(Last updated: June 2018)
1. Scope of application
These General Terms and Conditions (GTC) are the contractual basis for all legal transactions between SITA AIRPORT IT GmbH, Parsevalstr. 7a, 40468 Düsseldorf, Germany (SAIT), and businessmen, legal entities under public law or special funds under public law (customer) which are merely supplemented by specific provisions contained in the offers. Conflicting terms and conditions of the customer shall be deemed expressly excluded, even if the customer attempts to include them in the contractual relationship at a later date.
For all products/services to be delivered or rendered by SAIT, SAIT and the customer shall sign a written individual contract and/or a service description based on the offer, in which the scope of services is specified exactly.
3. Change request procedure
With regard to the agreed services, each of the parties to the contract may request changes to the agreed scope of services in writing during the term of the contract of the other party to the contract. Upon receipt of a change request, the addressee shall review the requested amendment to determine whether and under what conditions it is feasible and shall promptly notify the applicant in writing of its approval or rejection and, where appropriate, give reasons for it.
If a change request from the customer requires a comprehensive review, then this shall be agreed separately. SAIT can charge the usual hourly rates for the time and effort required to check this. The contractual adjustments to the agreed terms and conditions and services required for a review and/or amendment shall be set out in an amendment agreement.
Deadlines for existing delivery and service obligations are extended by the calendar days on which SAIT examines the customer's change requests, prepares change offers, conducts negotiations with the customer on change offers or, as a result of the change request, the project implementation was interrupted at the customer's request, plus a reasonable restart period.
If no agreement is reached on a change offer within a period of 21 calendar days or if for technical, organisational or economic reasons an offer corresponding to the change request of the customer cannot be submitted, SAIT continues the implementation of the existing contract. In this case, the customer shall be granted a right of termination against payment of the agreed remuneration less the saved expenses.
If the circumstances on which the contractual relationship is based undergo an essential change which is not taken into account by the provisions of the contract, then either party shall be entitled to demand an adjustment of the contract to the changed circumstances.
4. Product quality
Products/services sold on the basis of the contract comply with the specification stated in the offer/service description.
Delivery/provision of the contractually agreed products/services shall be made in accordance with the provisions of the offer or the service description. Unless otherwise agreed, the place of performance and fulfilment shall be the registered office of SAIT.
SAIT is entitled to replace or change the products to be delivered, provided that the product performance is not significantly affected or changed as a result.
SAIT is entitled to carry out partial deliveries and to invoice these separately.
6. Acceptance for services provided
For services provided, the delivery and review of the service are carried out in an acceptance test. For definable parts of the service that have economic value and can be used separately, SAIT can demand that partial acceptances be carried out. In this case, the entire project performance is deemed accepted with upon the partial acceptance ("final acceptance"). Already completed partial acceptances remain unaffected by the success of the final acceptance.
After the acceptance test, an acceptance protocol is created which compares the delivered work result with the created service description and assigns any deviations to the following error classes:
Error class 1:
There is an error on one part or the entire works, which makes an economically relevant use impossible or unreasonably restricts or impedes it.
Error class 2:
All other deviations from the agreed performance targets belong to error class 2.
For errors of error class 1, the parties agree on a new acceptance date. If errors of error class 2 are present, the system is deemed generally in accordance with the contract and the parties arrange in the acceptance protocol how and within what time period these errors are to be rectified.
The acceptance is carried out by both parties together. The acceptance protocol is to be signed by both parties. The date included upon signing is the time of acceptance.
If the acceptance test cannot take place for reasons for which SAIT is responsible, the subject matter of the contract is deemed accepted two weeks after notice of completion. Acceptance is equivalent to the productive use of the service by the customer.
Upon acceptance or partial acceptance, the legal consequences of Section 640 of the German Civil Code (BGB) come into effect, unless agreed otherwise.
7. Prices and payment
Unless otherwise agreed, remuneration shall be calculated in advance either monthly, quarterly or annually, or after performance of the service.
All prices for products and services are exclusive of VAT, unless expressly stated otherwise.
Furthermore, the prices for services are to be understood exclusive of the following items: easonable travel expenses in the amount of the expenses actually incurred by SAIT, reasonable and necessary expenses incurred in connection with services which are referred to in a service list or service description as consulting services ('consulting services'), as well as costs incurred by the customer or its employees in connection with participation in training courses or further training courses carried out by SAIT or on its behalf. Invoices are due and payable 15 calendar days after the invoice date. If no direct debit authorisation/ SEPA mandate has been issued, payment shall be deemed to have been made in due time upon receipt on the following account of SAIT within the specified payment period:
IBAN: DE 49 3005 0110 1004 0940 56
If the customer does not settle a due claim in full or in part on the contractual payment date, the provider may revoke agreed payment terms for all claims. SAIT is also entitled to provide further services only against advance payment or against security by means of a performance guarantee from a credit institution or credit insurer licensed in the European Union. The advance payment must cover the respective billing period or in the case of one-off payments their remuneration.
