General conditions

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1. General

1.1. These General Terms and Conditions (hereinafter referred to as "GTC") apply to the services provided by AmpereSoft GmbH, Jonas-Cahn-Str. 13, D - 53115 Bonn (hereinafter referred to as "AmpereSoft") to entrepreneurs (§ 14 of the German Civil Code – BGB), legal entities or institutions under public law or special funds under public law (öffentlich-rechtliche Sondervermögen) (hereinafter referred to as "Customers") with registered offices within the EU/EEA (hereinafter collectively referred to as "Services"), with the exception of the provision of software and the provision of services for the software.

1.2. These GTC apply exclusively. Customer, by concluding a contract with AmpereSoft for the Services (hereinafter referred to as "Contract"), is deemed to accept these GTC in the version valid at the time of conclusion of the Contract, provided that the inclusion of these GTC is agreed in the Contract. The Contract is concluded by Customer accepting a binding offer from AmpereSoft (hereinafter "Offer").

1.3. These General Terms and Conditions shall be provided to Customer in a written format free of charge at any time upon request. Deviating, conflicting or supplementary terms and conditions of Customer shall not become part of the Contract even if AmpereSoft had knowledge of Customer’s terms and conditions upon Contract conclusion. AmpereSoft expressly rejects the application of such terms and conditions of Customer. The precedence of individual agreements between AmpereSoft and Customer (individually "party" or jointly "parties") over these GTC remains unaffected. The provisions of § 312i para. 1 sentence 1 nos. 1 to 3, sentence 2 of the German Civil Code (BGB) shall not apply between the parties.

1.4. The sole language of the Contract shall be German. If the Contract or other contract-related documents are translated into languages other than German, only the German version shall be binding and authoritative. The languages used for and during Service provision shall be German and English.

1.5. If it is expressly agreed in the Contract by way of exception that AmpereSoft is liable to bring about a particular result (Erfolg) with regard to a certain service, this shall be deemed to constitute work performance (Werkleistung) within meaning of §§ 631 et seq. of the German Civil Code (BGB). All other services of AmpereSoft shall be deemed to constitute services (Dienstleistungen) within the meaning of §§ 611 et seq. of the German Civil Code (BGB).

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2. Principes of service provision

2.1. AmpereSoft provides the Services under the Contract independently and on its own responsibility. AmpereSoft's employees are exclusively subject to AmpereSoft's supervision and instructions. The employees engaged by AmpereSoft shall not be integrated into the work processes or the operational organization of Customer. AmpereSoft shall only be obliged to provide specific personnel to provide the Services if this is expressly agreed in the Contract ("key personnel").

2.2. If AmpereSoft provides Services in Customer's facilities or on Customer's systems, in particular the IT system, AmpereSoft shall urge its employees to exercise caution and to handle Customer's facilities and systems with care.

2.3. AmpereSoft shall perform the Services in accordance with the Offer with the necessary professional and commercial care to the best of its knowledge. AmpereSoft does not owe any quality of the Services that goes beyond the specifications in the Offer or, if applicable, any supplementary service description.

2.4. The interoperability of the Services provided by AmpereSoft with IT systems or other hardware, software or services used by Customer is not a contractually owed quality, unless this is expressly promised in text form. AmpereSoft is not responsible for the functionality and availability of IT systems, software, hardware and services that Customer maintains, operates or uses itself or through third parties.

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3. Subcontractors

3.1. AmpereSoft is entitled to have the Services performed in whole or in part by subcontractors. In doing so, AmpereSoft shall draft the contract with the subcontractor in such a way that, with regard to the Services to be provided by the subcontractor, it provides for obligations at least equivalent to those entered into towards Customer under the Contract.

3.2. AmpereSoft shall inform Customer about the commissioning of subcontractors at Customer's request in text form by naming the subcontractors and specifying the Services to be provided by them.

3.3. AmpereSoft shall be liable for any fault of its subcontractors in providing the Services to Customer to the same extent as for its own fault. Services provided by a subcontractor shall be deemed to constitute Services provided by AmpereSoft to Customer. The provisions for the relationship between Customer and AmpereSoft as well as AmpereSoft’s employees shall apply equally to the subcontractors.

3.4. Any deviating stipulations in a commissioned data processing agreement pursuant to Art. 28 GDPR, including, without limitation, any reservation of approval in favor of Customer, shall be observed by AmpereSoft.

