Tel: +49 (0)40 88 18 76 33
Terms and conditions
The following provisions are an integral part of all the services of fokus:personal® (hereinafter “fokus:personal”), excluding any terms and conditions of the contractual partner(s) together with the other contractual provisions.
(1) fokus:personal® is bound by an offer for one month from the date of the offer, unless otherwise stated in the offer documents.
(2) The information contained in the written offer documents from fokus:personal® is the sole basis for the services provided by fokus:personal®. The client must examine the offer documents carefully before placing an order.
(3) fokus:personal® reserves the right to replace specifically named employees with other employees with comparable qualifications and experience following prior notification to the client.
(4) Induction and training of the client’s staff will take place, by arrangement, for a separate fee.
(5) fokus:personal® is entitled upon notification of the client to call in third parties as vicarious agents.
(1) The services provided as part of the project will be billed monthly.
(2) If the remuneration specified in the offer is based on provided “man days”, "person days", "service days" or similar, these correspond to eight hours respectively.
(3) Unless otherwise agreed, fokus: personal® will bill services on the basis of the applicable fokus: personal® daily or hourly rates (hereinafter referred to as billing rates).
(4) fokus:personal® reserves the right to change the billing rates during a project taking due account of the general cost development. In the case of changes of more than 10% within a year, the client is entitled to terminate the contract.
(5) Travel expenses, expenses and other ancillary costs, and expenses incurred by the provision of the contractually agreed services by fokus: personal® will be additionally invoiced.
(6) The prices are in net euros plus applicable VAT without deductions, unless otherwise agreed.
(7) Invoices are due for payment 14 days after receipt of the invoice.
(8) In case of doubt, invoices will be deemed to have been received three working days after the invoice date.
(9) In the event of default of payment by the client and the fruitless expiry of a reasonable period of grace, fokus:personal® is entitled to terminate the contract with immediate effect by giving notice and, at its own discretion, to demand a lump sum equal to 40% of the outstanding part of the agreed total remuneration, damages instead of performance, or compensation for its futile expenses in accordance with section 284 of the German Civil Code (BGB). If time-based remuneration has been agreed between the parties, the sum of the outstanding expenditure in person-days originally planned multiplied by the daily rate per person-day is the basis for calculating the lump-sum compensation. If fokus: personal® claims a lump-sum compensation, the client reserves the right to prove that no damage or lesser damage has occurred.
Each of the parties will designate a responsible project leader.
(1) The provision of the agreed services by fokus:personal® requires the close collaboration of the contracting parties and the cooperation of the client. In particular, the client will provide the premises, technical environments, persons providing information and documents required for the services provided by fokus:personal® at no cost to fokus:personal®. In addition, the client will immediately make the required decisions about project implementation and project content and notify fokus:personal®, and immediately review suggestions for changes made by fokus:personal®.
(2) The client acknowledges that the fulfillment of its obligation to cooperate is a fundamental prerequisite for the provision of services by fokus:personal® and is a significant contractual obligation on the part of the client.
(3) In order to fulfil its obligation to cooperate, the client will deploy suitably qualified staff. The client's employees will point out to fokus:personal®, in particular without being asked, typical industry or company-specific requirements and procedures, insofar as these are not listed in the offer documents. The client must provide all technical or other documents and information necessary for the successful implementation of the project without being requested to do so, and if necessary in the form specified by fokus:personal®.
(4) The client will inform fokus:personal® on a continuous basis of any circumstances in the client’s sphere that could have an impact on the contractual obligations of fokus:personal®, in particular the works, schedules, prices and the further course of the project. The client is also required to obtain all necessary regulatory approvals for the implementation of the project.
(5) The client will ensure that the demands it places on the work results meet all legal restrictions and requirements. The client will inform fokus:personal® in writing immediately and fully about all requirements resulting from the legal framework.
(6) If the client does not fulfil its duty to cooperate properly or not in a timely manner, the contractually agreed execution deadlines will be extended in accordance with the delay in fulfilment. If an actual lesser or greater impact on the execution deadlines has been substantiated or if something different has been agreed, the extension of the execution deadlines will be based on the actual impact. fokus:personal® is entitled to charge at the agreed rates for additional expenses caused by insufficient cooperation on the part of the client, in particular for extended provision of own personnel or own material.
(7) Sections 642, 643, 645 of the German Civil Code (BGB) remain unaffected. In the event of early termination of the contract in accordance with section 643 sentence 2 of the German Civil Code (BGB), fokus:personal® is entitled to demand part of the remuneration corresponding to the work performed and compensation for expenses not included in the remuneration.
(1) Insofar as offer documents contain gaps or ambiguities, fokus:personal® is entitled to substantiate them appropriately at its reasonable discretion.
(2) If additional expenses arise due to gaps in the documents provided by the client, fokus:personal® is entitled to charge for the additional costs incurred at the agreed rates. This also applies to additional expenses due to contradictory or incorrect information provided by the client, its employees or other vicarious agents.