In case of economic inability of the customer to fulfil its obligations towards SAIT, SAIT can then terminate existing contracts with the customer without prior notice by withdrawal, continuous obligations by termination, also in case of an insolvency application of the customer. Sections 321 of the German Civil Code (BGB) and 112 of the Insolvency Statute (InsO) remain unaffected. The customer shall inform SAIT in good time of any imminent insolvency.
The customer may only offset or retain payments due to defects insofar as it is actually entitled to payment claims due to material defects or defects of title of the service. Due to other defect claims, the customer may withhold payments only in proportion to the defect. Clause 10 shall apply accordingly. The customer has no right of retention if its claim for defects has become statute-barred. In all other respects, the customer can only offset against SAIT with undisputed or legally established claims or exercise a retention.
8. Retention of title
SAIT reserves the ownership and rights to be granted to the services until the full payment of the owed remuneration has been made, justified retentions of defects according to clause 7, last paragraph are taken into account. Furthermore, SAIT reserves the right of ownership until all its claims arising from the business relationship with the customer have been fulfilled.
SAIT is entitled to prohibit the further use of the services by the customer for the duration of a delay in payment. SAIT can only assert this right for a reasonable period of time, usually a maximum of 6 months. This does not constitute a withdrawal from the contract. Section 449 para. 2 of the German Civil Code (BGB) remains unaffected.
If the customer or its buyer returns the services, then acceptance of the services does not constitute a withdrawal of SAIT, unless SAIT has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by SAIT.
The customer may neither pledge nor assign by way of security objects subject to retention of title or reservation of rights. The customer is only permitted to resell SAIT as a reseller in the ordinary course of business under the condition that the customer has effectively assigned its claims against its customers in connection with the resale to SAIT and the customer transfers ownership to its customers subject to payment. The customer assigns its future claims in connection with such sale against its buyers to SAIT by way of security through the conclusion of the contract on which the service is based, which accepts this assignment.
If the value of the SAIT security interests exceeds the amount of the secured claims by more than 20%, then SAIT will release a corresponding share of the security rights at the customer's request.
9. Interruptions of the provision of service
If a cause for which SAIT is not responsible, including a strike or lockout, impairs the contractually agreed deadline compliance ("disruption"), then the deadlines shall be postponed by the duration of the disruption, if necessary including an appropriate restart phase. One contracting party shall immediately inform the other about the cause of a disruption occurring in its area and the expected duration of the postponement.
If the expenditure increases due to a disruption, SAIT can then also demand payment of the additional expenditure, unless the customer is not responsible for the disruption and its cause lies outside its area of responsibility.
If the customer can withdraw from the contract due to improper performance by SAIT and/or can demand damages instead of performance or asserts such, then the customer will declare in writing at the request of SAIT within a reasonably set period of time whether it will assert these rights or continue to desire performance. In the event of withdrawal, the customer must reimburse SAIT for the value of previously existing possible uses; the same applies to deterioration due to intended use.
If SAIT is in delay with the provision of services due to a cause for which SAIT is responsible, then the compensation for damages and expenses of the customer due to the delay is limited to 0.5% of the price for the part of the contractual service which cannot be used due to the delay for each completed week of the delay. The liability for default shall be limited to a maximum of 5% of the total remuneration for all contractual services affected by the default; in case of continuing obligations, then in relation to the remuneration for the respective services affected for the full calendar year. Priority shall be given to a percentage of the remuneration agreed upon when the contract was concluded. This does not apply if a delay is due to gross negligence or intent on the part of SAIT.
In the event of a delay in performance, the customer only has a right of withdrawal within the framework of the statutory provisions if SAIT is responsible for the delay. If the customer asserts a justified claim for damages or reimbursement of expenses instead of performance on account of the delay, it shall be entitled to demand 1% of the price for that part of the contractual performance which cannot be used due to the delay for each completed week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations, then in relation to the remuneration for the respective services affected for the full calendar year. Priority shall be given to a percentage of the remuneration agreed upon when the contract was concluded.
