General-Terms-and-Conditions

General Terms & Conditions for Service and Business of Global Textile Scheme GmbH, Duesseldorf, Germany

§ 1 Scope of application

(1)   All services and supplies rendered by Global Textile Scheme GmbH of Bolker Straße 37, 40213 Düsseldorf, Germany (hereinafter referred to as “Provider”) which are provided to the customer for use as software-as-a-service “GTS-Cat” (hereinafter referred to as “Software”), the GTS-Language and associated digital database incl. code (hereinafter referred to as the “GTS-L-Catalogue”, Software and GTS-L-Catalogue hereinafter together referred to as “Services”), are provided on the basis of this Agreement only. Any terms and conditions at odds with this Agreement shall not apply unless expressly agreed in writing.
(2)   Only business entities can be clients within the meaning of this Agreement. For the purposes of this Agreement, these are individuals or legal entities or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when entering into the Agreement with the Provider.

§ 2 Contract deliverable

(1) The contract deliverable is provision of the Services by the Provider as per the proposal. Insofar as the GTS-Language and GTS-L-Catalogue are to be used independently of the Software, the exclusively Software-specific provisions of these General Terms & Conditions shall not apply. In all events, the rights of use set out in Clause 7 shall apply with regard to the GTS-Language and the GTS-L-Catalogue.

(2) Establishment and maintenance of the data connection between the transfer point specified in Clause 3 (3) and the Client’s IT systems are not part of the Service.

(3) The source code of the Software is also not a deliverable. The files of the GTS-Language and the GTS-L-Catalogue may be downloaded and used subject to the restrictions of use set out in Clause 7.

§ 3 Use of the Services

(1) The Services are made available to the Client for use in return for payment for the duration of this Agreement. In the course of the Agreement, the Provider may optionally provide enhanced or newly created deliverable components in return for payment of an additional charge. Enhanced or new deliverable components also fall within the scope of these terms and conditions when ordered by the Client.

(2) The Services are accessible by the Client over the Internet using the current version of a commonly used browser.

(3) The handover point for the Services is the router output at the data centre.

(4) The Provider shall continue to develop and improve the Services during the term of the Agreement and, to the extent necessary, also adapt them to technical changes of relevance to the market (e.g. new versions of browsers and operating systems). However, the Client shall have no entitlement to specific improvements or enhancements. Should the Client require adjustments due to new or changed requirements, the Provider may potentially offer these to the Client as chargeable extras under a separate agreement.

(5) The Provider shall be entitled to use open source components to the extent that they do not conflict with the Client’s ordinary use of the Services under these terms and conditions.

(6) The Provider may avail itself of the assistance of freelancers and subcontractors to provide the Services due.

(7) The Services shall be made available in the German language. The Provider may optionally offer additional languages for use of the Services, but shall not be obliged to do so.

(8) Onboarding shall be conducted by arrangement on the basis of an onboarding introduction document explaining important questions and general frameworks, and containing API descriptions.
For initial queries and an introductory talk by the admin or by the Client’s power users, 4 hours (0.5 of a day) of general introduction and answering questions shall be included in the usage fees.
Additional expenses, for example for further explanations or more detailed organisational or technical clarification, shall be charged by the Provider at a separate daily rate of € 1,280 plus travel expenses, where applicable, and plus applicable statutory VAT. The company Pranke GmbH is used by the Provider for technical questions.

§ 4 Provision of computing power and storage space

(1) The Client shall be provided with the necessary storage space for uploading and storing its data. The Provider shall ensure that the stored data can be accessed via the Internet.

(2) The Provider shall be obliged to take appropriate precautions against loss of data and to prevent unauthorised third-party access to the Client’s data. To this end, the Provider shall take security precautions customary in the market to an appropriate extent.

(3) The Provider shall back up the Client’s data by way of daily backups on a redundant backup system. The backups shall be created on an incremental basis and retained for a period of 14 days. Once the retention period has expired, the oldest backup shall be deleted each day.

(4) Should a failing on the part of the Client make it necessary to import a backup, the Client shall reimburse the Provider for time and expenses so incurred.

