance, the customer shall receive a simple, transferable right of use to the work results arising from the project for the contractually agreed purpose, including the right to reproduce, edit (while observing any moral rights) and use by affiliated companies (Sections 15 et seq. AktG) and commissioned service providers, insofar as this is necessary for contractual use. The customer may not perform reverse engineering without the prior written consent of GESTALT.
Exclusivity (optional): Notwithstanding paragraph 1, the offer may provide for the granting of an exclusive right of use, unlimited in terms of time, space, and content, in return for separate remuneration.
Background Knowledge/IP: Methods, frameworks, libraries, development tools, processes, existing source code, and other know-how belonging to GESTALT shall remain the property of GESTALT. If background IP is necessary for the use of the work results, the customer shall receive a non-exclusive right of use to the extent necessary for contractual use. GESTALT retains all rights to the methods, source code libraries, processes, development tools, and technical know-how (“background knowledge”) used. The use of background knowledge beyond the scope of the project is prohibited unless a separate license is agreed in writing.
Open source/third-party software: The license terms of any integrated open source components and third-party software shall take precedence. GESTALT shall provide the customer with a list of the licenses used upon request.
Guarantee of rights: GESTALT warrants that it is entitled to grant rights and to deliver the work results free of third-party rights that conflict with the contractual use. The customer shall notify GESTALT immediately of any asserted infringements of property rights. GESTALT shall be entitled, at its own discretion, to (i) modify the service in question so that no third-party rights are infringed, (ii) obtain the necessary rights, or (iii) withdraw the service in return for reimbursement of the remuneration for the service in question, less reasonable compensation for use. Further claims shall remain unaffected.
§ 9 Remuneration, travel expenses, and terms of payment
The remuneration agreed in the offer plus statutory sales tax shall apply. Partial/milestone invoices are permissible.
Invoices are due within 14 calendar days without deduction. In the event of default, GESTALT is entitled to refuse services and to charge default interest in accordance with § 288 BGB (German Civil Code).
Planned trips specified in the offer are included in the price. Additional trips agreed with the customer will be invoiced separately in accordance with the Federal Travel Expenses Act or at standard market rates.
The customer shall only be entitled to set-off and retention rights if their counterclaims are undisputed or have been legally established.
For services that the client is required to pay for according to actual expenditure (“Time & Material” or “Cost Plus”), the remuneration to be paid by the client to GESTALT shall be based on the current hourly rates, whereby the full hourly rate shall be paid for each hour or part thereof. Further remuneration obligations based on the GESTALT offer remain unaffected.
GESTALT reserves the right to adjust the hourly rates and other prices on January 1 of each calendar year (“price increase effective date”).
§ 10 Warranty
For services provided under a contract for work and services, GESTALT provides a warranty in accordance with the statutory provisions, with the proviso that the limitation period is 12 months from acceptance, to the extent permitted by law.
Obvious defects must be reported in writing no later than 7 days after acceptance.
In the event of justified complaints, GESTALT shall first provide subsequent performance. If this fails, the customer may reduce the remuneration or withdraw from the contract, insofar as provided for by law.
§ 11 Liability
GESTALT shall be liable without limitation for damages resulting from injury to life, limb, or health caused by intentional or grossly negligent breach of duty by GESTALT or a legal representative or vicarious agent.
GESTALT shall only be liable for other damages in cases of intent or gross negligence. In cases of simple negligence, GESTALT shall only be liable for the breach of essential contractual obligations (cardinal obligations), but the amount of liability shall be limited to the foreseeable damage typical for this type of contract, up to a maximum of the contractually agreed net remuneration for the individual order concerned.
Any further liability—regardless of the legal basis—is excluded. This applies in particular to: a) indirect damage, b) consequential damage, c) loss of profit, d) loss of production, e) loss of use, f) unrealized savings, g) loss or restoration of data, and h) damage caused by defective services of third parties (e.g. hosting/SaaS providers, subcontractors, third-party systems), unless otherwise agreed.
The above limitations of liability also apply in favor of GESTALT's employees, representatives, and vicarious agents.
The limitations do not apply if GESTALT has assumed a guarantee or is mandatorily liable under the Product Liability Act.
§ 12 Termination
Each party may terminate a contract with six (6) months' notice to the end of any calendar year. The customer's right to terminate a contract at any time in accordance with § 648 BGB (German Civil Code) is excluded.
The right of each party to terminate a contract for good cause remains unaffected. GESTALT is entitled in particular to terminate a contract in whole or in part for good cause if:
the client repeatedly violates essential obligations under this contract;
the client is in default of payment of agreed remuneration exceeding 5% of the total value of a contract;
the client repeatedly violates one or more cooperation and/or provision obligations;
an employee and/or vicarious agent of the client or any other person attributable to the client commits a criminal offense in connection with this framework agreement and/or a SoW;
GESTALT has objective reasons to fear that further cooperation between the parties could damage GESTALT's reputation or that such damage to reputation has already occurred in GESTALT's opinion;
the client has violated its confidentiality obligations under § 14 or a statutory confidentiality obligation; and/or
the client violates or has violated GESTALT's intellectual property rights.
Further reasons within the meaning of § 314 (1) sentence 2 BGB for termination for good cause remain unaffected.
Any termination must be in writing to be effective.
§ 13 Personnel and non-solicitation clause
GESTALT shall decide on the deployment of personnel and shall retain sole authority to issue instructions. Integration into the customer's corporate structure is excluded.
Both parties undertake not to poach personnel from the other party during the term of the contract and for 12 months thereafter. In the event of a breach, the poaching party shall owe a contractual penalty of up to one year's salary of the employee concerned.
§ 14 Confidentiality and data protection
Both parties undertake to maintain confidentiality regarding all information obtained within the scope of the contract, even beyond the term of the contract.
GESTALT processes personal data only in accordance with the applicable legal provisions.
§ 15 Transferability
The customer is not entitled to transfer this contract or individual rights and obligations arising from it to a third party without the consent of GESTALT.
GESTALT processes personal data only in accordance with the applicable legal provisions.
§ 16 Publications
GESTALT may use the customer's name and logo as well as project references in marketing materials, unless this is objected to in writing.
§ 17 Written form
Side agreements and/or amendments and additions to a contract must be made in writing to be effective.
Amendments and supplements to a contract are only effective if the essential provision from which it is to be deviated or which is to be amended or supplemented is expressly referenced in the amendment and/or supplement contract.
Notwithstanding this, signing with an electronic signature solution is sufficient to comply with the written form requirement if such a signature meets the requirements for an advanced or qualified electronic signature within the meaning of Art. 3 No. 11, 12 of Regulation (EU) No. 910/2014 on electronic identification and trust services for electronic transactions in the internal market (“eIDAS Regulation”).
§ 18 Final provisions and severability clause
The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising from or in connection with a contract is Berlin, subject to any mandatory legal provisions to the contrary.
If individual provisions of this framework agreement are or become wholly or partially invalid or unenforceable, the validity of the remaining provisions of the framework agreement shall remain unaffected. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic purpose of the parties as expressed in the invalid provision.