10. Material defects
SAIT guarantees the contractually owed quality of the services. There shall be no claims for material defects in the event of only an insignificant deviation of SAIT services from the contractual quality. The quality of the products agreed in accordance with the contract results solely from the special written agreements for the respective order. Any such special agreements with regard to the properties of the products do not constitute guarantees of quality or durability within the meaning of Section 443 of the German Civil Code (BGB). Claims due to defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible software errors or software errors otherwise not verifiable by the customer, or in the event of damage caused by special external influences, which are not assumed under the contract. This also applies in case of subsequent modification or repair by the customer or third parties, unless this does not complicate analysis and elimination of the material defect or in case the products were used in connection with products or software that was or were not delivered or expressly released by SAIT, provided that the defects are attributable to this use. The paragraph â€œLiabilityâ€ shall also apply to claims for damages and reimbursement of expenses.
In case of defects, the customer is entitled - at the discretion of SAIT - to a claim for repair or replacement at the agreed place of delivery. The customer is only entitled to demand a reduction of the purchase price or to withdraw from the contract after the unsuccessful setting of a deadline for performance or subsequent performance of at least three weeks or after SAIT's attempts to repair or replace the goods have failed at least three times. In case of a withdrawal, the customer must have combined the aforementioned final notice under penalty of non-performance. Parts or components that are replaced in the settlement of defect claims may be new or refurbished parts. Ownership of all defective parts, which are replaced within the scope of the respective defect claims, is transferred back to SAIT.
The limitation period for material defect claims shall be one year from the start of the statutory limitation period. The statutory periods for recourse according to Section 479 of the German Civil Code (BGB) shall remain unaffected. The same applies insofar as the law prescribes longer periods in accordance with Section 438 (1) no. 2 or Section 634a (1) no. 2 of the German Civil Code (BGB), in the event of an intentional or grossly negligent breach of duty, fraudulent concealment of a defect and in cases of injury to life, limb or health, as well as for claims arising from the breach of contract. Processing of a notification of material defects by the customer by SAIT only leads to the suspension of the statute of limitations as far as the legal prerequisites for this exist. A restart of the statute of limitations does not occur as a result. Subsequent performance (new delivery or subsequent improvement) can only have an influence on the limitation period of the defect triggering the subsequent performance.
SAIT can demand reimbursement of its expenses as far as
SAIT acts on the basis of a report without there being a defect, unless the customer could not detect with reasonable effort that there was no defect, or a reported disruption is not reproducible or otherwise verifiable by the customer as a defect, or additional expenses are incurred due to improper fulfilment of the customer's obligations (see also number 15).
11. Defects of title
SAIT makes the products available to the customer in the contractually owed quality free of defects of title. SAIT is only liable for infringements of rights of third parties through its performance if the performance is used unchanged according to the contract and in particular in the contractually agreed environment, otherwise in the intended operational environment. SAIT is only liable for violations of the rights of third parties at the place of contractual use.
If a third party asserts to the customer that a SAIT service violates its rights, then the customer shall inform SAIT immediately. SAIT and, if applicable, its suppliers are entitled, but not obliged, to defend the asserted claims at their own expense as far as permissible. The customer is not entitled to acknowledge claims of third parties before it has given SAIT a reasonable opportunity to defend the rights of third parties in another way. The customer shall support SAIT to the best of its ability in defence against asserted claims.
If the rights of third parties are infringed by a SAIT service, then SAIT shall, at its own discretion and at its own expense,
provide the customer with the right to use the service, or make the service free of infringement, or take back the service with reimbursement of the remuneration paid for it by the customer (less appropriate compensation for use), if SAIT cannot achieve any other remedy with appropriate expenditure. The interests of the customer will be appropriately taken into account.
Claims of the customer due to defects of title become time-barred according to clause 10, paragraph 3. Clause 12 additionally applies to claims for damages and reimbursement of expenses of the customer, clause 10, paragraph 4 applies accordingly to additional expenses of SAIT.
The parties shall always be liable
to each other for damages caused by them or their legal representatives or vicarious agents intentionally or through gross negligence, in accordance with the mandatory provisions of the Product Liability Act, for damages resulting from injury to life, limb or health for which the causative party or its legal representatives or vicarious agents are responsible and insofar as they have assumed a guarantee for the quality of the subject matter of the contract. The causative party shall not be liable for slight negligence, except that it has breached an essential contractual obligation, the fulfilment of which is essential for the proper performance of the contract or the breach of which endangers the achievement of the purpose of the contract and on the observance of which the other party may regularly rely. This liability is limited to the contract-typical and foreseeable damage in the case of material damage and pecuniary loss. Liability for other consequential damages is excluded. For a single claim, liability is limited to a maximum amount of â‚¬150,000 (in words: one hundred and fifty thousand euros), but not more than twice that amount per year. If a further liability sum has been agreed by separate agreement, then this shall have priority. For indirect damages and consequential damages (including loss of use and loss of profit), the parties shall be liable to each other only in the cases specified in para. 1 a) - d).
