General Terms and Conditions of Open Source Group GmbH

As of: May 25th 2018

1. Scope

1.1 These General Terms and Conditions shall be valid for all contractual agreements about the provision of services concluded between the client and Open Source Group GmbH (“hereinafter referred to as Open Source Group “). These Terms shall also apply to all future business deals even if they have not been once again expressly agreed. Any deviating contractual terms of the client which are not expressly acknowledged by Open Source Group, shall not apply even if Open Source Group does not explicitly object to them. The following Terms and Conditions shall also apply if Open Source Group fills the client’s order without reservation while knowing of terms and conditions of the client that contravene or vary from these Terms.

1.2 The offers of Open Source Group are aimed solely at entrepreneurs within the meaning of Section 14 BGB (German Civil Code). Rights granted to consumers within the meaning of Section 13 BGB, for example the right of revocation in the case of distance contracts, do not apply.

2. Services of Open Source Group

2.1 Open Source Group offers software products that can be downloaded, partly for a charge and partly free of charge, from the Open Source Group website.
Beside this Open Source Group offers various services as for example webdesign, hosting, software development, domain registration, trainings, hardware delivery. An exact description of the service to be rendered will be found by the client in the offer or at www.osg-gmbh.de. The exact scope of the service will be agreed in a contractual agreement between the parties.

2.2 With the acquisition of a limited membership, the client receives the right to download additional software products and to claim extended support in the Internet forum of the Open Source Group website for the duration of the membership.

2.2 Voluntary and services free of charge rendered by Open Source Group can be suspended at any time. The client does not have any claim to continue using these services.

2.3 If Open Source Group renders services not agreed in the offer, then these services must be remunerated based upon the valid hour rates at the time of placing the order plus travel costs.

2.4 If a design work forms part of the contract and fixed prices are quoted, then the fixed price will include two proofreading runs.

2.5 If online support forms part of the contract, then Open Source Group will respond to the client’s request on working days (moday till friday) by no later than the end of the day after the next working day. Within the framework of online support the client will only be advised concerning the application of the service forming part of the contract. The client is obliged to assist the provision of support services with detailed fault or problem descriptions. 

3.Terms of payment

3.1 The prices include no VAT, unless otherwise indicated. This will be indicated separately in the invoice at the rate prevailing on the date of the invoice.

3.2 The client shall not be entitled to offsetting rights or rights of retention except where the client´s claims are undisputed or have been confirmed by a final court judgment.

3.3 In the event of non-payment or an application for the initiation of insolvency proceedings against the client, the whole claim of Open Source Group shall be immediately due for payment.

3.4 If insolvency proceedings are initiated against the assets of the client, or if an application for insolvency proceedings is made to the court with jurisdiction, Open Source Group can withdraw from any contracts that have not been executed; in the case of continuing obligations, Open Source Group is entitled to make an extraordinary termination without notice.

3.5 In the case of continuing obligations, the agreed remuneration must be paid in advance on receipt of the invoice. In the event that the invoice is not paid, after issuing a reminder and setting a deadline for payment, Open Source Group has the right to withhold its services as long as the invoices of Open Source Group have not been settled. In the case of hosting, this means that the website will no longer be accessible.

3.6 Open Source Group is entitled to invoice partial services.

3.7 If nothing to the contrary has been agreed, the invoices of Open Source Group must be paid within 14 days on receipt of the invoice.

3.8 The payments for participating in open seminars must be made before the course begins. The payment is the requirement for participation in the event.

3.9 The payment shall be made according to the method of payment selected by the client based upon Open Source Group’s policies. In the event that the client’s bank or payment/credit card institution fails to approve the cashless payment, Open Source Group may refuse to conclude the contractual agreement. 

4. Reservation of ownership

4.1 The ownership of the goods Open Source Group has supplied shall be transferred to the client upon the payment in full of any outstanding amounts that the client owes. 

5. Contract duration, cancellation

5.1 A limited contractual relationship ends on expiry of the contract duration without any need to give notice.

5.2 If the contract is concluded for an indefinite period, either party can terminate the contract with notice of 6 months to the end of a month insofar as nothing else is agreed.

5.3 The rights for termination for cause shall be unaffected. In the event of an extraordinary termination by Open Source Group, pro rata payments made in advance will not be refunded.  Termination for cause shall be deemed to exist if the client fails to pay an invoice of Open Source Group after having received a written reminder or if he fails to pay two consecutive invoices, even if the payment due constitutes only a partial amount of the invoice.

5.4 A termination may be made in writing or in text form.

5.5 Furthermore, after expiry of the term of the contract, Open Source Group is entitled to disconnect or block all accesses. Open Source Group is also entitled to withhold services insofar and for as long as the agreed remuneration is not paid. In this case the client will be informed and reminded by Open Source Group accordingly and a deadline set for payment.

5.6 After termination of the contract, Open Source Group is no longer obliged to provide the contractual services. 

6. Warranty and liability

6.1 The warranty period for all services of Open Source Group is 12 months - except in cases of fraudulent concealment of a defect or where there is a quality or durability guarantee - and begins with the provision of the service and, if an acceptance inspection is necessary, with the acceptance inspection, and in the case of the delivery of goods, with the hand-over.