§ 5 Support

The Provider shall accept Client enquiries by e-mail regarding operation of the Software on weekdays (Mon-Fri) between 9 a.m. and 5 p.m. CET (unless otherwise agreed in the proposal) and shall answer them promptly wherever possible.
Extended support, e.g. via hotline, may be booked by the Client as an additional extra under a separate agreement.
Public holidays and the period from 23 December to 6 January shall not count as support periods.

§ 6 Access points

Upon registration, the Client undertakes to submit an extract from the commercial register and international VAT ID details at the Provider’s request.

The Provider shall give the Client an administration access point plus an initial password for the Software. This should be changed by the Client without delay. The Client may create any number of user profiles under its administration access point. it must store them carefully and securely and prevent access by unauthorised third parties.
If the Client becomes aware of access by unauthorised third parties, the Client shall be bound to notify the Provider immediately thereof.

In the first instance, an admin password shall be assigned which can be viewed by the GTS-Cat administrators.

§ 7 Rights of use

(1) The Client shall be given the simple, non-transferable right, limited in time to the term of this Agreement, to use the Services as intended. The intended use shall comprise use of the Software over the Internet and use of the GTS-Language and GTS-L-Catalogue including codes, features and feature values contained therein.
The GTS-Language and the GTS-L-Catalogue may be downloaded and used as intended for own-use purposes only. Use of the GTS-Language and GTS-L-Catalogue shall continue to be possible free of charge following termination of the Agreement, however the Client shall not be entitled to receive more recent versions of GTS-Language and GTS-L-Catalogue.

(2) The Client shall not be entitled to use the Services beyond the use permitted in accordance with these terms and conditions or to suffer them to be used by third parties or to make them accessible to third parties. Third parties shall also include affiliated companies. In particular, the Client shall not be permitted to reproduce, process or sell the Services or parts thereof or to provide them to others for a limited period of time, and especially not to hire or loan them out. This also concerns in particular

– the data centre operation for third parties or

– making the Services temporarily available to third parties.

Use of the Services shall be permitted exclusively within the scope of the Client’s own business operations.

This paragraph shall not apply to service providers engaged by the Client to enable the Client to use the Services as intended and to whom the Client does not grant its own rights to the Services.

(3) Insofar as the Provider uses open source software within the Software, these terms and conditions shall have no effect in terms of rights of use. The respective open source licence conditions of the third party provider shall apply in exclusivity.

(4) The Client grants the Provider the rights of use necessary for fulfilment of its contractual obligations to the data which it transfers to the storage space granted under Clause 4 in connection with use of the Software. This includes, in particular, the right to make the data accessible over the Internet in the event of queries and, in particular, to reproduce and transmit it for this purpose and to reproduce it for the purpose of data backups. At all events, the Client shall remain the sole owner of this data.

§ 8 Interruption/impairment of accessibility

(1) Adjustments, changes and supplementations to the contractual deliverables and measures serving to determine and remedy malfunctions will only lead to temporary interruption or impairment of accessibility where absolutely necessary for technical reasons.

(2) The Provider shall guarantee an annual average of 99.5% availability of the Software. Planned and announced maintenance work shall not count as downtime. The Provider shall endeavour to give at least 7 days’ notice of any maintenance work.

§ 9 Duties of the Client

(1) The Client undertakes not to use any data in the Services that is unlawful or violates the law, regulatory requirements or third-party rights.

(2) The Client shall be obliged to prevent unauthorised access by third parties to the protected areas of the Services by taking appropriate precautions. To this end, the Client shall, to the extent necessary, instruct its employees to comply with copyright law.

(3) Notwithstanding the Provider’s obligation to back up data, the Client itself shall be responsible for entering and maintaining its data and information required to use the Services, unless expressly agreed otherwise with the Provider.

(4) The Client shall observe the minimum technical requirements for the use of the Services specified by the Provider as well as the respective specifications regarding the necessary data structure and data quality (in particular with regard to the format, arrangement, designation, accuracy, currency and consistency of the data).