The parties shall be liable to each other for the proven damage of the respective other party due to delay if an agreed final date for delivery/service provision is not met for reasons solely attributable to the party obliged to deliver/perform the service. The amount of the claim for damages due to delay shall be limited to 0.5% per week of delay, but to a maximum of 5% of the price of the parts which were not delivered on time.
The customer undertakes as an essential contractual obligation to back up its data directly or indirectly affected by the services under this contract at regular intervals appropriate to the application, but at least once a day, and thus to guarantee that these can be restored with reasonable effort. In case of a loss of data for which SAIT is responsible, SAIT shall only be liable for the restoration to the amount of the expenditure that would have been incurred if the customer had carried out the above data backups and in the event of slight negligence on the part of SAIT only if the customer has carried out a proper data backup in accordance with the duties of care appropriate to the type of data prior to the measure leading to the loss of data.
Within the scope of application of the German Telecommunications Act (TKG), the liability rule in Section 44 a of the Telecommunications Act remains unaffected.
If individual contracts are terminated, the following supplementary provisions apply:
Unlimited individual contract
An unlimited individual contract, e.g. for support services or telecommunication services may, unless otherwise regulated in the individual contract, be terminated with a period of 4 months notice to the end of the month, but not before the expiry of twelve months.
Individual contract with automatic extension
For a concluded individual contract with automatic extension by a further contractual year, a termination period of 4 months up to expiry of the minimum contractual period or the current extension period applies, unless otherwise regulated in the individual contract.
The following rule also applies to a concluded individual contract with automatic extension by a further contractual year: SAIT is authorised to transfer an offer for the continuation of the support services, which may contain altered prices, discounts or other conditions, to the customer no later than 60 calendar days before expiry of the current contractual year. If the customer does not object to the amendment offer within 30 calendar days from receipt of this communication, the offered conditions of extension (including the new or amended conditions) are deemed accepted by the customer and the individual contract is automatically extended on the basis of this offer. SAIT is obligated to inform the customer of the consequences of an omitted objection with the notification of amendment.
For every following contractual year, the customer must provide SAIT with the information necessary for invoicing before the start of the new contractual year. If the customer does not provide the necessary information despite being requested to do so, this can lead to a delay or interruption of the relevant performance.
A party can terminate an individual contract in writing without notice if the other party violates an essential provision of the accepted contract and this violation cannot be remedied, or if the other party violates an essential provision and has not found a remedy to the violation, which can be remedied, within 30 calendar days after written notice of this violation.
Furthermore, the products and services delivered by SAIT are regularly coordinated; upgrades or changes to hardware systems of the customer not coordinated with SAIT, by which products and services of SAIT are affected, therefore give SAIT a special right to termination without notice in relation to the affected services.
Every termination requires the written form to become effective.
14. Licence provisions
For software produced by SAIT itself
SAIT grants the customer a non-exclusive right of use for the use for internal purposes for all work results especially completed for the customer according to the service description, including software produced by SAIT itself for the customer as soon as the customer has paid the full invoice amount for these work results. The results of the work and all designs, concepts, methods, software engineering and models used or developed by SAIT within the framework of a service description remain the property of SAIT, or SAIT retains the exclusive rights thereto. The rights to know-how, technologies and other working methods contributed by SAIT shall remain with SAIT. SAIT grants the customer a non-exclusive right of use to this insofar as this is necessary for the use of the work results. The following shall apply:
the restrictions set forth in the offer with respect to the authorised purpose and number of users, developers, entries, and CPUs; and the additional license terms accompanying the software. The customer may make copies of the software solely for archiving purposes (including a backup copy for system failures) for their own use within the scope of the contractual provisions. The customer may not, however, modify or decompile the software or use any other form of reverse engineering.
The license may only be transferred to third parties after obtaining prior written approval from SAIT. Prior, written approval from SAIT is also required to issue sub-licenses, transfer licenses to third parties for a limited period of time or otherwise making licenses accessible.
