Terms and Conditions of SPACE44 GmbH
Version: 4.11, date: Sep 23, 2024
Section 1 – Subject Matter of the Contract
SPACE44 GmbH (hereinafter also “Contractor”) is a service provider that support clients (“Clients”) in the context of IT and design projects through various Services and offers technology-independent IT and design consulting Services.
The following terms and conditions govern the type and scope of the provision of Services in the field of software development as well as IT Services for the client during the agreed contract period.
Clients are exclusively companies within the meaning of § 14 BGB (German Civil Code). Services to consumers according to § 13 BGB will not be provided by the Contractor.
Section 2 – Definitions
- “Deliverables” means all works created by the activities of the Contractor under the collaboration, in particular any contract software and documentation created.
- “Documentation” includes user documentation, installation description, interface descriptions, source code documentation, and maintenance documentation.
- “Employees” are employees of the respective party or “affiliated companies” of the respected party or employees without employee status such as freelancers and/or temporary workers or other subcontractors.
- “Consultants” are the Employees (including freelancers and other subcontractors) employed by the Contractor for the purpose of providing Services.
- “Confidential Information” shall mean all information and documents of the other party which are to be classified or, in the circumstances, to be regarded as confidential, in particular information on operational processes, business relationships and know-how, and, for the Contractor, all results of work.
- “Services“ are the Services provided by the Contractor through its Consultants on the basis of the agreement concluded on the basis of these T&Cs. Each Consultant named in an offer constitutes an independent Service under these T&Cs, for which the term specified in the offer applies.
- A “Project“ is a service project in which Services are provided by the Contractor through its Consultants. A Project can include Services from multiple Consultants.
Section 3 – Service Delivery
- The Contractor shall always provide its Services in the form of pure Services according to appropriate professional care. Accordingly, the Contractor is not obliged to deliver a certain work result in the provision of his Services. The Contractor does not carry out any independent testing or documentation of development Services, unless this is expressly ordered by the Client as part of the Project and coordinated and monitored by the Client.
- The Contractor is entitled to decide freely on the place of supply of Services. In particular, the Contractor will not perform its Services on the premises of the Client. The development work is always carried out in the Client´s system environment. Work results are stored exclusively there. The Contractor does not back up any codes or data on its own systems. This is the sole responsibility of the Client.
- The Contractor is always entitled to provide Services by an employee or subcontractor of his choice. Should additional training times arise as a result of the replacement of employees and subcontractors, the Contractor will not invoice these training times.
- The Contractor is entitled to engage subcontractors. The employees or subcontractors are always involved in the Client’s Projects. The project management and organization is the responsibility of the Client.
- The Client must ensure by the manner of the contract and by appropriate internal organizational measures that no relationship arises with employees of the contractor, which can be regarded as an employment relationship between the Client and the Employee of the Contractor. In particular, no e-mail addresses of the Client may be assigned which indicate a company integration.
Section 4 – Takeover of Employees / Direct Assignment
- If the Client takes over an Employee of the Contractor as its own employee, the Contractor shall be entitled to a fee equal to 30% of that employee s first gross annual salary. For the calculation of the first annual gross income, all remuneration components are taken into account. In particular, this also includes components that are paid independently of success and/or performance-related. Non-performance-related allowances such as monetary benefits, foreign allowances, housing expenses allowances or representation allowances are determined at their tax value. Performance-related salary allowances such as royalties, bonuses or profit shares are determined at their normally expected or usual value. Benefits in kind are determined at their monetary advantage. This amount shall be payable to the Contractor if the employment is during the term of this contract or during the first 12 months following the termination of this contract.
- If the Client directly appoints a Consultant designated or mediated by the Contractor for a Project, the Contractor shall be entitled to a flat-rate commission to be paid by the Client in the amount of EUR 24,000 per year in which such a direct appointment takes place. This commission does not apply if the Client proves to the Contractor the actual scope of the direct appointment by presenting the remuneration invoiced by the respective Consultant together with ancillary costs (fare, expense allowance, etc.). In this case, the Client must pay during the first two years from the start of the direct commission to the Contractor instead of the flat-rate commission a percentage of 30% of the net contract value of the Services provided. This payment obligation only arises if the direct commissioning takes place during the term of the contract or in the first 12 months after termination of the contract.
Section 5 – Information Law and Reporting
The Client has the right to inform himself about the progress of the Project at any time. For this purpose, the Contractor shall, upon request, send the contracting entity the necessary information.
Section 6 – Compensation / Travel Expenses
- The Client shall pay the remuneration specified in the offer for the Services of the Contractor. The Services mentioned in the offer will be invoiced upon service delivery on a “Time- & Material“ basis unless otherwise stipulated in the Section on the minimum request obligation.