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4. Deadlines, default of AmpereSoft, force majeure

4.1. Delivery periods, execution periods or execution dates, in particular milestones (hereinafter collectively referred to as "deadlines") agreed in the Offer or otherwise shall only be binding on AmpereSoft if they are expressly specified as binding in text form. Fixed dates (Fixtermine) shall only be those deadlines which are expressly designated as fixed dates.

4.2. AmpereSoft shall not be deemed in default if AmpereSoft is not responsible (nicht zu vertreten haben) for missing the deadline. This is particularly the case if Customer fails to provide support, cooperation or supplies. In the absence of an agreed deadline, AmpereSoft shall provide the Services within a period of time reasonable with regard to their nature, scope and complexity. In all other respects, the statutory provisions shall apply to the delay.

4.3. In the event of force majeure, AmpereSoft shall be released from its obligation to provide the Services affected thereby for the duration of the force majeure and for an additional reasonable period for the Services to be resumed. Deadlines (including fixed dates) shall be postponed by the aforementioned period without specific agreement between the parties. Force majeure shall include fire, explosion, flood, war, mutiny, blockade, embargo and pandemics for which AmpereSoft or an engaged subcontractor is not responsible as well as labor disputes for which AmpereSoft is not responsible (nicht zu vertreten haben).

4.4. In the event of a failure to meet deadlines, AmpereSoft shall only be liable to pay penalties, in particular contractual penalties, if these have been expressly agreed in the Contract in terms of reason, amount and scope.

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5. Cooperation and supplies to be provided by Customer

5.1. Customer’s obligations under the Contract to cooperate and provide supplies constitute ancillary performance obligations (Nebenleistungspflichten) towards AmpereSoft, which Customer must perform at no expense to AmpereSoft.

5.2. Customer shall create the conditions necessary for the provision of the Services in its area of responsibility at its own expense and shall fulfill its obligations to cooperate in such a timely manner that AmpereSoft has a reasonable lead time for the fulfillment of its obligations. Service-specific cooperation or provision of supplies shall be specified separately in the Contract.

5.3. The supplies and cooperation to be provided by Customer include but are not limited to the following:

5.3.1. Customer shall provide all information, documents and data agreed upon or required by AmpereSoft for the provision of the Services in due time and in an electronic format suitable for further processing by AmpereSoft. Customer shall inform AmpereSoft in text form (§ 126b of the German Civil Code – BGB) without undue delay (unverzüglich) if it becomes apparent that the information, documents or data are (have become) wholly or partially incorrect or incomplete.

5.3.2. Customer shall grant AmpereSoft access to buildings and premises as necessary for the provision of the Services. Customer shall provide work rooms, physical, logical and data access authorizations as well as technical and other work equipment (hardware, software, services, whiteboards, Internet access) to the extent agreed or required for the provision of the Services. This also includes the necessary rights to use third-party software or services, including, without limitation, databases, operating systems, applications and cloud services.

5.3.3. Customer shall provide the necessary, competent and reliable personnel to support the provision of Services by AmpereSoft. Customer is obliged to coordinate the persons involved on its part and shall bring about the decisions necessary for the continuation of Service provision in due time.

5.3.4. Customer is obliged, to a reasonable extent, to make backups of all systems and data that are affected by the provision of Services by AmpereSoft. AmpereSoft shall not be liable for damage incurred by Customer due to a backup not being made or not being made properly.

5.3.5. Reporting of defects or other malfunctions by Customer must be such that a competent employee of AmpereSoft can understand the report without consulting Customer. The report shall be accompanied by screenshots or other appropriate descriptive documents, if applicable. Customer’s report must name a contact person familiar with the facts and their effects to answer any queries.

5.3.6. If the parties have agreed that AmpereSoft is authorized to remotely access Customer's IT systems, Customer shall provide AmpereSoft with the guidelines applicable to such remote access at Customer's premises and with all information and components required for such access, in particular access data, software and tokens, free of charge.

5.3.7. Customer shall provide test cases, test data and test environment, if required.

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6. Remuneration

The remuneration to be paid by Customer and other remuneration specifications are stated in the Offer. If the Offer does not contain any specifications, this clause shall apply as a supplement.

