I. GENERAL INFORMATION
These General Terms and Conditions of Purchase (hereinafter “GTC”) apply to all business relationships in connection with IT services for development, implementation and support projects between Audi Planung GmbH, Neuhartshöfe 3, 85080 Gaimersheim (hereinafter “Audi Planung”, “Principal”, “We” or “Us”) and our contractors (hereinafter “Contractor”, Audi Planung and Contractor jointly hereinafter the “Parties”).
The GTC apply in particular to agreements regarding the provision of any type of IT services, as further substantiated in the respective written purchase orders or release orders from Audi Planung (hereinafter “Purchase Order”) or in project agreements agreed upon in writing between the parties (hereinafter “Project Agreements”), (“Purchase Order” or “Project Agreement” hereinafter “Agreement” or “Contract”), which are based on these GTC (hereinafter “IT Services”). IT services may in particular include the following services: analysing and documenting requirements, developing custom software, customising and licensing standard software, preparing and handing over documentation, implementing software, migrating data, providing training and education for our employees or for third parties, maintaining and servicing software and hardware, delivering hardware and hosting software.
Insofar as this relates to bilateral commercial transactions, the GTC apply also to all future agreements with the contractor, without us having to refer to them in each individual case. The version of the GTC that was valid at the time of contract conclusion shall be applicable.
These GTC and any other agreements that may be applicable in accordance with clause I. 5. shall exclusively apply. Any deviating, contradictory or supplementary General Terms and Conditions of the contractor shall only become part of the contract if we have expressly agreed in writing to their validity. This requirement to consent applies in any case, for example, even if we accept the contractor’s services without reservations, regardless of being aware of its General Terms and Conditions.
Any individual agreements that have been reached with the contractor in individual cases (including subsidiary agreements, supplements and amendments) shall always have priority over these GTC. Our written confirmation is relevant for the content of such agreements.
Material statements and announcements that are to be made by the contractor to us after contract conclusion (e.g. setting deadlines or delivery dates, reminders, declarations of withdrawal) must be in written form (text form is not sufficient).
II. CONTRACT CONCLUSION, COMMENCEMENT OF CONTRACT AND CANCELLATION
Any agreement with us becomes effective with the written acceptance of a written offer by one party (e.g. a written purchase order by us) or by a project contract that has been agreed upon by the parties in writing. The contractor is not entitled to the conclusion of an agreement.
Our written purchase order or the offer to conclude a project contract must be confirmed in writing by the contractor within seven (7) business days. A late declaration of acceptance is considered a new offer and requires our acceptance. A purchase order is also considered accepted if the contractor immediately (i.e. within the aforementioned period) after receipt of the purchase order commences with providing the services.
Unless a different date has been agreed upon in the purchase order or project contract, the contract commences at the earliest at the time of contract conclusion and ends after complete provision of all contractual services.
In the event of continuing obligations, we are entitled at any time (even without a good cause shown) to cancel the contract subject to a notice period of four (4) weeks. In this case, Audi Planung shall compensate only for services that were performed until the time of cancellation. The extent of completion in accordance with the agreed upon schedule is relevant for this purpose. The right of Audi Planung to cancel in accordance with Section 648 of the German Civil Code (BGB) remains unaffected.
Each party can terminate the contract for good cause without notice. Good cause means especially if (i) an application for instituting insolvency proceedings has been filed, a protective umbrella or other similar proceedings regarding the assets of the respective other party have been instituted, or if (ii) insolvency proceedings regarding the assets of the respective other party have been initiated or initiation has been rejected due to lack of assets, or if (iii) proceedings for obtaining an affirmation in lieu of oath are carried out. Audi Planung can furthermore terminate for good cause if (i) it becomes apparent that the contract performance is jeopardised due to the contractor’s lack of performance or if (ii) the contractor or its legal successor does not perform in accordance with the contract despite having been granted a reasonable extension.