(5) The Client shall be obliged to check its data and information for viruses or other harmful components before entry and to use standard anti-virus programmes for this purpose.

(6) For users in the IT provider segments (e.g. ERP, PDM/PLM, PIM, etc.) as well as platforms:
Use of the Global Textile Scheme Language requires adaptation of the system’s own master data structures to the characteristics of the Global Textile Scheme Language and to the conditions present within the technical GTS-Cat infrastructure.
Users in the IT provider segments (e.g. ERP, PDM/PLM, PIM, etc.) and platforms are advised to construct the Global Textile Scheme with all its elements in such a modular manner and to build it into their solutions in such a way that the IT providers’ respective GTS clients, at the beginning, during or after use of the GTS L, are not disadvantaged by regular Software updates by the IT provider.
Global Textile Scheme GmbH disclaims any liability should users in the IT provider segments (e.g. ERP, PDM/PLM, PIM, etc.) or platforms violate this contractual basis for collaboration and use of the Global Textile Scheme.

(7) In the event of disruptions, functional failures or impairments of the Services, the Client shall be obliged to notify the Provider immediately and in as precise a manner as possible.

§ 10 Remuneration

(1)   For the provision of the Services, the Client undertakes to pay the remuneration agreed in the proposal.
(2)   Payments shall be due no later than 10 days following receipt of invoice.
(3)   All price quotations and agreements are denominated in euros and do not include the statutory value-added tax applicable at the time the service is provided.
(4)   The Provider shall be entitled to increase the remuneration at most once a year, subject to the serving of three months’ written notice, albeit at the earliest 12 months following entry into the Agreement. Where the increase exceeds 10%, the Client shall be entitled to serve notice of termination of the rental contract within six weeks of receiving the announcement of the increase.
(5)   For further services (e.g. onboarding), the Provider may recommend a suitable service provider to the Client.

§ 11 Warranty/Liability

(1)   In the event of material defects, the Provider shall, at its discretion, either provide the Client with a new, defect-free version of the Services or remedy the defect within a reasonable period of time.
(2)   The Provider may point out to the Client reasonable ways to avoid the impact of the defect (workaround). A workaround may extend the reasonable period for remedying the defect.
(3)   The Provider shall be entitled to make rectification of defects dependent on the Client not being in arrears with payment of its rent.
(4)   In all cases of contractual and non-contractual liability, the Provider shall pay damages exclusively in accordance with the following limits:
a)      in the event of malicious intent and gross negligence: no limitation;
b)     in the event of minor negligence arising only from breach of an essential contractual obligation: in the amount of the foreseeable damage typical for the contract;
(5)   The Provider shall not be obliged to check data, certificates etc. provided by the Client for accuracy or for conformity with applicable law. Accordingly, the Provider shall assume no liability for these. The Provider shall also not be liable for user errors on the part of the Client (e.g. incomplete downloads or downloads of incorrect data).
(6)   The limitations of liability as per the above clauses shall not apply in cases of liability for personal injury and bodily harm or in cases of liability under the German Product Liability Act.

§ 12 Force majeure

(1) The Provider shall be released from its duty to perform under this Agreement insofar as the non-performance of Services be due to the occurrence of circumstances of force majeure after the Agreement has been entered into.

(2) Circumstances of force majeure shall include, for example, war, strikes, riots, pandemics, expropriations, cardinal changes in the law, storms, floods and other natural disasters as well as other circumstances for which the Provider is not responsible, in particular water ingress, power failures and interruptions or destruction of data-carrying lines or infrastructure.

(3) Each Party hereto shall immediately notify the other Party in writing of the occurrence of a force majeure event.

§ 13 Term and termination

(1) The contract begins with the provision of access by the provider and runs for at least one year. Depending on the offer, the contract may have a longer minimum term. It is automatically extended by a further year after expiry if it is not terminated by one of the parties with a notice period of three months to the end of the contract. Termination is permitted for the first time at the end of the minimum term.