(3) fokus:personal® reserves the right to decide whether to accept or reject any requests for alterations or additions from the client regarding the existing contract. If fokus:personal® carries out requests for alterations, the agreed execution and acceptance deadlines will become invalid unless they have been confirmed or newly defined by fokus:personal®.
(4) fokus:personal® reserves the right to charge the client at the agreed rates for the cost of reviewing requests for alterations and additions, and the preparation of cost estimates.
(5) fokus:personal® will continue the work on the basis of the contract concluded until written agreement on any changes/additions.
(1) fokus:personal® will grant the client a non-exclusive right to use the work created specifically for the client (hereinafter "work results") as soon as the payment claims of fokus:personal® against the client from the project contract have been fully met. fokus:personal® will allow the client to use the work results to the extent necessary to fulfill the contractually agreed purpose.
(2) ) The client is entitled to use the work in its business operations for its own internal business purposes.
(3) The client will grant fokus:personal® the non-exclusive right to use existing intellectual property free of charge insofar as this is necessary for the fulfilment of the task of fokus:personal® in the project. This includes in particular the right to use the client‘s existing IT systems and application programmes.
(4) If in the provision of services by fokus:personal®, work results arise which are eligible for patent or utility model protection, fokus:personal® has the sole right to undertake corresponding applications in its own name. In this case, the client will receive a royalty-free license for use to the same extent necessary for the contractual use of the work results due from fokus:personal®.
(1) ) fokus:personal® and the client are obliged to keep confidential any operating and business secrets and other confidential and sensitive information and documents of the other party obtained in connection with the fulfilment of the assignment and which are marked as “confidential” or similar or of obvious confidential nature. The parties will not use such information and documents for their own or third-party purposes, but only for the purpose of performing the project. They will also impose a corresponding obligation on employees and third parties employed by them for the project.
(2) The obligation to maintain confidentiality does not apply to information that
- is or has been general knowledge, or
- has been developed independently and without the use of confidential information by another party, or
- has been acquired from third parties who were not obliged to maintain confidentiality, or
- were already in the possession of the party without an obligation to maintain confidentiality.
Any further legal obligations to maintain confidentiality remain unaffected.
(3) This confidentiality obligation will remain valid even after termination of the contract.
(4) The parties will observe the relevant regulations on data protection and professional and banking secrecy and only deploy appropriately obliged employees to fulfil their obligations.
(5) As part of the contractual project, fokus:personal will collect and process personal data concerning the client, its employees, managing directors and other executives. This data will be used for purposes relating to the contract and the project.
(1) fokus:personal® is only liable for gross negligence or damage intentionally caused by fokus:personal®, or by legal representatives or vicarious agents of fokus:personal®.
(2) fokus:personal® is fully liable for damages resulting from injury to life, limb and health that are caused by a breach of duty on the part of fokus:personal®, its legal representatives or its vicarious agents.
(3) fokus:personal® is only liable for the amount of typically foreseeable damages.
(4) Liability for indirect damages, such as loss of profits, loss of savings, and loss of data is excluded.
(5) ) Insofar as fokus:personal® bears liability, this, except in the case of intent or injury to life, limb and health, is limited to the amount of remuneration received by fokus:personal® within the scope of the relevant project.
(6) The above limitations of liability also apply to the benefit of employees of fokus:personal® and in the case of pre-contractual or tortious liability.
(7) If the client intervenes in the delivered work results without the written consent of fokus:personal®, the liability of fokus:personal® for any resulting damage will lapse. Claims for damages on the part of fokus:personal® will remain reserved.
(8) The burden of proof that damage is not based on intervention by the client in the delivered work results will be borne by the client.
(9) The obligation of the client to avoid damage and mitigation, in particular in the case of data or file losses will remain unaffected. The loss of data is not eligible for compensation if daily backup copies of this data were not regularly created on separate media at least once a day.
(10) All claims by the client against fokus:personal® - with the exception of claims for injury to life, limb and health, and intentional or grossly negligent breaches of duty – will become time-barred within one year after the claim has arisen and the client has learned of or should, without gross negligence have learned of the claim against circumstances caused by fokus:personal.
(1) fokus:personal® will guarantee that the rights of third parties are not infringed by the provided work results when used in accordance with the contract. fokus:personal® will indemnify the client against third party claims in connection with the aforementioned guarantee. The prerequisite for an exemption is that the client informs fokus:personal® of such claims of third party rights without delay and leaves the legal defence or settlement negotiations to fokus:personal®.
(2) Rights in this sense are only those that third parties are entitled to in the Federal Republic of Germany.
(3) fokus:personal® is entitled to make necessary changes to the results of the work at its own expense, even as regards accepted and paid work results, due to proprietary rights claims made by third parties.
