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§ 1 Scope

(1) The following General Terms and Conditions (AGBs – Allgemeine Geschäftsbedingungen) shall be valid for all services offered by “openfellas UG”, hereinafter referred to as “openfellas”. This concerns the area of installation, introduction, support, consultation and adaptation of the “Odoo” ERP and CRM software, as well as sales of the Outlook Connector. These AGBs shall be an integral part of all contracts concluded with openfellas regarding services and supplies in these areas. Deviations from these conditions shall require the explicit written acceptance by openfellas. Conflicting general terms and conditions by the customer are explicitly objected to.

(2) Side arrangements shall only be valid in case of written confirmation. This shall also apply to the cancellation of this clause of written form. Email shall be considered a written form.

(3) If provisions in the offer contradict individual provisions of these AGBs, the provisions of the offer shall have priority. The validity of the AGBs shall otherwise remain unaffected thereby.

(4) For follow-up transactions with registered merchants and legal entities under public law, these General Terms and Conditions shall also apply if they are not, in every case, explicitly and repeatedly included in the contract conclusion. openfellas reserves the right to make changes to these AGBs. In this case, openfellas shall inform the customer about the change in the AGBs. If the customer does not oppose the change of the AGBs within a period of four weeks, the changes shall be considered accepted. openfellas shall respectively advise the customer of the possibility of opposing the AGBs and of the legal consequences if the changes to the AGBs are not opposed.

§ 2 Contract conclusion

The contract shall be reached with the written confirmation of the offer or, in the event of acquisition of the Outlook Connector, by downloading the installation file of the Outlook Connector.

§  3 Performance obligations

(1) The scope of services by openfellas shall result from the offer and the corresponding workshop records.

(2) In case of consent by both contracting parties, the services or sections of services included in the offer may be changed, supplemented or expanded at any time.

(3) As far as openfellas provides gratuitous services and performances (accommodation services), they may be discontinued at any time and without prior notice. This shall not result in any reimbursement claims or damage claims.

(4) openfellas shall be entitled to outsource (partial) services to expert third parties. Invoicing shall continue to be provided via openfellas.

(5) If the customer fails to provide a service to be provided by it or fails to provide it on-time or not completely (e.g. not on-time provision of a cooperation service) and if this impacts due dates and time periods, the stipulated due dates and time periods for services by openfellas shall be extended in accordance with the delay.

(6) If the implementation of the contractual performance by openfellas is delayed due to circumstances which the customer is solely or predominantly responsible for (e.g. the client fails to provide a cooperation service, fails to provide it for the stipulated point in time or not in the stipulated quality), openfellas shall be entitled to a reasonable increase in remuneration. The claim for the respective amount of this remuneration may be lodged at maximum with one man-day per scheduled person. However, openfellas shall be set off that which openfellas saves, acquires or could have acquired as a result of being released from the service during that period of time or by using its manpower otherwise.

§ 4 Subsequent change requests by the customer

(1) Subsequent changes of the service offer shall require the written form and the consent of openfellas.

For change requests or extensions of orders, openfellas shall prepare an offer upon the customer’s request; openfellas may charge compensation for this and suspend work on the project if the implementing workforce is required for the preparation of the offer or if the offer includes changes which concern the ongoing work. In case of the customer’s rejection of the offer, the original scope of service shall remain in effect. The time schedule shall be extended according to the inspection period.

(2) For all subsequently agreed upon services, invoicing shall be provided – unless otherwise agreed upon – on the basis of the hourly rates valid at the time of implementation, taking into account the necessary time expenditure.

(3) Changes of orders or extensions of orders result in a reasonable time delay. Possibly stipulated completion due dates shall be adjusted in accordance with the additional time expenditure.

§ 5 Duties and obligations of the customer

(1) When placing the order, the customer shall indicate to openfellas a contact person for project handling.

(2) The customer shall make available to openfellas the technical facilities required for the implementation of the work as well as any information and documents. The customer shall ensure that openfellas is granted unrestricted access to the technical facilities and premises required for the provision of services.

(3) The customer shall provide or acquire, on time, the technical facilities necessary for the provision of services; or the customer shall instruct openfellas to do this accordingly. This shall apply, in particular, to the required operating system, database, telecommunications and service programs (tools) in the respectively up-to-date or required version, as well as to other required software. The customer shall take care of the necessary use rights and corresponding access rights for the computer and server systems made available by it. The customer shall also be responsible for maintenance, especially the update of such software as provided by the customer.