6.2 Guarantee claims by the client shall only apply if the client has duly fulfilled his examination and notification obligations in accordance with Section 377 German Commercial Code [HGB].

6.3 Open Source Group will make every effort to ensure continuous availability and flawless functionality of its services. The client acknowledges, however, that for technical reasons alone and due to the dependence on external influences, the uninterrupted availability of, for example, the servers of Open Source Group, is not feasible, which is why the client does not have any claim to constant accessibility. Merely temporary access restrictions do not bestow any warranty claims or any right to terminate the contract without notice. For the execution of technical improvements and for maintenance purposes Open Source Group reserves the right to block the client’s access temporarily. Unless emergency work has to be carried out, the client will be notified accordingly.

6.4 In the case of justified complaints, the client is entitled to a remedy. Within the framework of the remedy, Open Source Group will eliminate the defect at its own discretion either by re-supply (supply of new goods) or repair (elimination of the defect). The client shall give Open Source Group a reasonable period of time to effect the remedy. Open Source Group shall bear the necessary costs of eliminating defects provided that these are not increased due to the subject of the contract being in a location other than the place of fulfilment. In the event that the remedy has failed, the client is entitled, at his own discretion, either to demand a reduction of payment (diminuation) or to withdraw from the contract. The repair shall be deemed to have failed after the second unsuccessful attempt unless in the specific case further repair attempts are reasonable and acceptable to the client. The client is entitled to assert compensation claims for damages due to the defect according the following conditions, only when the remedy has failed. The right of the client for asserting any more extensive claims for damages according the following conditions shall not be excluded.

6.5 Open Source Group shall assume no liability for damages other than damages to life, limb or health unless the damages are due to deliberate or grossly negligent behaviour on the part of Open Source Group, one of its legal representatives or vicarious agents, and the behaviour infringes upon substantial  obligations relating to the purpose of the contract.

Substantial obligations are obligations whose fulfillment is necessary for the orderly implementation of the contract and on whose fulfillment the contract partner relies and is entitled to rely. This exclusion of liability does not apply in the case of claims pursuant to the Product Liability Act.

6.6 All other compensation claims are excluded, in particular compensation for indirect damages and damages due to force majeure, i.e. unforeseeable and unavoidable events.

6.7 The client is obliged to make regular data backups according to the risk of unusually high damages. In the case of the loss or destruction of data, Open Source Group is only liable for damages that would also have occurred even with proper data security. This is usually the costs for reconstruction, unless the data backup is a principal obligation of Open Source Group.

6.8 Before the installation of any updates or upgrades, the client will be notified at least one day in advance by Open Source Group. The client is obliged to secure his data against any losses due to this, unless the data backup is a principal obligation of Open Source Group. 

7. Utilisation rights

7.1 Insofar as no other appropriate usage is agreed, Open Source Group grants the client at the respective time of the handover or provision of a work, the non-exclusive, geographically unrestricted and permanent right to use the services in accordance with the contract, i.e. in particular to store and load them permanently or temporarily, to show and run them, also to the extent that duplications are necessary.

7.2 Any copyright notices, trade marks, other legal reservations, serial numbers or other features contained in the software for the purpose of program identification may not be altered or deleted.

7.3 The client shall be entitled to the rights according Sections 69d, 69e  German Copyright Act (UrhG).

7.4 If the contract is limited in time and consists in the temporary provision of copyright-protected works, Open Source Group grants the client the non-exclusive right, to use the service - as agreed - with restrictions in time, place and content.

7.5 In the case open source software is made available by Open Source Group, specially following numbers shall apply:

7.5.1 Open source software is software that anyone can use, copy or disseminate in modified or unmodified form. In particular, this means that the source code must be available.

7.5.2 Insofar as, among other things, open source software is the subject of a supply/service, Open Source Group does not transfer any utilisation rights to the open source software to the client. To this extent, the licensing regulations for the respective open source software shall apply. These shall also be supplied by Open Source Group in the event of provision.

7.6 Any utilisation rights granted can be withdrawn from the client after a reminder and the setting of a deadline for payment if and for as long as the invoices of Open Source Group have not been settled. 

8. Obligations of the client

8.1 The client is responsible for all content that the client makes available or stores. Open Source Group is neither obliged nor entitled to examine the websites of the client for any legal infringements.

8.2 In using the service, the client is obliged to refrain from any actions that infringe against the rights of third parties (including their privacy rights or copyrights) or against any legal prohibitions,  morality (in particular pornographic, racist, xenophobic, ultra-right or other objectionable content) or the rights of third parties (in particular trade marks, brand names and copyrights).

8.3 Insofar as nothing else has been agreed between the parties, the client is obliged to make regular backups of all files and software settings that he has access to. The backup copies made by the client must never be stored on the Open Source Group server. In the event that the client cannot back up his own data because he has not sufficient access to the data, for example because the data is hosted by Open Source Group, Open Source Group will make this data available for download on request at regular intervals for the purpose of backing it up.