6.1. The remuneration does not include value added tax, which must be paid on top at the statutory rate.

6.2. Invoices from AmpereSoft are due upon receipt by Customer and are payable without deductions within fourteen (14) days to the account specified in the invoice. In the event of payment on a time and material basis, suitable proof of performance shall be attached to the monthly invoices. AmpereSoft is entitled to provide the invoices to Customer in an electronic format in accordance with § 14 of the German Value Added Tax Ac (UStG). In the event of late payment (Zahlungsverzug), AmpereSoft shall be entitled to charge default interest on arrears at the statutory rate without the need for a prior reminder or other payment request on the part of AmpereSoft.

6.3. Travel costs and expenses incurred in the provision of the Services shall be reimbursed separately by Customer in accordance with the specifications in the Offer or, if missing or incomplete, in accordance with the maximum rates under tax law applicable at the time of the provision of the Services.

6.4. If a fixed lump-sum price has been agreed, the payment schedule agreed therein shall apply. Otherwise, the following payment schedule shall apply: 35% upon Contract commencement, another 35% upon the first partial delivery or, otherwise, no later than six months after Contract commencement, finally another 30% upon completion of the provision of the Services, calculated in each case on the basis of the fixed lump-sum price.

6.5. IIf remuneration based on daily rates is agreed in the Offer or in the Contract, these shall be calculated on the basis of an eight-hour man-day on working days. The remuneration shall be calculated on a pro-rata basis according to the actual scope of Services provided on a given day.

6.6. AmpereSoft is entitled to adjust the remuneration to the general price development at the place of the registered office of AmpereSoft half-yearly on January 1 and July 1 of each calendar year. If the increase in remuneration amounts to more than 10% within a contract year, Customer shall be entitled to terminate the contractual relationship extraordinarily for cause within four weeks of receipt of the notice of increase. The termination shall take effect on the date on which the increase in remuneration was to take place.

6.7. Customer shall only be entitled to offset if Customer’s counterclaims have been established by a final non-appealable decision (res judicata) or have been recognized by AmpereSoft or are undisputed; this shall not apply in the case of Customer’s claims for defects against AmpereSoft that arise from the same contract. Customer shall only be entitled to exercise a right of retention if Customer’s counterclaim is based on the same contract.

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7. Liability

7.1. The parties shall be liable to each other for all damage caused by them in the performance of the Contract in accordance with the statutory provisions, unless agreed otherwise in this section. This shall also apply to the liability of executive bodies (Organe), vicarious agents or other persons engaged by the parties in the fulfilment of their obligations (Erfüllungsgehilfen) or subcontractors.

7.2. In the case of simple negligence (einfache Fahrlässigkeit), AmpereSoft's liability resulting from the breach of essential contractual obligations (wesentliche Vertragspflichten) shall be limited to the foreseeable damage to Customer typically occurring under the Contract. In cases other than the breach of essential contractual obligations by AmpereSoft, the liability for compensation of indirect material damage and financial loss, including, without limitation, loss of profit, shall be completely excluded in the case of simple negligence. Essential contractual obligations shall be all obligations of AmpereSoft, the fulfillment of which enables the use of the Services in the first place and on the compliance with which Customer usually relies or is reasonably allowed to rely.

7.3. The general limitation period for claims for defects or other breaches of duty is one year; this shall not apply to claims for damages.

7.4. Notwithstanding the foregoing, AmpereSoft shall have unlimited liability in the event of intent, gross negligence, fraudulent intent or given guarantees (Garantien), for damage to life, limb or health, and for claims under the German Product Liability Act (Produkthaftungsgesetz).

7.5. Guarantees shall only be deemed given by AmpereSoft when expressly granted in text form by use of the terms "guaranty" or "guarantee". Formulations such as "ensure", "assure" or “warrant” shall not constitute guarantees and do not entail any no-fault or strict liability on the part of AmpereSoft.

7.6. For Customers from the USA, the following deviating regulations shall apply:

7.6.1. The liability of AmpereSoft, its legal representatives, vicarious agents or other persons engaged by AmpereSoft in the fulfilment of its obligations (Erfüllungsgehilfen) is comprehensively and conclusively governed by these GTC. To the extent permitted by applicable law, the liability of AmpereSoft, its legal representatives, vicarious agents or other persons engaged by AmpereSoft in the fulfilment of its obligations is excluded, including, without limitation, liability for direct or indirect damage, including lost profit, regardless of foreseeability, and any other damage incurred by Customer in connection with the Services provided. This shall apply even if AmpereSoft, its legal representatives, vicarious agents or other persons engaged by AmpereSoft in the fulfilment of its obligations have been advised by third parties of the possibility of such damage occurring due to the Services. Customer is aware that the remuneration and other expenses to be paid by it fully reflect these risks.