(4) The implementation of external maintenance work on computer or server systems during the installation phase shall be coordinated with openfellas.

(5) openfellas shall be entitled to be named originator or author on duplications. The customer shall not remove or change any copyright notices as well as other characteristics to be used for program identification. If the customer culpably breaches the right to be named or if it removes corresponding copyright notices, the customer shall be obligated to pay openfellas a reasonable contract penalty. This shall not affect openfellas’ right to claim higher damages in case of a concrete calculation of the damage.

§ 6 Acceptance

(1) Following completion of a service section, openfellas may demand partial acceptance.

(2) Acceptance may not be denied due to insignificant defects. As far as individual defects are complained of, the customer shall record them in writing and report them immediately.

(3) For issuing the declaration of partial acceptance, openfellas may set a reasonable period of time following the expiration of which the service shall be considered accepted. A period of 7 working days shall be considered reasonable. If a period for acceptance set by openfellas expires unsuccessfully, acceptance shall be considered granted.

(4) openfellas shall be entitled to make further work dependent upon partial acceptance.

(5) Clause 6 shall not be applied to contractual purchase services.

§ 7 Remuneration; terms of payment

(1) Applicable shall be the remuneration specified between the contracting parties in the offer or in written additional agreements.

(2) Unless otherwise stipulated in writing, interim invoices shall be prepared for services which are calculated according to the expenditure of time.

(3) At the end of each service section, openfellas may provide invoices for payments on account.

(4) In case of the customer’s arrears of payment, openfellas shall be entitled to charge default interest in the statutory amount.

(5) In case of the customer’s arrears of payment, openfellas shall be entitled to refuse the provision of further services even from other contracts. The customer’s obligation for payment shall remain unaffected thereby. openfellas may terminate the contractual relationship without notice if the customer is in arrears of payment of a not inconsiderable part of an invoice for more than six months.

(6) The customer shall immediately notify openfellas if insolvency proceedings over its assets have been lodged or instituted or if it stops payments.

§ 8 Rights of use

(1) The Odoo ERP and CRM software is open source software. The use of Odoo as well as all parametrizations and programmings provided by openfellas in connection with the installation, adaptation and support of the Odoo software shall be subject to the conditions of GNU Affero General Public License v3.

(2) With the purchase of the Outlook Connector, openfellas shall grant to the customer a simple and temporally unlimited right of use. The customer shall not be entitled to edit the program or grant sublicenses. This shall not apply for such components of the program which are modifications of Odoo or which are based on Odoo (“modifications” or “work based on Odoo”). Applicable for them shall be the GNU Affero General Public License v3.

§ 9 Data security, data protection, secrecy, confidentiality

(1) Prior to the implementation of contractual services by openfellas, the customer shall perform a data backup. The customer shall be obligated to make a proper backup of its software and data at regular intervals. The customary protection shall currently be one day. Furthermore, the customer shall be obligated to regularly subject its data to antivirus scans.

(2) Unless explicitly otherwise  agreed upon in writing, the information submitted to openfellas shall not be considered confidential. Excepted shall be passwords and code words.

(4) The customer agrees to keep secret any and all information and documents which are considered confidential and accessible in connection with the contract conclusion and – unless necessary for realizing the contractual objective – to neither record same nor pass them on or exploit them. This shall also apply, in particular, to the ideas and concepts made known during the development stage / collaboration.

§ 10 Setoff, right of retention, delay in service, reservation of ownership

(1) The customer shall be entitled to claim a right of retention only for opposite claims under the same contractual relationship. The customer may only set off against claims by openfellas with uncontested, unappealable claims or those ready for a decision.

(2) As far as a customer is in default with its service obligations, openfellas may claim a right of retention until full payment.

(3) openfellas shall not be responsible for temporary failures of the offered services of openfellas or its suppliers or subcontractors – particularly for reasons of force majeure, including strike, lockout and administrative orders, the failure of communications networks and gateways of other providers, failures in the area of the monopoly services by Deutsche Post AG, Deutsche Telekom AG; and openfellas is entitled to postpone the service, if necessary, by the period of the delay, plus a reasonable start-up period.

