1 Subject matter

All quotations, purchase contracts, service contracts, licensing contracts, supplies and services based on our Customers’ orders, irrespective of whether you are a business enterprise, merchant, a legal entity under public law or a public-law special class of assets (hereinafter referred to as Customers), shall be subject to these General Terms and Conditions of top flow Beratungsgesellschaft für Informationstechnologie GmbH, headquartered in Bad Saulgau (hereinafter ‘top flow’, ‘we’, ‘ourselves’ or ‘us’). All agreements between Customers and ourselves shall derive from these Terms, our quotation and our order confirmation.

The version of the GTCs valid at the time of signing the Contract shall be relevant.

We shall not accept any Terms of the Customer dictating otherwise. This also applies if we do not expressly object to their applicability.

2 The nature and extent of the services

The type and scope of the goods and/or services to be provided by top flow (IT Services) shall be described in detail in the respective quotation and the Performance Specifications by top flow. The presentation and advertising of IT Services by top flow shall not constitute a binding offer for the signing of a Contract.

A Contract shall not be signed until we accept the Customer’s order by means of a separate statement of acceptance, or by delivery of the ordered items.

We shall have the right to partial delivery, in as far as this is reasonable for the Customer.

The Customer shall be responsible for properly saving data.

3 Right of use for standard software

Standard software, i.e. SAP-based software solutions (‘Add-ons’) by top flow to support the Customer’s business shall be provided to the Customer for its intended use against a one-time remuneration.

The scope of the intended use as well as the type and scope of the right of use shall be described in detail in the respective quotation and the Performance Specifications by top flow. SAP ERP is required for the intended use of the SAP Add-on.

If the quotation by top flow or the Contract with the Customer does not specify any further right of use, top flow shall grant the Customer the following right of use of the standard software upon payment of the full purchase price for the IT Services:

– the non-exclusive right of use;

– the right of use in any system environment within a productive SAP ERP system or SAP S/4 HANA on premise (SID) as well as the corresponding development, testing and sandbox systems.

– the transferrable right of use with the limitation that the Customer shall have to subject third parties to his contractual obligation in case the right of use is to be transferred to a third party. The Customer’s right of use shall expire upon transfer. All existing copies of the standard software shall have to be deleted or to be returned to top flow.

– the lasting and non-terminable right of use with the following limitation: If the Customer fundamentally violates the agreed right of use or protective right of top flow, top flow may terminate the right of use to the standard software in question for good cause. This requires that top flow has sent a cease and desist warning stating a reasonable and proportionate deadline without success.

The Customer shall not be permitted to grant sub-licenses to third parties.

If the Customer’s use of the standard software exceeds the purchased right of use in terms of quality (with regard to the type of usage permitted) or in terms of quantity (with regard to the number of licenses purchased), the Customer shall immediately purchase the rights of use necessary for permitted usage. If the Customer fails to do so, top flow shall be entitled to claim its rights.

Copyright notices, serial numbers and any other features of program identification may not be removed or modified.

The Customer agrees not to bring the standard software into a different code form, unless this is permitted under provisions of copyright law.

The source code cannot be the subject matter of an agreement.

top flow shall not be obliged to reveal the source code of the subject matter of the license. Provided the source code is part of delivery for technical reasons, the Customer undertakes to only use the source code for his own corporate purpose and for the purpose of maintaining the usability of the software, and in all other aspects to treat it as top flow’s business and manufacturing secret and keep it in a safe place and protect it against unauthorized access by third parties.

4 Price for licenses and/or consulting services

The price stated in top flow’s quotation shall be net, i.e. exclusive of any value-added tax. Any customs duties and similar charges shall be payable by the Customer.

Our invoices shall be payable upon receipt of the invoice by the Customer.

5 Software maintenance

Any services provided by top flow which are necessary for maintaining the usability of the standard software, as well as updates and extensions of the standard software (collectively referred to as ‘Maintenance Services’) shall be remunerated separately (see Section 8 below).

In its customer portal, top flow always provides a copy of new, more advanced versions of the standard software for download by the Customer, once the software has been officially released by top flow. New program versions always support the latest SAP ERP and S/4 HANA on premise versions.

The Customer shall not have a right to maintenance of discontinued previous versions.

Any adaptations to the hardware and software environment shall be the Customer’s responsibility, in particular with regard to a new version of the required SAP operating system or any other software necessary for the use of a new version.

6 Removal of defects in standard software

Any defects found in top flow’s standard software are categorized according to response times as follows:

  1. Critical defect (priority 1): Any disruption that causes the entire system, or essential parts thereof, to fail, making its use completely, or almost completely, impossible. Operations are impaired to such an extent that immediate remedy is indispensable.
  2. Major defect (priority 2): Disruption that impairs the use of the system to such an extent that any reasonable work with the system is no longer possible, or only by taking disproportionate measures. The simultaneous occurrence of several major defects may lead to a critical defect.
  3. Minor defect (priority 3): Any other disruption which does not impair the use of the system, or only does so insignificantly. The simultaneous occurrence of several such defects may lead to a major or a critical defect.

