General Terms & Conditions of scan.up AG

Subject matter and scope of application
The following General Terms and Conditions (GTC) shall apply to all test procedures sold, consulting contracts and other services (e.g. granting of scan licenses) of scan.up AG.
Unless otherwise agreed in an individual case, these GTC shall form part of every contract executed. They shall also apply to future business relations with the client without the need to expressly include them again.
Any derogating general terms and conditions of the client, as well as changes and supplements to these GTC, are only valid if they have been accepted by scan.up AG in writing. This also applies where we have expressly objected to the client’s terms and conditions and/or delivery terms.

II. Content of the order
With regard to the consulting contracts and other services, the services to be rendered, the process and the type of the test procedures, working documents and/or training content to be provided are set out in the written agreements of the contracting parties. scan.up AG may use the services of expert third parties to fulfill its obligations.

III. Copyrights and rights of use; ownership
All test procedures sold (regardless of whether they are provided to the client as an online version or on data storage media) and/or drafts, concepts, ideas, works, etc. produced by scan.up AG are works protected by copyright within the meaning of Section 2 of the German Copyright Act (UrhG), even if they are not used or processed beyond the purpose of the contract without the consent of scan.up AG. In the event of a transfer of rights, the scope of transfer in terms of region, time and content shall be exclusively governed by the contractual agreements or the purpose of the contract; Section 31 (5) UrhG shall apply mutatis mutandis. The rights shall only pass to the client when the entire order has been paid in full.
Ownership of scan.up AG’s work results shall not pass to the client until the order has been paid in full.
The client does not acquire ownership of the analysis routines/source codes and is not entitled to pass on related information to third parties.

IV. Exclusion of competition; confidentiality
scan.up AG undertakes to inform the client about possible conflicts of competition with other companies and, upon request, will grant exclusion of competition for product and service areas to be defined in detail in favor of scan.up AG.
scan.up AG undertakes to keep all confidential facts which have become known to it in the performance of the contract confidential.
The client must ensure that no action is taken which could jeopardize the independence of the employees of scan.up AG. The client therefore undertakes not to hire or otherwise employ any employees of scan.up AG who were involved in the development of the project covered by the contract or to make such offers to them during the term of the consulting agreement with scan.up AG and for a period of 24 months thereafter.

V. Compensation
Unless the contracting parties have agreed on a fixed fee, scan.up AG shall bill for its services on the basis of the daily rates in effect at the time according to the time actually spent. All expenses incurred in connection with the performance shall be borne by the client. The rates for per diem expenses and travel by car are those listed in the applicable price list or the relevant offer of scan.up AG.
The agreed prices are exclusive of statutory value-added tax. Invoices are payable immediately upon receipt without deduction. The client may only set off counterclaims or assert a right of retention if its claims are undisputed or have become res judicata.

VI. External costs
External and ancillary costs, such as the costs of engaging expert third parties or telephone, fax, courier expenses and the like, shall be reimbursed to scan.up AG separately against proof, unless the parties have agreed on a flat rate. scan.up AG shall be entitled to subcontract all external services required for the performance of services ordered on behalf and for the account of the client.

VII. Securing the performance
If a date agreed for the performance of services by scan.up AG cannot be complied with due to force majeure, illness, an accident or other circumstances for which scan.up AG is not responsible, scan.up AG shall be entitled to provide the services on a date to be newly agreed or to have them performed by another employee; scan.up AG shall have no liability for damages in this case. If the client is unable to comply with a fixed date agreed or is in default of acceptance with respect to the services, the following provision shall apply: in the event of a cancellation within the period of four to two months prior to the date agreed for the performance of the service, scan.up AG shall invoice 50% and thereafter 100% of the fee plus any external costs incurred. The postponement of a fixed date agreed shall also be deemed a cancellation.

VIII. Liability
scan.up AG does not guarantee that online versions of the test procedures which are used on the internet will be free from viruses. For any damage caused by the use of test procedures sold by scan.up, the liability of scan.up AG shall be limited to the purchase price of the individual test used. For damage events caused by ordinary negligence committed in the context of consulting and other services, scan.up AG shall only be liable for an amount equal to the order amount. A “damage event” shall be defined as the sum of the claims of all claimants arising from a single service. scan.up AG is not liable for any unforeseeable damage which is not typical for the type of contract and is due to ordinary negligence. If the client prefers liability insurance with a higher sum insured, it shall notify scan.up AG of this. In this case, the client shall bear the costs of the insurance with a higher sum insured if such insurance can be obtained.
scan.up AG is not responsible for considering any legal issues, in particular in the areas of copyright, competition and trademark law. Therefore, scan.up AG is not responsible for ensuring that the content and/or the design of the work results are permitted by law.
The client shall indemnify scan.up AG against any liability where a third party asserts a claim against scan.up AG for injunctive relief, damages or the like based on the design and/or the content of the work results.

IX. Final provisions
The place of performance with respect to the delivery and payment and the place of jurisdiction for all disputes between the contracting parties is Hamburg if the client is a business person, a legal entity under public law or a special fund under public law. The place of jurisdiction also applies to persons other than the aforementioned if the client does not have a general place of jurisdiction in Germany, moves its place of residence and/or business outside of Germany immediately after the execution of the contract or if its place of residence and/or business or its habitual abode is not known at the time when the action is brought.
The invalidity of individual provisions shall not affect the validity of the remaining provisions of the agreement. An invalid clause shall be replaced by a supplementary interpretation of the contract which comes closest to the economic purpose.
Unless otherwise agreed, German law shall also apply to contracts with foreign clients.

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