III. PERFORMANCE PRINCIPLES
Unless otherwise expressly agreed in writing, our provisions and requirements in purchase orders or project contracts and, if applicable, our documents of the technical, business and/or legal invitation to tender and, if applicable, our request to provide a quotation or our specifications alone shall be decisive for the content and scope of IT services and shall become part of the contract. The agreements that are based on these GTC regulate, among other things, the scope of IT services, targets, completion dates, specifications to be observed and other specifics that must be observed by the contractor.
The contractor ensures that it is familiar with all DIN, VW, Audi and other standards, laws, regulations and provisions that must be observed during the service performance based on legal provisions or any other additional agreement. This includes the documents on information security of AUDI AG and VW AG, which can be accessed at www.vwgroupsupply.com in their respective valid version. If the contractor has any doubt as to the applicability of individual standards or provisions, it shall consult with Audi Planung and effect clarification for the issues in doubt. The standards and provisions specified in this section are part of the contract. The contractor is obligated to fulfil all obligations arising from these standards and provisions.
The contractor shall perform the IT services with due regard to the state of the art (in particular the quality level of ISO 9000:2000), in perfect quality and on time. In particular, it shall protect our systems against unauthorised access by third parties (e.g. hacker attacks) and against unwanted data transmission (e.g. spam) with due regard to the state of the art.
Before handing them over to Audi Planung, the contractor shall check the supplied software and data carriers using an appropriate, up-to-date virus scanner and shall ensure that the software and data carriers do not contain any malware (malicious software), computer viruses or worms, Trojan horses or similar.
Audi Planung is entitled to check on the contractor’s execution state of the scope of services in the contractor’s plants and/or workplaces at any time within regular business hours upon prior announcement. The contractor is obligated to include an equal right in favour of Audi Planung in its contracts with subcontractors.
The contractor must safeguard the rights and interests of the principal within the scope of its service performance. Unless Audi Planung has given explicit written authorisation (text form is not sufficient), the contractor shall not conclude, cancel or modify any contracts in the name or on behalf of Audi Planung or its principals (e.g. AUDI AG), enter into legal or financial obligations for Audi Planung or its principals or otherwise agree upon any legally binding agreements or actions that are legally binding for Audi Planung or its principals.
The contractor is at liberty to manage its work time. However, the contractor shall coordinate with us with respect to the cooperation of the parties and compliance with deadlines. The contractor alone is responsible for complying with the provisions of the Act on Working Hours regarding personnel deployed by it for providing the IT services.
The contractor is at liberty to select the location of service performance. Prior coordination between us and the contractor is necessary if service performance is required in our or our principals’ plant or premises. Planning and performance of any business travel that may be required for performing the services shall be independently carried out by the contractor and at its responsibility.
The contractor commits to comply with the provisions for paying the statutory minimum wage for all services that are performed with respect to Audi Planung. If Audi Planung as the principal is claimed against pursuant to Section 13 of the German Minimum Wage Law (MiLoG) in conjunction with Section 14 of the German Posted Workers Act (AEntG) due to the contractor’s violation of the aforementioned obligation, the contractor shall indemnify and hold harmless Audi Planung from any possible liability or obligations (including, if applicable, costs for legal procedures, administrative fines and any other claims from social insurance carriers). In the event of any claims, the contractor is obligated to fully and comprehensively support Audi Planung with respect to its defence. The contractor furthermore commits to impose the aforementioned obligations with the same content to any subcontractors that may be deployed pursuant to clause VI.
The contractor commits to complying with all applicable mandatory legal, occupational association and other safety regulations and requirements, in particular referring to occupational health and safety, that are applicable to the premises of Audi Planung and its principals (e.g. AUDI AG). If the contractor deploys third parties for providing IT services, it shall enter into agreements with them or ensure otherwise that the safety regulations and requirements described in this paragraph are complied with.