(4) Furthermore, fokus:personal® reserves the right in individual cases to terminate the client’s usage rights with regard to infringing work results and to reimburse the client for the unamortised part of the remuneration paid, calculated on the basis of a linear depreciation of the software over the normal useful life.
(5) Without prejudice to section 11 (1) of these terms and conditions, the client will exempt fokus:personal® from other claims by third parties due to non-contractual use of the work results by the client.
(6) The obligations of fokus:personal® end upon expiration of the limitation period agreed in section 14 (8) of these conditions.
(1) Service contracts can be terminated in written form to the end of the month by either party at any time subject to a notice period of two weeks. The rights under Section 626 of the German Civil Code (BGB) remain unaffected.
(2) In the event of the termination of a service contract, the expenses saved according to section 649 sentence 2 of the German Civil Code (BGB) will be fixed at 60% of the share of the total remuneration originally planned for the remaining service at the time of the premature termination of the contract. The client reserves the right to receive proof of any additional expenses saved.
If the results of the work to be produced by fokus:personal® are subject to an acceptance in accordance with section 640 of the German Civil Code (BGB), the following will apply:
(1) If the services to be provided by fokus:personal® are software components, the client will provide test data in the agreed quantity and in machine-readable form, and the expected test results in good time prior to the start of the tests and functional examinations in the formats specified by fokus:personal®. fokus:personal® is entitled to take part in the tests and functional examinations.
(2) If a work result has passed the acceptance test, the client is required to submit a written declaration of acceptance within ten (10) working days after completion of the acceptance test
(3) The acceptance is deemed to be granted if the client
- 1. has not conclusively asserted the reasons for a refusal of acceptance in writing within ten (10)working days after expiry of the period agreed for the acceptance, or
- 2. has productively used a result of the work over a period of more than ten (10) working days.
At the beginning of the period, fokus:personal® will explicitly inform the client about the intended consequence of this behaviour.
(4) If, within the defined time period, the client submits a list of deficiencies that prevent the acceptance, fokus:personal® will rectify these deficiencies. The acceptance will be deemed to have been granted as soon as fokus:personal® has remedied the deficiencies claimed or has proven that they are not deficiencies.
(5) fokus:personal® is entitled to demand the acceptance of definable part services and intermediate results. If, among other things, the preparation of a service description, a professional rough or detailed specification or a specification of duties has been agreed upon, fokus:personal® may demand the acceptance of these intermediate results by the client. fokus:personal® may also demand the verification and confirmation of services that do not represent work performance. The most recently accepted document will replace the previously agreed performance specifications.
If the client is entitled to claims for deficiencies in accordance with sections 437, 634 or 651 of the German Civil Code (BGB), the following will apply:
(1) The client will inform fokus:personal® in writing of any deficiencies immediately after they have been discovered and will describe them specifically.
(2) fokus:personal® reserves the right to supplementary performance for all work results created for the client.
(3) Insignificant deficiencies will be recorded by fokus:personal® during the warranty period and will be eliminated at the end of this period in one (1) operation.
(4) The client will provide all necessary documents and information, IT facilities, rooms and telecommunication facilities to carry out the fault analysis and troubleshooting. fokus:personal® is entitled to demand that the client's staff install all programme parts with corrections (“bug fixes”) that are transmitted. The client’s staff will provide fokus:personal® with comprehensive information - if necessary orally - for the purpose of detecting deficiencies.
(5) The number of attempts required for a definitive failure of supplementary performance depends on the complexity of the work results to be produced; this will in no case already be assumed in the event of two unsuccessful attempts at supplementary performance.
(6) The client is not permitted to take measures involving third parties to eliminate deficiencies.
(7) The above claims by the client for deficiencies will become time-barred within one year, unless fokus:personal® has fraudulently concealed the deficiency. The period of limitation begins for a plant whose success lies in the production, maintenance or change of an item or the provision of planning or monitoring services, with the acceptance or otherwise at the end of the year in which the claim arose and the client learned of or should, without gross negligence have learned of the circumstances giving rise to the claim and the identity of the liable party.
(1) Amendments and additions to and collateral agreements relating to these conditions must be made in writing in order to be valid. This also applies to any waiver of the requirement for written form.
(2) If individual provisions of these terms and conditions are invalid or void, they must be replaced by provisions of the content to be agreed between the parties which come as close as possible to those intended by the invalid or void provisions.
(3) fokus:personal® is permitted to use the company and brand of the client as a reference for marketing purposes.
(4) The use of the name fokus:personal® by the client in public in connection with a project carried out by fokus:personal® requires the consent of fokus:personal®.
(5) The assignment of rights of the client from the contract is not permitted without the prior consent of fokus:personal®.
(6) Offsetting by the client is only possible with an undisputed or legally established counterclaim
(7) The legal relationship between the parties is governed exclusively by German law.
(8) fokus:personal® is entitled to retain one copy of the project documents for quality assurance and evidentiary purposes even after completion of the project.
(9) The exclusive place of jurisdiction is Hamburg.