(4) Temporary failures may also result due to technical changes in the facilities or systems of openfellas or due to other measures which are required for a proper or improved operation of the offered services (e.g. maintenance work, repairs, etc.). As far as openfellas is responsible for these failures, openfellas shall immediately make all reasonable efforts in order to eliminate such failures as soon as possible or to work towards their elimination.

(5) Until full payment of all present and future receivables by openfellas from contractual purchase and work services, openfellas shall reserve ownership in these services.

§ 11 Warranty

(1) openfellas shall take over the warranty for the contractually promised services, particularly for the installation and adaptation of the software according to the requirements listed in the workshop record. The warranty shall be excluded for faults or defects which have their root cause in the software of Odoo or other third parties. Possible warranty claims shall be addressed to the software manufacturer.

(2) For the order placement, openfellas shall always use software which is in accordance with the state of the art. openfellas shall be entitled to forego the respectively latest version of a third-party provider software if it cannot be ensured that it will be correspondingly fully compatible with other programs which are relevant for the commissioned area.

(3) For contractual purchase services, the prerequisite for any warranty rights by the customer shall be its proper fulfillment of all duties of inspection and notification of defects which are owed according to § 377 German Commercial Code (HGB). openfellas shall be notified in writing of warranty claims within the respectively reasonable period of notification and with an indication of the specific circumstances of the occurrence of the fault objected to, as well as its consequences after it had become known. The improvement action by openfellas may depend on the existence of the aforementioned prerequisites. At the discretion of openfellas, subsequent performance shall be effected either by reworking or substitute performance. The customer shall have a right of rescission or reduction only after a failure of subsequent performance.

(4) Warranty claims expire if the customer made changes in the installation or had third parties make them, without prior written consent [by openfellas]  – unless the customer proves that the defect is not attributed to these changes. If openfellas is not responsible for notified defects, the customer shall remunerate, according to the customary rates, the time expenditure and the costs incurred.

(5) The warranty obligation shall be 12 months as of the point in time of acceptance or partial acceptance – as far as contractual work services are owed; or as of the delivery – as far as contractual purchase services are owed.

§ 12 Liability

(1) openfellas shall have unlimited liability for intent and gross negligence. In case of a minor negligible breach of a main performance obligation or a secondary obligation whose breach jeopardizes the realization of the contractual objective or whose performance actually enables the proper execution of the contract at all and the compliance of which the customer was rightly able to rely on, the liability of openfellas shall be limited to damages which are contractually typical and foreseeable upon contract conclusion. openfellas shall not be liable in case of a minor negligible breach of secondary obligations which are not part of the essential secondary obligations.

(2) The aforementioned exclusions of liability shall not apply in case of fraudulently concealing any defects or in case of the acceptance of a quality guarantee, for the liability in case of claims based on the product liability law, as well as for damages from injury to life, limb or health. This shall not be connected with any change in the burden of proof to the detriment of the customer.

(3) Subject to Clause 12 (1), openfellas shall only be liable for the restoration of data as far as the customer regularly makes backup copies in a manner commensurate with the risks, keeps these copies at a safe location and has ensured that the data from these backup copies can be restored with reasonable expenditures. The customer shall here have the burden of proof. Beyond that, there shall be no further liability for the data loss. No liability shall be accepted for errors which occur upon the connection of third-party software and exclusively result from the area of third-party software.

(4) With the exception of claims for tort, the customer’s damage claims – for which liability is limited according to this Clause – shall become statute-barred within one year as of the beginning of the statutory period of limitations.

(5) As far as the liability of openfellas is excluded or limited, this shall also apply to the personal liability of its employees, workers and other staff and vicarious agents.

§ 13 Final provisions; miscellaneous

(1) The nullity or invalidity of individual provisions shall not affect the validity of the remaining provisions. In case of the invalidity of a provision, the parties shall be obligated to replace the deficient provision by a valid one whose economic and legal meaning comes closest to that of the deficient provision.

(2) The law of the Federal Republic of Germany shall apply for the contractual relations.

(3) Legal venue for any disputes under the contractual relationship between openfellas and the customer shall be the Regional Court I of Munich (LG München I) if the customer is a merchant, a legal entity under public law or a special fund under public law.

As of July 2015