The contractor is obligated to comply with the statutory provisions relating to data protection. In particular, the contractor shall ensure that its employees are obligated to comply with data secrecy pursuant to Section 5 of the German Federal Data Protection Act and/or the corresponding obligations under the General Data Protection Regulation (GDPR). Where necessary against the background of the agreed IT services, the parties shall agree upon a commissioned data processing contract in accordance with Section 11 of the German Federal Data Protection Act (BDSG) or Article 28 of the General Data Protection Regulation (GDPR).
IT resources provided by us may be used by the contractor and its employees and/or subcontractors exclusively for performing the contractual services. Passwords may not be stored or distributed; they must be changed at least every 90 days.
We reserve all rights, in particular rights of ownership and copyrights, to technical requirement profiles, illustrations, drawings, calculations, samples and other documents provided by us to the contractor; they may not be disclosed to third parties without our express written
consent. Such documents and information are to be used exclusively for providing the IT services and must be returned to us without being requested upon completion of the IT services.
IV. PROVISIONS RELATING TO INDIVIDUAL IT SERVICES
If the IT services concern the creation of a result (e.g. software development or adaptation), the services shall be performed on the basis of a contract for work and services and one of the contractor’s main performance obligations shall be to provide clear technical documentation and to inform us in sufficient detail, upon request, about the status of the contractual services. Software must always be delivered to us with user documentation and – unless it is standard software – including source code and programming documentation. The transfer of rights to the software and the granting of rights of use are governed by clause XIII. of these GTC.
At our request, the contractor shall offer us support services (including support and maintenance/updates of software and hardware) and, if applicable, hosting provider services under normal market conditions. Details shall be provided in the respective purchase order, where applicable, in conjunction with a separate agreement that
may contain additional provisions regarding service levels, etc.
If implementation services with respect to software or IT systems or data migration are also owed by the principal, the existing data of Audi Planung or of the third parties named by Audi Planung shall be determined, modified for the new structures and incorporated into the new IT systems within the framework of the implementation and data migration. The contractor shall ensure that no changes are made to the content of the data and that all data is migrated correctly and in full.
If the parties agree that the contractor is to provide training for employees of Audi Planung or for employees of third parties, details shall be provided in the respective purchase order.
V. PROJECT MANAGER
At the latest at the time when the IT services by the contractor commence, each party shall appoint a person in charge who shall act as the contact person for the respective other party in connection with the IT services, especially for clarifying any questions. If the respective contact person is not authorised to make statements that are required in connection with the IT services, they shall immediately inform the individuals or committees at Audi Planung and/or the contractor that are authorised to do so and bring about a decision.
VI. OPERATING RESOURCES / CONTRACTOR’S EMPLOYEES / SUBCONTRACTORS
Unless otherwise agreed, the contractor itself is responsible for providing all operating resources that it requires for providing the IT services (i.e. all IT equipment, systems, machines and other devices that the contractor requires for service performance), in particular for the provision and maintenance of its operating resources.
If required and possible, separate agreements shall be concluded with respect to chargeable provisions, e.g. for premises that are provided to the contractor by Audi Planung. The same applies to operating resources from Audi Planung or its principals, e.g. laptops.
The contractor may only deploy subcontractors (including so-called freelance employees) for the service performance upon prior written consent by Audi Planung. Audi Planung is entitled to oppose any further deployment of subcontractors for good cause (e.g. in the event that the subcontractor proves unreliable in performing the services). Subcontractors deployed by the contractor are working as its auxiliary persons in performing the services owed under this agreement. When subcontracting, the contractor must ensure that all important contractual obligations imposed on the contractor are equally imposed on the subcontractor. Deploying subcontractors does not release the contractor from its sole obligation to provide the IT services to the full extent.