7.6.2. If the limitation of liability according to sec. 7.6.1 should not apply in exceptional cases because the Services provided by AmpereSoft are found by res judicata decision of a court of jurisdiction to be defective or otherwise in breach of duty, which has directly caused damage to life, health or property, AmpereSoft's liability shall in any event be limited to a maximum of USD 50,000 or the amount of remuneration paid by Customer, whichever is greater.

7.6.3. Except as expressly provided herein, there is no other liability of AmpereSoft and AmpereSoft gives no other guarantees with respect to the Services, whether express or implied and whether based on a declaration or action of AmpereSoft or a third party. AmpereSoft, its legal representatives, vicarious agents or other persons engaged by AmpereSoft in the fulfilment of its obligations (Erfüllungsgehilfen) do not assume any liability or guarantee and do not warrant or assure any properties with respect to the use of the results of the Services in terms of correctness, reliability, accuracy of the results of the Services or their fitness or suitability for permanent use.

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8. Confidentiality and data protection

8.1. The parties are obliged to keep secret all information to which they have access in connection with the Contract, insofar as such information constitutes business secrets within the meaning of § 2 no. 1 of the German Act on the Protection of Business Secrets (GeschGehG), in particular knowledge of internal processes of the other party.

8.2. The parties shall ensure compliance with the applicable data protection regulations. To the extent necessary with regard to the Services of AmpereSoft, the parties shall conclude, in addition to the Contract, an agreement for commissioned data processing in accordance with the requirements of Art. 28 para. 3 GDPR. The commissioned data processing agreement shall take precedence over the Contract as regards its scope of application.

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9. Prohibition of assignment

The assignment of claims arising from a Contract requires the prior consent of the other party in text form (§ 126b of the German Civil Code – BGB). The other party may withhold consent only for good cause. Third parties shall not include companies affiliated with the respective party within the meaning of §§ 15 et seq. of the German Stock Corporation Act (AktG) that are established in the EU. § 354a of the German Commercial Code (HGB) shall remain unaffected. The complete transfer of the Contract to third parties is excluded.

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10. Final provisions

10.1. The Contract concluded on the basis of these GTC shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws rules with the exception of Art. 3 para. 3, para. 4 of the Rome I Regulation.

10.2. The exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the Contract shall be the place of the registered office of AmpereSoft. AmpereSoft is entitled to take legal action against Customer at the latter’s general place of jurisdiction (allgemeiner Gerichtsstand)..

10.3. No oral side agreements have been made. Amendments and supplements to the Contract and all declarations of the parties relating thereto must be made in text form ((§ 126b of the German Civil Code – BGB). This shall also apply to the cancellation or waiver of this form requirement.

10.4. Should individual provisions of these GTC be or become invalid or void in whole or in part, this shall not affect the validity of the GTC or the remaining provisions of the Contract. The same shall apply in the event of a gap in these GTC as well as for the Contract concluded between the parties.

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Special conditions for trainings, seminars and events

These Special Conditions shall apply in addition to the General Terms and Conditions when AmpereSoft conducts training, seminars or events for Customer (hereinafter collectively "Events").

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11. AmpereSoft registration and Services

11.1. Registration for seminars is done by filling out and sending the registration forms at https://amperesoft.net/en/trainings. Registration for AmpereSoft Events can be made up to two (2) weeks before the start of the Event, unless otherwise specified in individual cases. Upon receipt of the confirmation of participation by Customer in text form, the registration shall be binding. For other Events, the conditions stated in the Offer shall apply.

11.2. The Services provided by AmpereSoft are specified in the registration form or the Offer. If AmpereSoft offers Customer training units and training packages, these must be used up within six (6) months after conclusion of the Contract. Otherwise, remaining training units will expire and will not be refunded.

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12. Participation fees

12.1. If the remuneration (participation fee) includes Event documents and/or catering, this will be stated on the registration form or in the Offer. Otherwise, the costs for this as well as any own costs of Customer for travel and overnight stays are to be paid separately.