The categorization of defects shall be carried out by the Customer at his reasonably exercised discretion, taking into consideration (i) the effects which the defect in question has on their operations and (ii) the interests of top flow.

Once a defect has been reported by a Customer, top flow shall respond within the following times (‘Response Time’):

  1. For critical defects within two hours upon receipt of the information.
  2. For major defects within four hours upon receipt of the information.
  3. For any other defects within 72 hours upon receipt of the information.

If it is foreseeable that a critical or major defect cannot be remedied within a reasonable period of time, top flow shall provide a work around solution.

top flow shall remedy a defect reported by the Customer by choosing one of the following measures:

  1. Creation of a patch/bug fix, which the Customer will install locally;
  2. delivery of a new program version which no longer contains the defect;
  3. instructions for the Customer on how to get around the problem or how to remedy the defect. The Customer shall get his qualified staff to implement the instructions, as far as reasonable.

top flow shall generally have the right to provide services by means of remote maintenance or remote diagnosis, provided this does not constitute a disadvantage to the Customer.

There is a hotline for reporting defects to top flow. This hotline shall be open during service hours from 8 a.m. to 5 p.m. on weekdays, except for public and local holidays at the Bad Saulgau (Baden-Württemberg) office. In addition, there is an email address available to Customers, through which they can open up a ticket.

The response times according to these provisions shall not apply outside of these service hours.

Should it emerge that a defect reported by the Customer does not actually exist, or that it is not due to the subject matter of this Contract, the Customer agrees to pay top flow the expense for the remedy of the defect.

7 Remuneration of software maintenance

For any maintenance services the Customer shall pay an annual lump sum of x % of the list price for the license according to the respective quotation plus statutory value-added tax. The lump sum shall be invoiced in advance in the first month of each year.

If the term of the contract does not start on the first day of the invoicing period (calendar year), the fee shall be calculated on a pro rata basis for the number of days from the start of the Contract (productive use) until the start of the next first full invoicing period, and shall be payable at the start of the term of the Contract.

8 Services for adapting and introducing the software

 top flow shall meet the requirements laid down in the quotation and/or the Performance Specifications (functional scope / requirements specifications) by implementing, parametrizing, adapting or extending the standard software, by providing inductions and training as well as user support.

Subject to a fee, top flow shall support the Customer in the case of any application problems with the standard software by briefly answering such questions over the phone, by e-mail, by fax or in writing.

As part of its provision of any other trouble shooting, adaptation or support services, top flow shall invoice monthly, stating in detail all the activities and expenses incurred.

9 Duty of collaboration

The Customer agrees to support top flow’s IT Services by collaborating as listed below. He will provide top flow with the required information and data. Furthermore, the Customer will provide the necessary work materials to a reasonable extent, in particular access to all necessary systems.

The Customer shall appoint a permanent contact person for all matters pertaining to the Project. This person shall be enabled to take all the decisions relating to the Project themselves, or ensure that they are taken in a timely manner. Furthermore, the Customer shall provide such members of staff whose special knowledge is necessary to implement the Project.

If the Customer does not meet their duties of collaboration and if, for this reason, top flow is unable to complete its IT Services within the agreed timeframe, either completely or in part, the agreed timeframe shall be reasonably extended.

 10 Target dates

Only the contact person or the management of top flow stated in the quotation may promise target dates for the provision of services.

All target dates shall at least be agreed in text form.

Any delays in the provision of services due to force majeure (e.g. strike, lockout, official orders, general disruptions in telecommunications, pandemic, etc.) or circumstances which lie within the Customer’s sphere of responsibility (e.g. failure to collaborate in a timely manner, delays caused by third parties connected to the Customer, etc.) shall not be top flow’s responsibility and shall give top flow the right to postpone the provision of the services in question by the duration of the disruption plus an adequate ramp-up period.

11 Changes to the services

Any requests for changes or additions (also referred to as Change Requests (CR)) to the contractually agreed scope of the services to be provided by top flow, shall be made in text form by the Customer towards top flow.

top flow shall respond to the Change Request at short notice, no later than within a calendar week, informing the Customer whether the request needs to be examined in more detail. In particular, top flow will state their view on which changes this incurs compared with the previously agreed Project description, how this may affect the deadlines and how much time top flow will require to prepare a detailed quotation stating the price and the deadline for the implementation of the Change Request.

If the Parties are unable to reach an agreement or the change process ends for another reason, the original scope of performance shall remain unchanged.

The deadlines affected by the change process may be postponed, taking into consideration the duration of the checks, the time needed for coming to an agreement about the Change Request and – potentially – the time required for implementing the Change Requests plus a reasonable ramp-up period.

Any expense incurred as a result of the Change Request shall be borne by the Customer. These include, in particular, checking the Change Request and the creation of a change proposal. The expenses shall be calculated by top flow according to the hourly rates agreed (or according to an individual quotation).