Individuals deployed by the contractor for performing the services do not enter into a working relationship with us and are not subject to our professional or disciplinary authority. This applies in particular if and to the extent that in individual cases, persons employed by the contractor perform services on our premises. Individuals deployed by the contractor for performing the services are solely subject to the contractor’s authority. The provision in this clause V.4., however, especially does not apply to our right to issue orders by security agencies within the scope of occupational safety to prevent accidents, and especially not to the right to issue performance and/or plant-related instructions as specified in these GTC to the contractor.
The contractor commits to ensuring that its employees or employees of its subcontractors who are deployed in fulfilling the IT services can be visually identified as third-party employees and that any uninvolved third party could recognise them as such without doubt at any time. ID must be worn visibly.
VII. TIME OF PERFORMANCE, DELAY, PLACE OF FULFILMENT AND TRANSFER OF RISK
The performance and delivery time that has been agreed upon is binding (including any agreed upon intermediate deadlines). The contractor is obligated to immediately inform us in writing if it is likely that it cannot meet agreed upon performance or delivery times, regardless of the reason. The contractor shall explain the reasons that caused the delay and planned remedial measures to Audi Planung in writing. This does not justify the postponement of the performance or delivery time in any way.
If the contractor does not provide its IT services or fails to do so within the agreed upon performance time or if the contractor is in default, our rights – especially with respect to withdrawal and compensation – are determined by applicable statutory provisions.
Unless the parties have expressly agreed otherwise, in the event that the contractor exceeds delivery and/or performance times for reasons that are its responsibility, and in the case of default, a contractual penalty in the amount of 0.25% of the corresponding agreed upon net compensation per business day of exceeding deadlines, however in total 5% max. of the agreed upon net compensation shall be payable, after a prior written enforcement notice. The contractual penalty will be credited against claims for compensation due to delay. The contractor is free to prove to us that less damage has occurred. The right to assert further damages shall remain unaffected. If we accept a delayed service, we shall assert the contractual penalty at the latest at the time of final payment.
At the choice of Audi Planung, the place of fulfilment is Gaimersheim, Neckarsulm, Augsburg or Fulda. If the place of fulfilment has not been determined separately, the place of business of Audi Planung shall apply.
The risk of coincidental destruction or coincidental deterioration shall transfer only when the services are delivered to and/or accepted at the destination specified by Audi Planung. In the case of partial performance, unless agreed otherwise in individual cases, this shall apply only once the service has been performed to the full extent.
VIII. CHANGES
During the performance of IT services, the contractor shall allow for change requests by Audi Planung, especially with respect to expanding, restricting, modifying or terminating IT services. In this respect, Audi Planung can request changes to the agreed upon services in regard to time and content in writing at any time. In the event of a change request by Audi Planung, the contractor shall notify Audi Planung within ten (10) business days in writing whether the change is possible and which consequences it will have on the contract performance, especially deadlines, time and effort, compensation and participation.
Changes to the services under this contract that the contractor requires in order to achieve the respective agreed upon specifications shall never result in any price or deadline changes.
During the review of the change request, the service performance shall be continued in accordance with the existing contract. Service performance shall only be interrupted in whole or in part upon written instruction by Audi Planung; deadlines will then be extended by the duration of the interruption.
If the review of the change request requires substantial time and effort, the contractor may charge for the review costs separately if it has notified Audi Planung in writing of this and the extent of the review costs immediately after receipt of the change request and Audi Planung still requests this review in view of this notification and confirms this to the contractor in writing.
Audi Planung must inform the contractor in writing within a reasonable time period after receipt of the review result whether the change request is upheld. The corresponding modification agreements must be in writing.
If no agreement can be reached with respect to a change request, both parties must inform each project manager or contact person about the reason, content and consequences of the requested change as well as the reasons for not reaching an agreement. The respective project manager or contact person must immediately reach a decision
or bring about a decision by the authorised individuals or committees of the respective party.
IX. COMPENSATION AND TERMS OF PAYMENT
The compensation as specified in each respective agreement is binding. Compensation is always the net compensation plus the respective statutory value added tax.
