General Terms and Conditions of Substain GmbH
§ 1 General
1.1 Substain develops and licenses its software for holistic ESG reporting and sustainability management only on the basis of these General Terms and Conditions as amended from time to time.
1.2 General terms and conditions of licensees shall not become part of the contract, even if they are not expressly contradicted. Deviating or supplementary agreements must always be expressly agreed in writing in order to be valid. Acceptance of Substain's services by the Licensee shall be deemed to constitute acceptance of these GTC, waiving the Licensee's own GTC.
1.3 Individual agreements made with the Licensee in individual cases shall take precedence over these GTC. With the exception of managing directors and authorized signatories, Substain's employees are not entitled to make verbal agreements that deviate from these GTC or the concluded contract.
1.4 These GTC or the GTC as amended from time to time shall also apply to future contracts or amendments to contracts between Substain and the Licensee.
§ 2 Offers, conclusion of contract, supplementary offers
2.1 Substain is bound by its offers and the prices and conditions submitted for the period specified in the respective offer (binding period). Substain reserves the right to refuse to conclude a contract in the event that acceptance of an offer is received after this binding period has expired.
2.2 The Licensee is entitled to request adjustments to the subject matter of the delivery or service at any time. Substain shall inform the Licensee of the effects of the changes, in particular with regard to price and completion date, in the context of a supplementary offer. Substain is not obliged to implement the change request before the Licensee accepts the supplementary offer. Delays and additional costs resulting from a failure to accept the supplementary offer without delay shall be borne by the licensee.
§ 3 Contract fulfillment by substain/rights of instruction
3.1 With regard to all services under the concluded contracts, Substain observes the generally recognized rules of technology and the technical specifications agreed with the Licensee. Substain shall provide its services in accordance with the conditions and service levels specified in the respective offer.
3.2 If Substain's employees work on the Licensee's premises in the performance of a contract, the Licensee shall have no right to issue instructions to these employees.
§ 4 Contract term; termination
4.1 The term and extension of the contracts concluded with the licensee are based on the offer and the software license agreement.
4.2 The right to extraordinary termination without notice remains unaffected. Substain shall be entitled to such a right in particular if
- the licensee ceases to make payments or insolvency proceedings have been opened against its assets or the opening of such proceedings is refused for lack of assets;
- there is a delay in acceptance by the licensee or a lack of cooperation after the expiry of a grace period;
- there is a continuing default in payment by the Licensee if a reasonable grace period granted by Substain has expired; or
- the Licensee is otherwise in default after a reasonable grace period granted by Substain has expired.
4.3 Any termination must be in writing.
4.4 In the event of justified termination without notice for good cause, the Licensee shall be obliged to pay Substain the agreed remuneration plus additional costs and expenses, less any costs and expenses not to be borne by Substain as a result of the premature termination.
§ 5 Prices, terms of payment
5.1 All license fees and other remuneration agreed between Substain and the Licensee are net amounts plus VAT at the statutory rate. Substain will show the tax rate and the amount of VAT separately on the invoice.
5.2 Payments shall be made cashless to the account shown on the invoice.
5.3 Unless other payment agreements have been made, payments are due 10 days after the invoice date without any deductions. Any deduction of a discount must be agreed in writing. If the Licensee is in arrears with payments, interest shall be charged on Substain's claims at 9 percentage points above the applicable prime rate.
§ 6 Travel expenses
6.1 Unless otherwise agreed in the offer, the following provision shall apply: If attendance appointments for the provision of the service take place at the Client's registered office or a branch office ("place of performance"), the following travel costs shall be charged per employee per day of attendance, depending on the distance from the Subcontractor's registered office: up to 100 km distance EUR 75.00 per person, up to 400 km distance EUR 350.00, and over 400 km distance EUR 500.00 per person. This flat rate includes the costs for the outward and return journey, the time required and meals. If an overnight stay is necessary, this will be charged at EUR 150 per person.
§ 7 Offsetting, retention and assignment of claims
7.1 The Licensee shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by Substain. In addition, the Licensee shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
7.2 The rights and obligations arising from the contracts concluded with Substain may not be transferred by the Licensee to a third party without Substain's consent.