- If the Client specifically requests the Contractor to perform work on a weekend or on a public holiday, the remuneration for these days increases by 25% for Saturdays or by 50% on Sundays and public holidays. The statutory public holidays at the Contractor’s headquarters are decisive.
- Billing is carried out monthly for the Services provided in the previous calendar month. The billed Services are due 7 days after receipt of the invoice.
- Insofar as the Contractor provides Services at the registered office of the Client or any other place of use specified by the Client, travel expenses shall be reimbursed in the amount provided for in the offer. If there is no provision for travel expenses in the offer, the travel expenses incurred by the cheapest means of transport shall be reimbursed, unless it is expressly agreed that travel expenses will not be reimbursed.
Section 7 – Deposit
- The Client shall pay to the Contractor a deposit for each commissioned Consultant before their deployment, calculated as 160 hours times the agreed hourly rate of the respective Consultant.
- The Contractor shall promptly refund the corresponding deposit upon the termination of the last contract extension for the respective Consultant. The refund will only be processed provided that there are no liabilities on the part of the Client that could be offset against it.
- The provisions of paragraph 1 of this Section 7 apply to all extension contracts concerning the respective Consultant from the original contract. A new payment of a deposit is not necessary in this context, and the deposit assigned to a specific Consultant remains in effect for the entire duration, including all contract extensions.
Section 8 – Recruiting Fee
- For new clients and upon a dedicated assignment the followings applies: SPACE44 can also search for Employees according to a skillset specified by the Client (recruiting). In case of such an assignment, SPACE44 will carry out the search and propose to the Client the desired number of suitable Consultants. For these Services, SPACE44 will charge a recruiting fee of 50% for each respective position according to Section 7. The anticipated hourly rate will be used as the basis for calculation.
- If the Client commissions a Project with SPACE44 within 30 days of presentation of the Consultant, the Recruiting Fee will be offset against the deposit according to Section 7 payable for the presented Consultant.
- If the Client does not commission a project within 30 days of presentation, the recruiting fee will not be set off and remains in full with SPACE44.
- If SPACE44 is unable to suggest a suitable Consutant, SPACE44 will inform the Client accordingly and refund the Recruiting Fee.
Section 9 – IP Rights
- At the time of payment of the respective service, the Contractor grants to Client the non-exclusive unlimited and irrevocable right regarding all Deliverables. In particular, the Client is without limitation entitled to reproduce, edit (also connect software with other programs, redesign, convert into other programming languages and for other operating systems), transfer them into other forms of presentation and otherwise modify, continue and supplement them in an unaltered and modified form, reproduce wired and wirelessly publicly, sublicense and transfer all rights of use granted under this contract for remuneration and fees.
- The Contractor also uses Open-Source components during the development. In particular, Open-Source components are software components licensed under a license agreement that is qualified as an Open-Source license by the Open-Source Initiative (OSI).
- The Client shall authorize the Contractor, by means of this contract, to license the Contractor on behalf of the Contractor in accordance with this paragraph of Open-Source licensing agreements which the Contractor considers necessary for the project. If licensing on behalf of the Client is not possible, the Contractor will license the respective component in his own name and grant the license to the Client on equal terms or, if this is not possible under the respective license agreement, to the extent as far as possible under the respective license agreement.
- In particular, the Contractor is entitled (without prior consent) to use and license Open-Source components and license them for and to the Client.
- The Client undertakes to take into account the respective license conditions in the further development, distribution, transfer of rights as well as in the case of a changed purpose of the software in accordance with the respective license agreements.
Section 10 – Term
- This contract is concluded for an indefinite period. This contract may be terminated with 3 months’ notice to the end of a calendar year. Even after the end of this contract, the provisions for the individual contracts commissioned during the term shall continue to apply.
- Each Consultant named in an offer represents an independent service under these terms and conditions, for which the term specified in the offer applies individually. Consultants can also be terminated during the term according to the following principles:
- One Consultant may be terminated with 14 days’ notice.
- If a second termination of a Consultant occurs simultaneously with the termination of the first Consultant or during the termination period of the first Consultant, this second Consultant may be terminated with a notice period of four weeks.
- For any further early termination declared simultaneously with the first or second termination or during two ongoing notice periods, a notice period of two months shall apply to all further early terminations.
- In the case of simultaneous terminations, the Client must indicate the order of priority of the terminations. If the Client does not provide any information in this respect, a notice period of two months shall apply to all Consultants terminated at the same time.
- Any termination must be in text form (e.g. E-Mail).