Services are considered fully compensated with the compensation as specified in each respective agreement. Travel costs and accommodation shall only be reimbursed if this is expressly provided for in the respective agreement.
If compensation by expenditure of time has been agreed upon in the agreement, the contractor shall provide its performance records with the corresponding time registration records. The contractor shall provide us with the time registration records on a weekly basis. The principal is entitled to check that times have been properly recorded in the time registration records. For this purpose, the contractor shall provide us with comprehensive information and access to relevant documents and records. The contractor shall furthermore allow us to carry out corresponding checks in the contractor’s premises during its regular business hours or have them carried out by third parties bound to confidentiality. Accepting the time registration records without reservations does not constitute any approval by us, especially not acceptance of IT services as defined by clause X.
The compensation shall be paid no later than 30 days after receipt of an auditable invoice from the contractor in accordance with tax law requirements to the relevant point of receipt specified in the agreement or otherwise specified by us. However, a due date is only applicable if the IT services have been provided by the contractor to the full extent and accepted by us or if they have been completely handed over to us.
The interest payable on arrears is 5 percentage points above the prime rate per year. In the event of arrears by us, the statutory provisions shall apply, in deviation of which a written reminder (text form is not sufficient) by the contractor is required in any case.
We are entitled to rights of set-off and retention as well as objection to lack of performance of the contract to the statutory extent. In particular, we are entitled to retain due payments as long as we are still entitled to demands from incomplete or deficient services against the contractor. The contractor may declare a right of retention or right to refuse performance or set off only if the counterclaim has been determined as being legally binding or is undisputed.
X. ACCEPTANCE/HANDOVER
As soon as the contractor has completed the services owed, it will inform Audi Planung accordingly. If the contractual services are services under a contract for work and services and/or acceptance of the contractual services has been agreed upon, acceptance shall take place in accordance with the following provisions.
Unless otherwise agreed, the contractor shall check itself prior to handover to Audi Planung if the IT services correspond to the contractual requirements. Audi Planung shall check the performed IT services within a reasonable time period after notification of completion by the contractor. This check does not represent a productive use of the IT services. If no deficiencies exist, we declare acceptance. Any deficiencies shall be recorded and immediately corrected by the contractor. After the deficiencies have been corrected, the services shall again be handed over to us for acceptance. Unless otherwise agreed, we are not obligated to accept partial services. Accepting partial services does not restrict us in asserting deficiencies in previously accepted partial services during the final inspection if those deficiencies only become obvious in interaction with partial services.
If the contractual services are services under a purchase contract and/or a handover has been agreed upon, the handover shall take place in accordance with the following provisions. The contractor shall give written notice of the handover of the contractual services at least ten (10) business days beforehand and shall agree upon the place and time of handover with us. At our request, the contractor shall perform a functional test on the contractual services under (simulated) operating conditions in our presence and demonstrate that the contractual services comply with the specifications set out in the purchase order (acceptance test). If there are no deficiencies, or only insignificant deficiencies that do not significantly interfere with the intended use, we confirm the handover (the insignificant deficiencies must be corrected immediately afterwards in consultation with us). The contractor shall immediately correct any deficiencies that prevent confirmation of handover and resubmit the contractual services concerned for handover.
If, according to the provisions of these GTC, the source code is not part of the IT services, the contractor shall, if the contractual services are (also) represented in data records, allow Audi Planung to view the code of the IT services provided, at least to the extent that this is necessary for a proper review of the performance of services in accordance with the agreement.
XI. DEFICIENCIES, NOTICES OF DEFECTS AND LIMITATION
Unless otherwise defined in these GTC, statutory provisions apply to our rights regarding defects as to quality and title and other violations of duty by the contractor. In the case of a defect as to quality or title pursuant to the statutory provisions, we are in particular entitled to decrease the compensation or to withdraw from the contract. In addition, we are entitled to compensation for damages and expenditures in accordance with the statutory provisions.