7.3 If an assignment made without Substain's consent pursuant to Section 354a of the German Commercial Code (HGB) is nevertheless effective, this shall not affect Substain's right to offset any counterclaims against the Licensee (existing creditor).
§ 8 Secrecy, confidentiality
8.1 The contracting parties mutually undertake to treat as confidential at all times any business transactions and other internal business information of the other contracting party of which they become aware in the course of the performance of a contract or otherwise as a result of the cooperation and not to disclose such information to third parties. This obligation shall be unlimited in time and shall continue to apply even after the end of a contract and/or the business relationship between the contracting parties. The confidentiality obligation does not cover the circumstances of the collaboration between the Licensee and Substain. Substain is entitled to use the Licensee as a reference.
8.2 After termination of the contract, the Licensee's data shall be deleted at the Licensee's request, unless Substain is obliged to retain it for a longer period due to legal obligations or legal claims of the Licensee or third parties. The Licensee Data in Substain's own data backups shall only be deleted by destroying the backups after the retention periods have expired.
§ 9 Data protection
9.1 Substain complies with the applicable data protection regulations and requirements.
9.2 The details are governed by the data processing agreement concluded between the parties (Art. 28 (3) GDPR).
§ 10 Naming as reference customer or contractual partner
10.1 Substain is entitled to name the Licensee as a reference customer. The Licensee may at any time request in text form that its nomination as a reference customer be terminated.
10.2 The indication as a reference customer may also be made online, for example on Substain's company website, including the display of the Licensee's company logo. For this purpose, the Licensee shall grant Substain a non-exclusive, non-transferable right of use, unlimited in time and space, with regard to the Licensee's name and trademark rights required for this purpose.
10.3 The Licensee is entitled to name Substain as its contractual partner in the area of sustainability strategy and climate protection. Accordingly, Substain grants the Licensee for this purpose a non-exclusive, non-transferable right of use, unlimited in time and space, with regard to the name and trademark rights of Substain required for this purpose.
10.4 The Licensee's right of use pursuant to Clause 3 shall end, without the need for termination, at the end of the Software License Agreement.
§ 11 Property rights / copyrights
11.1 Software offered by Substain is protected by copyright or otherwise.
11.2 As a rule, the licensee is only granted a simple, unrestricted right of use, i.e. he may neither copy them nor allow others to use them.
11.3 By concluding the contract, the Licensee also acknowledges the terms and conditions of use for the respective software vis-à-vis the author.
§ 12 Liability
12.1 Substain shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents. Substain's liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, is limited in accordance with this clause, unless it is a breach of material contractual obligations (cardinal obligations). Essential contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the licensee regularly relies and may rely.
12.2 Insofar as Substain is liable for damages on the merits, this liability shall be limited to damages that were foreseeable as a possible consequence of a breach of contract at the time the contract was concluded or that were foreseeable if due care was exercised. Indirect damage and consequential damage resulting from defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
12.3 In the event of liability for personal injury, property damage and financial loss, liability - insofar as legally possible for the negligent breach of cardinal obligations - is limited to an amount of € 10,000,000.00 per claim.
12.4 Insofar as Substain provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.
12.5 Any liability under the Product Liability Act remains unaffected.
§ 13 Miscellaneous, final provisions
13.1 Unless otherwise contractually agreed, the contractual language is German.
13.2 Contracts between the Licensee and Substain shall be governed exclusively by the law of the Federal Republic of Germany.
13.3 Amendments and additions to the contractual cooperation must be made in text form. The text form requirement can also only be waived on the basis of an agreement in text form.
13.4 If Substain sends its offers using an e-signature solution (e.g. Dokusign, Yousign or similar), contracts are also concluded if the Licensee submits its declarations in text or written form.
13.5 Should a provision in these GTC or in a contract between the parties be or become invalid or unenforceable, all other provisions shall remain unaffected. The parties are obliged to replace an invalid or unenforceable provision with a new provision that comes as close as possible to the legal and economic purpose intended by the original provision. The same applies in the event of a loophole.
13.6 The place of performance and jurisdiction is Munich if the Licensee is a merchant. However, Substain shall be entitled to sue the Licensee at any other statutory place of jurisdiction.