8.4 The client may not send mass e-mails with the same content (“spam”) via the systems or servers of Open Source Group without the consent of the respective recipient.

8.5 The client assures that personal data as well as company data made available by him are truthful and complete.

8.6 The client is obliged to non-disclosure of the login data in order to avoid misuse by unauthorized third persons.

8.7 If, nonetheless, a claim is brought by a third party against Open Source Group in connection with this contract due to infringements of obligations on the part of the client, the client is obliged to indemnify Open Source Group from any liability and to reimburse the costs incurred due to the legal infringement including the costs of prosecution or defence. In this case, the client will be notified accordingly in writing.

8.8 The client is obliged to promptly notify Open Source Group should defects arise while using the offer.

8.9 The client is obliged to promptly inform Open Source Group if as a result of a court decision he has no longer the rights for a domain registered for him.

8.10 In the event that training measures are undertaken on the client´s premises, the client is responsible for the compatibility of the course PCs with the training computers as well as for the fulfillment of the technical requirements for conducting the training session by Open Source Group.

8.11 In the case of provision of open source software the client is obliged to observe the licensing regulations for the respective open source software.

8.12 The client is obliged to ensure that the material made available to Open Source Group by the client is free of third-party rights.

8.13 The client is obliged to ensure that the service ordered can in fact be carried out and in particular technical requirements are fulfilled. 

9. Special rules for training services

9.1 Open Source Group may withdraw from the contractual agreement if the training services are not rendered owing to the failure to obtain the stipulated minimum number of participants for the respective course, due to the trainer’s illness, circumstances of force majeure, technical reasons or other reasons for which Open Source Group is not responsible.

9.2 Before exercising its right of rescission, Open Source Group shall endeavor to move the training measure to another time or another venue or to find a replacement trainer, provided this option is available and the client agrees to this. Prompt notification shall be made of any changes. If a replacement time is not workable for the client, then he shall have the right to cancel the registration. In this case the seminar fees shall be reimbursed to the client.  No more extensive claims shall exist.

9.3 The client may cancel up to the point in time that the training measure begins. In this case following different terms shall apply:

9.3.1 For courses conducted by Open Source Group, the client may cancel upon a free-of-charge basis if the written cancellation is received by Open Source Group by no later than 15 calendar days before the event begins. However, if it is received later, then 50% of the course fee shall be charged. In the event that cancellations are received later than 8 calendar days before the event begins, if the participants fail to attend or leave the event early, then the entire course fee shall be charged. The client shall be entitled to provide replacement participant if Open Source Group agrees to this.

9.3.2 For external events i.e. for events held on partner’s premises or on the client’s premises, in addition to the aforementioned cancellation fees, where applicable, any expenditures already incurred for preparatory work for the course, modification of the infrastructure on-site or the instructor’s travel costs as well as the instructor´s cancellation costs shall be billed to the client if cancellations are received by Open Source Group later than 14 calendar days before the course begins.

9.3.3  For courses held by partners the respective partner´s cancellation notice periods shall apply. Hereto the client will be informed separately either on Open Source Group Website or at the time of confirmation of the registration. 

10. Acceptance inspection

10.1 The following shall apply if Open Source Group services require an acceptance inspection:

10.2. Acceptance inspection is conditioned upon successful testing of the functionality and/or of the contents of the website, this will be conducted by no later than two weeks after Open Source Group  has notified the client of the proper functionality.

10.3. The client shall declare acceptance after the functionality has been successfully tested.

10.4 The functionality inspection shall be deemed as having been successfully conducted if the deliverable essentially complies with the contractual requirements.  Acceptance may only be refused on account of significant defects.

10.5. The deliverable shall be deemed to be accepted if the client has used the service without reservation or has not issued a notice of defects that would have prevented acceptance by no later than 2 weeks after Open Source Group has notified the readiness for acceptance.

10.6  After having accepted and settled all outstanding invoices, the client receives the access data for the website ordered.

10.7 If after having accepted the client makes technical changes, for example updates or upgrades, he shall be responsible for any interruptions. 

11. Data protection

11.1 Open Source Group observes the provisions of the Federal Data Protection Act (General Data Protection Regulation (GDPR)). For further details we refer to the Privacy Statement (data protection). 

12. Additional provisions

12.1 Open Source Group is entitled to use the client’s name as reference. This also means being mentioned in press reports.

12.2 Open Source Group is entitled to transfer the rights and obligations arising from this contract to third parties.

12.3 Any change of the company’s domicile must be promptly notified to Open Source Group in writing.

12.4 Should individual provisions of these General Terms and Conditions be or become invalid, then this shall not affect the validity of the remaining provisions.

12.5 Place of fulfillment and exclusive legal venue for any dispute arising between Open Source Group and the client shall be our business domicile.

12.6 The contractual agreement Policyshall be governed by the laws of the Federal Republic of Germany.  The United Nations Convention on Contracts for the International Sale of Goods, CISG, as of April 11, 1980  shall not apply.

 

 

 

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