In particular, the contractor is liable that IT services are in the agreed upon condition at the time of acceptance or rather transfer of risk to us. In any case, the descriptions and specifications that (especially by description or reference in our purchase order) are part of the respective contract or have been included in the contract similarly to these GTC shall also apply as an agreement as to the condition. In this context, it does not make any difference whether the product description originated from us, the contractor or a third party.
We are fully entitled to claims for defect even if the deficiency was not known to us at the time of contract conclusion due to gross negligence.
For the commercial obligation to inspect and give notice of defects, if applicable, the statutory provisions (especially Sections 377, 381 Para 2 of the German Commercial Code (HGB)) shall apply provided that: Our obligation to inspect is limited to deficiencies that become apparent during our receiving inspection upon visual check, including delivery documents and our quality control using a sampling procedure (e.g. damages from transport, incorrect and short deliveries). The obligation to inspect does not apply if the acceptance procedure is applicable. Apart from that, it depends to which extent an inspection taking into account the circumstances of an individual case is feasible in accordance with proper business routine. Our obligation to give notice of defects that are detected at a later point in time remains unaffected.
The costs that were incurred for the purposes of review and subsequent improvement by the contractor (including removal and installation costs) shall be borne by the contractor even if it turns out that there was actually no deficiency. Our liability for damages remains unchanged in the event of an unjustified request for damage correction; in this respect, however, we are only liable if we have recognised or grossly negligently did not recognise that there has been no deficiency.
If the contractor fails to fulfil its obligation of subsequent performance – at our choice by correcting the deficiency (subsequent improvement) or, if applicable, by providing a delivery free of defects (replacement delivery) – within a reasonable time period specified by us or if the subsequent improvement fails, we are allowed to correct the deficiency ourselves and request compensation from the contractor for the expenses required for this purpose, or request a corresponding advance payment. Further claims for compensation shall remain unaffected by this.
If the subsequent performance by the contractor fails or is unreasonable for us (e.g. due to specific urgency, risk to operational safety or impending occurrence of disproportionate damages), setting a deadline is not required; we shall inform the contractor immediately of such circumstances, if possible beforehand.
The period of limitation for our claims for defects (warranty period) is three (3) years in the case of defects as to material and title. If a longer period of limitation is provided for by law, the longer period of limitation shall apply instead. The period of limitation shall commence upon acceptance in the case of contractual services requiring acceptance, upon confirmation of handover by us in the case of contractual services requiring handover, and otherwise in accordance with the statutory provisions. This also applies to software parts that are provided to us within the scope of software maintenance. The statutory limitation periods shall apply to liability claims and other claims.
XII. LIABILITY
The contractor’s liability is based on statutory regulations.
We shall be liable for compensation – for any legal ground – in the case of (i) intent and (ii) gross negligence, (iii) if we have fraudulently concealed a defect of a provision service or (iv) have given a guarantee for the condition and (v) for claims under the Product Liability Act. In the case of ordinary negligence, we shall be responsible only (i) for damages from injury to life, body or health and (ii) for damages resulting from a violation of a material contractual obligation (an obligation, the fulfilment of which allows proper contract performance in the first place and compliance with which the contractor normally relies on and may rely on); in this case, however, our liability is limited to the foreseeable typical damage. Apart from that, our liability, regardless of the legal ground, is excluded. The aforementioned liability limitations shall also apply to our employees and auxiliary persons as well as to vicarious agents and subcontractors who are deployed in accordance with the contract.
XIII. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHTS
Audi Planung is exclusively entitled to the industrial property rights and copyrights and the know-how that were produced by the contractor during the performance of the IT services during the term of the contract and shall be transferred to Audi Planung to the full extent in accordance with the below provisions. This applies to all work results that were created in connection with the IT services, especially products, drawings, data, inventions, know-how, hardware and software (including the source and object codes with comments) and all intermediate results that were created during this process and any auxiliary means, documentation (including installation, utilisation and operating manuals and documentation for modifications, maintenance or further development) as well as all other contents (e.g. descriptions of work, specifications, studies, concepts, reports, presentations, advisory documents, charts, diagrams, images, etc.), access numbers, domains, sub-domains, telephone numbers and other code numbers and characters or other performance results (hereinafter “Results”).