(2) The right of the parties to extraordinary termination for good cause shall remain notwithstanding. Good cause for extraordinary termination shall exist in particular where

• a party repeatedly breaches material contractual obligations under this Agreement despite a warning;

• a party commits an act of tort in connection with this Agreement;

• one of the parties ceases business operations in whole or in part and a direct legal successor fails to ensure continued operation.

(3) Notice of termination must be served in textual form.

(4) Booked modules (KEYs) can be extended at any time during the term of the contract, but can only be reduced or completely terminated once per contract year with a notice period of 3 months to the end of the year.

The special one-time trial period for Key Try is 4 months without renewal. 
During this time, all functions of Key One, Key Two and Key Three may be used.
Where notice of termination is not served on individual modules (Key ONE/TWO/THREE or all 3 modules) before the end of the 4 months, a contract shall be created which may be cancelled no earlier than as per the end of the following year by duly observing the normal period of notice.
If such an automatic renewal occurs after the trial period, the trial period shall be deemed to be the period of use for the purposes of calculating the annual fee (adjusted to the remaining period of the start year).
Key Try is not possible for associations, IT providers and platform operators.

(5) The contractual rights of use of the Client shall lapse when the Agreement ends. One exception to this shall be further use of GTS-Language and GTS-L-Catalogue as set out in Clause 7. This provision is expressly excluded in the event of termination during the 4-month trial phase for Key Try.

(6) The Client shall have the option to export its data at any time via the corresponding function within the Software. The data will be erased permanently by the Provider after Agreement ends. Once the Agreement has ended, the Client shall no longer have any entitlement also to use the Software with which the data can be used.

§ 14 Privacy

(1)   Both parties shall comply with the applicable provisions of data protection law, in particular those applicable in Germany, and shall oblige their employees deployed in connection with the contract to observe data secrecy insofar as they are not already under a general obligation to do so.
(2)   Where the Client collects, processes or uses personal data, it warrants that it is entitled to do so in accordance with the applicable provisions of data protection law and, in the event of a breach, shall indemnify the Provider against third-party claims. To the extent necessary, the parties shall enter into a contract for the contracted-out processing of data.

§ 15 Confidentiality

(1)     The parties undertake to treat all confidential information to which they have gained access in the course of using the Software as strictly confidential and not to make it available to any third party unless this is expressly permitted under this contract or is absolutely necessary for using the Software in accordance with the Agreement. The parties shall treat the confidential information with the same care that they apply to their own equally confidential information, albeit as a minimum with the diligence of a prudent businessperson.
(2)     All the Client’s transmitted data and information concerning the technical structure of the Software shall be deemed “confidential”.
(3)     Information shall not be deemed confidential
–         where the receiving party has demonstrably received or is receiving it from third parties who are not bound by restrictions on the use and disclosure of such information;
–         where it can be shown to have already been generally known at the time of acquisition or subsequently became generally known without any breach of this confidentiality obligation on the part of the receiving party;
–         where it can be shown to have been independently developed by the receiving party before knowledge was obtained
(4)     The receiving party undertakes to take all appropriate precautions to ensure confidentiality. In particular, it undertakes to oblige, in writing, its employees and other persons or third parties authorised to use the Software (in particular service providers) to maintain confidentiality. Employees will only disclose confidential information as defined in this Agreement to other employees if they need to know it in order to work together (“need-to-know”). The receiving party shall be responsible for any breach of the confidentiality obligation on the part of its employees and all persons and third parties to whom it has given rights of use for purposes of proper collaboration.
(5)     The confidentiality obligation shall remain in force and effect for an unlimited period after the Agreement ends.

§ 16 Applicable law & Place of jurisprudence

These terms and conditions shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. For disputes arising from this Agreement, the exclusive place of jurisprudence shall be the place in which the Provider has its registered office.

§ 17 Miscellaneous

(1)   Oral collateral agreements have not been entered into. Amendments, supplements and additions to this Agreement shall only be valid where agreed in writing between the parties hereto. This shall also apply to the amendment of the written form clause itself.
(2)   Should any provision of this Agreement be or become invalid, the validity of the Agreement in all other respects shall remain notwithstanding. The place of the invalid provision shall be taken by statutory provisions.