SAIT is entitled to examine the customer's documents and systems itself or by an independent auditing company commissioned by it after a reasonable period of notice in order to ensure compliance with the license provisions. These reviews shall be conducted during the normal business hours of the customer in such a way as not to unnecessarily disrupt the business processes of the customer.
For services to be performed by SAIT
SAIT grants the customer a non-exclusive and non-transferable license, which grants the customer the right to use the results of the services to be carried out solely for internal purposes within the use stipulated in the contract.
It is only permitted for the sole purpose of fault diagnosis and correction to access SAIT tools in the systems listed in the respective individual contract (â€œIncorporated systemsâ€) by employees of the customer who have previously been authorised by SAIT in writing. Provision of an update does not affect the rights in case of defects for the previously licensed software. These updates may only be used in conjunction with deployment on the Incorporated Systems.
The customer is not permitted, except for archiving purposes, to make copies of the work results, to modify or decompile the work results, or to use a form of reverse engineering.
15. Obligations of the customer
Provision of the agreed services by SAIT requires the cooperation of the customer. The exact scope of the respective obligations to cooperate shall be specified in the service description or in the offer. In general, the customer cooperates closely with SAIT and is obliged to grant SAIT secure access to his business premises and computer systems, including remote access, at the agreed times, to provide an appropriate workplace and Internet access as well as to enable access to other facilities, provisions, competent personnel, information or documents which SAIT employees require to an appropriate extent for the fulfilment of SAITâ€™s obligations.
The customer must immediately report defects in writing in a comprehensible and detailed manner, stating all information useful for identifying and analysing the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be indicated.
Clause 12, paragraph 4 applies to the customer's data backup obligations.
16. Confidential information
Both parties undertake to treat as confidential the information received from the other party within the framework of the contract and the negotiations leading to the conclusion of the contract ('Confidential information').
The party receiving the confidential information in each case shall apply the same degree of diligence as it would apply to its own confidential information of comparable importance, but no less than the degree of diligence customary in the trade. It may use the confidential information only for the purposes set out in the contract. Confidential information may only be passed on to employees or contractors who are contractually or professionally obliged to maintain at least an equivalent level of confidentiality.
These obligations shall not apply to information which
become lawfully known to the receiving party without breach of its obligation to maintain secrecy, are developed independently by the receiving party without using the confidential information of the other party; or released for disclosure in writing by the disclosing party. In case the receiving party is obliged to disclose confidential information pursuant to mandatory statutory provisions, a court order or a decision of a court of arbitration, an order or decree of a state authority or stock exchange regulations, the party receiving the information shall immediately inform the party providing the information in writing about the necessity of such disclosure so that the disclosing party has the opportunity to intervene. Furthermore, the party receiving the information will do its best to obtain assurance that the confidential information will be treated as confidential by the entity concerned. If it is not possible or legally permissible for the disclosing party to inform the disclosing party prior to disclosure, the disclosing party must be informed immediately after disclosure to the extent legally permissible.
Unless otherwise agreed, this obligation shall end five years after the conclusion of the respective contract, but not before its termination in the case of continuing obligations.
17. General provisions
Amendments and supplements to the contract or these GTC must be made in writing in order to be effective (e-mail sufficient if it contains a qualified electronic signature within the meaning of the Digital Signature Act) and must be signed by an authorised representative of both parties. This also applies to all amendments or the waiver of this provision. Insofar as written form is required for declarations within the scope of an individual order, this shall also be complied with by simple e-mail, contrary to sentence 1 of this paragraph.
The customer shall be responsible for observing the import regulations, export regulations and other regulations applicable to the deliveries or services. The customer shall handle judicial or official proceedings in connection with cross-border deliveries or services on his own authority, unless the parties have expressly agreed otherwise.
SAIT may use the customer's name and logo (including all trademarks) in connection with the sale of products or services in advertising material, including press releases, presentations and customer testimonials, free of charge in all media worldwide. For advertising materials containing statements, quotations, remarks and comments of the customer, SAIT will obtain the prior consent of the customer, whereby the customer will only refuse this consent for important reasons.
The parties may not transfer or otherwise assign to any third party any rights or obligations under any contract without the prior written consent of the other party, which may refuse to do so only for good cause.
However, the parties may assign their claims from due payments and SAIT may use subcontractors to fulfil its obligations, SAIT being responsible for the services provided by these subcontractors.
Place of jurisdiction
To the exclusion of other jurisdictions, the parties expressly agree that any disputes arising out of or in connection with these GTC or the contract, including disputes with respect to their validity, shall be settled by the ordinary courts in Düsseldorf.
These GTC and the contract are subject to German law to the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).