For any results that are created within the scope of the IT services that are protected by copyrights, the contractor hereby already grants Audi Planung with their creation, at the latest at the time of their transfer, the exclusive, transferable right to use that can be sub-licensed, without any limits with respect to time or space or content. This right to use especially includes copying, distribution, communication to the public and providing accessibility to the public of the corresponding results in all known or unknown types of use, including the right to edit and further develop and the use of results that are created in this connection to the aforementioned extent. Unless otherwise agreed, this granting of rights includes the source code and documentation of any software that may be created.
The contractor commits to enter into valid and sufficient agreements with its employees (including representatives, consultants, freelancers and subcontractors) or to take all required measures that ensure the transfer (or all-inclusive granting of the right to use if a transfer is not possible in accordance with the respective relevant legal framework) of works, inventions and know-how and other industrial property rights created by these individuals to Audi Planung. The contractor shall especially make unlimited use of the inventions – which are patentable and/or suited for a registered design – that were created by its employees.
If the parties reach a corresponding agreement, and if this seems reasonable in the opinion of Audi Planung, the contractor may receive a non-exclusive, non-transferable right to use that cannot be sub-licensed for individual IT services.
If required for the use of results created for us or delivered to us by the contractor, the contractor hereby grants us for works that were already developed or used prior to the commencement of the contract, for other copyrights or other unprotected knowledge (know-how) of the contractor (hereinafter “intellectual
property of the contractor”) a non-exclusive, irrevocable, permanent, spatially unlimited, transferable, compensated right to use this intellectual property of the contractor (this includes in particular the right to copy, edit and change the intellectual property of the
contractor by us or third parties).
We hereby accept the aforementioned granting or transfer of rights. This is considered fully settled with the compensation. The contractor shall ensure that all employee inventions or compensation for co-owners resulting from performing the IT services are transferred to us or that the corresponding rights are granted to us without additional compensation by us.
The contractor transfers full ownership of the results (as defined above) to us. We hereby accept these transfers.
We alone are authorised to apply for property rights for the results transferred pursuant to clauses 1 through 7. If we do not wish to apply for property rights in individual cases, upon the contractor’s request, we shall inform the contractor in writing accordingly. The contractor is then entitled to apply for property rights at its own costs. Regarding these property rights, we are entitled to a non-exclusive, free, transferable right to use that is unlimited with respect to time or space or content.
The contractor shall document the results in appropriate format. This documentation shall be created by the contractor, or the contractor shall have it created, in German and provided to Audi Planung. In addition, the contractor shall provide Audi Planung upon request with the necessary information about performance of the IT services and provide Audi Planung with an insight into respectively available results.
If any contract services violate the rights of third parties (including industrial property rights and copyrights), the contractor shall do everything within the scope of subsequent performance that is reasonable to produce the conditions pursuant to the contract by means of an acquisition of rights. If the contractor is unable to acquire the rights, it shall provide us with contractual services and delivery items (especially documentation) that are equal for us and that do not violate the rights of third parties (workaround). The workaround is only considered equal if it does not restrict or only insignificantly restricts the agreed upon usability of the contractual services and delivery items by us. Unless the contractor is not responsible for the violation of third-party rights, the contractor shall bear the costs for the workaround plus any required adjustment to the environment of the contractual services, if applicable.
The contractor shall indemnify us in an unlimited amount from any third-party claims and associated costs resulting from the violation of third-party rights. This shall not apply if the violation of third-party rights is solely our responsibility, especially if the violation of rights is based exclusively on the use of contractual services by us that was unauthorised according to the contractor’s terms of use (e.g. unauthorised connection of software with third-party software).