Section 11 – Minimum Request Obligation
- During the term of this contract, in particular also during the notice period, the Client is obliged to request the Services to the extent of the calendar-monthly minimum request per Consultant provided for in the offer. If the term of an ordered individual service (Consultant) only covers part of a calendar month, the calendar-monthly minimum request shall be reduced accordingly. Only the working days of the corresponding calendar month are to be taken into account in the calculation. The local working day calendar of the Consultant is relevant here. Downtimes on the part of SPACE44 (e.g. due to holiday or illness of the respective Consultant) reduce the mandatory minimum request accordingly.
- If the Client falls short of the agreed minimum request per Consultant by up to 10% in a calendar month, the Client is obliged to call off correspondingly more Services in the following calendar month. This carry-over shall then be deemed to be part of the minimum request agreed for this calendar month.
- If the Client falls below the agreed minimum request per Consultant by more than 10% in a calendar month, SPACE44 reserves the right to charge 90% of the agreed minimum request for this calendar month.
Section 12 – Liability
- Within the scope of this contract, the Contractor shall only be liable for damages, (a) which the Contractor or its legal representatives or vicarious agents have caused intentionally or through gross negligence or which (b) have arisen as a result of injury to life, body or health as a result of a breach of duty by the Contractor or one of its legal representatives or vicarious agents. The Contractor shall also be liable, (c) if the damage has arisen as a result of the breach of an obligation of the Contractor, the fulfilment of which enables the proper execution of the contract in the first place and on whose compliance the Client regularly trusts and may rely (cardinal obligation).
- The Contractor shall be liable in the cases referred to in paragraph 1, letters (a) and (b) indefinitely in the amount. In addition, the claim for damages is limited to the foreseeable damage typical of the contract. If, in the opinion of the Client, the foreseeable damage typical of the contract exceeds EUR 1 million, he is obliged to inform the contractor about this.
- In cases other than those referred to in paragraph 1, the Contractor’s liability is excluded regardless of the legal ground.
- The liability provisions in the preceding paragraphs also apply to the personal liability of the Contractor’s organs, employees and vicarious agents.
- Insofar as liability under the Product Liability Act arises from the assumption of a guarantee or due to fraudulent deception, it remains unaffected by the above liability regulations.
Section 13 – Data Protection and Data Security
The Contractor shall comply with the rules of data protection, in particular if he is granted access to the operation or to hardware and software of the Client. He ensures that his employees and vicarious agents also comply with these provisions, in particular he obliges them to data secrecy before commencing their activities. The Contractor does not intend to process or use personal data on behalf of the client. The personal data will be treated by the Contractor in accordance with the data protection regulations.
Section 14 – Confidentiality
- The parties agree to maintain confidentiality about confidential information. This obligation shall continue for a period of 6 months following the termination of the contract.
- Excluded from this obligation are such confidential information,
- which were demonstrably already known to the recipient at the time of conclusion of the contract or subsequently become known by third parties, without violating a confidentiality agreement, legal regulations or official orders;
- which are publicly known at the time of conclusion of the contract or are subsequently made public, unless this is due to a breach of this agreement;
- which must be disclosed on the basis of legal obligations or by order of a court or authority. Where permitted and possible, the recipient required to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.
- The parties will grant access to confidential information only to Consultants subject to professional secrecy or to whom obligations under the confidentiality obligations of this contracthave previously been imposed. Furthermore, the parties will disclose only the confidential information to those employees who are required to know them for the performance of this contract and will also oblige such employees to maintain confidentiality to the extent permitted by labour law for the period after their departure.
- Every culpable violation of these regulations results in an appropriate contractual penalty, which is to be determined appropriately by the injured party and which can be checked for appropriateness by the competent court. Further claims of the injured party remain unaffected.
Section 15 – Final Provisions
- Each contracting party shall bear the costs incurred by it in connection with this contract and its implementation.
- These General Terms and Conditions apply in addition to the respective individually contractually negotiated agreements and to the offers of the Contractor. General terms and conditions of the client are hereby expressly contradicted.
- German law applies to the exclusion of the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods.
- All disputes arising out of or in connection with this agreement (including those concerning its validity) shall be the exclusive jurisdiction of the courts in Munich in the first instance.
- Amendments and additions to this contract as well as a waiver of any right under this contract must be made in writing or text form in order to be effective. This also applies to the renunciation of the written form requirement or the text form requirement. There are no verbal ancillary agreements
- Should any provision of this Agreement be ineffective or unenforceable in whole or in part, or if the validity of the remaining provisions is subsequently lost or a loophole is found, this shall not affect the validity of the remaining provisions. The parties undertake to agree, in place of the invalid or unenforceable provision or to fill the loophole, an appropriate provision which, to the extent legally permissible, comes closest to what the parties wanted or would have wanted according to the meaning and purpose of the contract if they had known the invalidity or the loophole. If the invalidity or impracticability of a provision is based on a degree of performance or time (period or deadline) specified therein, the legally permissible measure closest to the provision shall be agreed.