12.2. The remuneration shall be paid in advance as stated in the invoice sent by AmpereSoft.

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13. Cancellation

Customer can cancel its registration free of charge in text form (§ 126b of the German Civil Code – BGB) up to two weeks before the start of the Event. If Customer is prevented from attending the Event, a substitute participant can be named as an alternative. In the event of a later cancellation or non-attendance, the remuneration must be paid in full.

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14. Cancellation of events

14.1. AmpereSoft reserves the right to cancel an event without giving reasons no later than two (2) weeks prior to the scheduled date or later for reasons beyond AmpereSoft's control (e.g. illness or other prevention of the speaker, disruption at the venue).

14.2. In the event of a cancellation, any remuneration already paid by Customer shall be refunded within two (2) weeks, if a rescheduling of the date or a rebooking to another Event is not requested by Customer. This shall not apply if the cancellation is due to force majeure. In this case, AmpereSoft shall be entitled to issue Customer a voucher for a future event, which shall be valid for at least two years.

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15. Changes to Events

AmpereSoft reserves the right to make changes to the content, methodology and organization of an Event, even at short notice, provided that the benefit of the Event for the participants is not significantly changed as a result. AmpereSoft is entitled to replace a speaker with another equally qualified speaker. AmpereSoft will inform the participants in good time of any changes to the date or location of the Event.

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16. Event documents

16.1. Customer receives any Event documents at the beginning of the Event. AmpereSoft retains ownership of the Event documents until full payment of the remuneration.

16.2. Customer is only entitled to use the Event documents for its own purposes. Any exploitation or public communication or reproduction beyond the statutory limits under copyright law require the prior consent of AmpereSoft in text form.

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Special Conditions for Professional Services and Managed Services

These Special Conditions apply in addition to the General Terms and Conditions when AmpereSoft provides Professional Services or Managed Services to Customer.

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17. AmpereSoft Services

17.1. An essential component of the Services can be deliveries and services which AmpereSoft procures from third parties for Customer (hereinafter "External Services"). For these External Services, the service descriptions of the respective service providers apply, to which AmpereSoft will refer Customer in due time prior to the conclusion of the Contract. In these cases, AmpereSoft merely arranges access to these External Services for Customer in its own name and on its own account. AmpereSoft shall only be liable to bring about a performance result of its own (Leistungserfolg) if this is expressly agreed with Customer in text form.

17.2. AmpereSoft shall only be obliged to ensure certain service levels for the Services if these have been expressly agreed in text form. This shall include, without limitation, the obligation to comply with response times or recovery times in the case of defects or other malfunctions, also in the case of External Services.

17.3. AmpereSoft shall only be obliged to provide documentation of the Managed Services or a report on the type and scope of the Services provided if this is expressly stated in the Offer.

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18. Liability for breach of duty

18.1. AmpereSoft is obliged to provide Customer with Services in the agreed quality and quantity. In the event of breaches of duty that are not related to a defect occurring in the context of a purchase, rental or work, AmpereSoft shall provide the Service subsequently to the extent this is possible and reasonable in view of the nature of the Service. Otherwise, Customer's claims in such a case shall be limited to claims for damages in the amount specified in sec. 7 if Customer has incurred specifically quantifiable damage.

18.2. In the case of External Services, AmpereSoft's liability shall be replaced by AmpereSoft assigning all claims for defects and breaches of duty against the service providers to Customer at the latter's request. In addition, AmpereSoft remains liable as described in the following:

1. AmpereSoft shall provide a version of the External Services provided by service provider that remedies the defect or breach of duty.

2. If such a version is not available, AmpereSoft shall provide a workaround. If a workaround is not possible or reasonable, AmpereSoft shall seek to obtain from the service provider a version of the External Service that remedies the defect or breach of duty as soon as possible. AmpereSoft shall provide information on the measures taken to this end upon Customer’s request. A workaround shall be deemed unreasonable for AmpereSoft in particular (without limitation) in the following cases: (i) the provision of the workaround would result in a change to the External Service that would have a more than insignificant effect on other customers of AmpereSoft or third parties, (ii) AmpereSoft would have to provide an External Service for which AmpereSoft has not concluded a contract with the service provider, or (iii) AmpereSoft would have to make changes to the source code of the External Service for this purpose.

3. Customer shall be obliged to put into operation any version of the External Service that remedies the defect or breach of duty at its own expense. This shall not apply if this is not possible or reasonable for Customer because the new version differs more than insignificantly from the previous version or its putting into operation involves more than insignificant expense for Customer.