In the event that claims are asserted against us due to the violation of third-party rights by the contractual services, the contractor is obligated to independently legally defend us at its own costs. We shall support the contractor in defending asserted claims by third parties, if required, to a reasonable extent and at the contractor’s costs. We are entitled to undertake the legal defence ourselves; however, we shall coordinate this with the contractor. Even in this case, the contractor is obligated to bear the required costs.
The contractor and Audi Planung agree that open source software (as defined by the currently valid definition of the Open Source Foundation) may only be used if the contractor has notified Audi Planung of the use of the open source software before the start of the performance of IT services, the contractor independently creates all necessary conditions for the licence-compliant use of the open source software by Audi Planung, the design does not contain any use that violates the licence and Audi Planung has given its written consent to the use of the open source software. The contractor warrants that Audi Planung shall not be obliged to release source code that is licensed by Audi Planung or Audi Group companies or that contains privileged knowledge of Audi Planung or Audi Group companies. The contractor shall indemnify us in an unlimited amount from any third-party claims and associated costs resulting from the use of open source software by the contractor without our prior consent unless the contractor is not responsible for its use.
XIV. NON-DISCLOSURE
The contractor shall keep the conclusion, content and performance of IT services as well as all activities in connection with the performance of the IT services and these GTC confidential.
The contractor commits to keep all documents, specifications, data, information and knowledge (hereinafter referred to as “Information”) of Audi Planung that has been made accessible or has been disclosed to it within the framework of a purchase order strictly confidential and not to make it accessible to third parties directly or indirectly, neither in whole nor in part, and to exclusively use it for the purposes of performing the IT services.
The contractor is only permitted to use the aforementioned information for its own purposes or for third parties if Audi Planung has expressly declared its corresponding consent in writing beforehand.
The contractor shall ensure that no third party has access to the premises where the work is performed. Third parties as defined in the first sentence of these provisions do not include the contractor’s employees if they are required for performing the corresponding purchase orders. The contractor shall ensure that all third parties (including the contractor’s employees) are bound by corresponding confidentiality obligations (as regulated in these GTC).
Third parties as defined by this clause XIV. do not include affiliated companies of VW AG as defined by Sections 15 et seq. of the German Stock Companies Act (AktG).
If the contractor has signed a confidentiality agreement of Audi Planung, the provisions included therein shall take precedence over this clause
XIV. XV. MISCELLANEOUS
Should any provision of these GTC or a contract be or become legally ineffective or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected. In this case, each party is entitled to demand that a legally effective, enforceable provision that comes as close as possible to the intended purpose or the ineffective or unenforceable provision is agreed upon. The same applies in the event of any omissions.
Ingolstadt, Germany, is agreed upon as the sole place of jurisdiction for any dispute that may arise from or in connection with the GTC.
The laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG), shall apply exclusively to these GTC.
Subsidiary agreements and amendments and/or supplements to these GTC shall only be effective if agreed upon at or after contract conclusion in writing. This also applies to changes of this clause XV. 4.
If these GTC refer to written form, text form (especially email) is sufficient unless otherwise specified in the corresponding provision.
The “Volkswagen Group requirements regarding sustainability in its relationships with business partners (Code of Conduct for Business Partners)” define the expectations for involved business partners’ conduct with respect to sustainability within the scope of their company activities. Audi Planung requires the same from its business partners. Upon contract conclusion, the “Volkswagen Group requirements regarding sustainability in its relationships with business partners (Code of Conduct for Business Partners)” become part of the contract in their valid latest version. The contractor commits to comply with these requirements. The “Volkswagen Group requirements regarding sustainability in its relationships with business partners (Code of Conduct for Business Partners)” can be obtained from www.vwgroupsupply.com if they were not included with the request for quotation or purchase order.