12 Acceptance

The service shall only be accepted as a whole. This is provided that the software has been delivered, installed by the Customer, extensions have been programmed at the Customer’s site, key users have been trained, if agreed, and the software has been sufficiently tested by the Customer. Agreement on the test procedures should be reached in good time; if necessary, the contact persons named in the Project, or their deputies, shall make a binding decision.

The completion of the testing phase shall be recorded. top flow and the Customer shall mutually agree on a date for acceptance. Minor defects (priority 3) may exist at that time.

  1. If a critical defect (priority 1) becomes apparent, the process shall be aborted. Once it has been recorded that a critical defect (priority 1) no longer exists, the process shall be restarted.
  2. In the case of a major defect (priority 2), any agreed deadline shall be postponed until it has been recorded that the major defect (priority 2) no longer exists.
  3. Minor defects (priority 3) shall not hinder the process.

The categorization of defects according to Section 6 of this document shall apply.

Once the test operation has been successfully concluded, or, at the latest, once the software is in operation (go live), the service shall be deemed accepted without this requiring a statement by the Customer. The Customer may only prevent automatic acceptance by making a written statement in advance to say that there is an obstacle to acceptance.

The Parties to the contract shall record the processes during the test operation.

13 Other material or legal defects

top flow guarantees the agreed properties of IT Services; top flow also guarantees that the Customer may use the standard software without violating any third-party rights. The warranty shall not apply to defects caused by the top flow software being used in a hardware or software environment which does not meet the set requirements, or which are due to changes and modifications which the Customer made to the software without having the right to do so.

In the case of a defect concerning IT Services, top flow shall have the right to supplementary performance, i.e. at its own choice to either remedy the defect or to make a substitute delivery. In the case of legal defects, top flow shall, at its own discretion, create the legally correct possibility to use the top flow software, or to change the latter so that third-party rights are no longer being violated.

top flow shall have the right to fulfill the warranty at the Customer’s premises. top flow shall also be meeting its obligation to remedy a defect if it provides an update with an automatic installation routine for download on its website along with telephone support to resolve any installation issues for the Customer.

The Customer’s right – at their own discretion – to either reduce the price or withdraw from the Contract if the remedy or substitute delivery has failed twice shall remain unaffected. The right to withdraw from the Contract shall not apply in the case of minor defects. If the Customer claims damages or replacement for futile expenses, top flow shall be liable under Section 14.

Warranty claims based on material defects shall become statute-barred after two years, with the exception of claims for damages. The limitation period shall begin as soon as the Access Data to the download area have been transmitted and enabled.

Section 14 shall apply in the case of claims for damages and replacement for expenses.

14 Liability

top flow shall have unlimited liability

  1. in the case of intent or gross negligence,
  2. in the case of injury to life, limb or health,
  3. according to the provisions of the German Product Liability Act, and
  4. to the extent of the warranty given by top flow.

In the case of simple negligence concerning an obligation which is essential for achieving the contractual goal (material contractual obligation), top flow GmbH’s liability shall be limited to the extent of the damage which, depending on the type of the business in question, is foreseeable and typical, but no more than five million euros.

top flow shall not be subject to any further liability.

The above limitation of liability shall also apply to the personal liability of members of staff, representatives and corporate bodies of top flow GmbH.

15 Confidentiality

Confidential Information’ shall be any information or documentation of the other party marked as confidential, or which, based on the circumstances, is clearly confidential, in particular any information concerning operational processes, business relationships and knowhow, as well as – in the case of top flow – all work results.

Parties agree to keep any such confidential information secret. This obligation shall persist for a period of 5 years beyond the termination of the Contract.

The following confidential information shall be excluded from this obligation:

  1. information which was demonstrably already known to the recipient at the time the Contract was concluded or subsequently became known through a third party, without this violating a confidentiality agreement, statutory regulations or official orders;
  2. b) information which was public knowledge at the time the Contract was concluded or became so thereafter, provided this was not due to a breach of this Contract;
  3. c) information which has to be disclosed due to statutory obligations, court order or official order. As far as this is acceptable and possible, the recipient who is obliged to disclose confidential information shall inform the other party to give them the opportunity to object the disclosure.

The Parties shall only grant access to confidential information to advisors who are subject to professional confidentiality, or who have been made subject to obligations in accordance with the obligation of confidentiality under this Contract. Furthermore, the Parties shall only disclose confidential information to such members of staff who need to know such information in order to fulfil this contract; the Parties shall oblige such members of staff to confidentiality for the time after leaving the employment, to the extent permitted under labor law.

16 Miscellaneous

The Customer may not transfer any claims arising from a contract with top flow to third parties without their consent. The Customer may only offset claims which are undisputed or unappealable.

Any changes or additions to the Contract shall be made in writing as a matter of principle. Electronic documents in text form shall not be considered to meet the written form requirement.

The Customer undertakes to meet the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations.

The fulfilment of the Contract by top flow shall be subject to the fulfilment not being contrary to national or international export and import laws.

The contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).

Place of performance shall be Bad Saulgau. Exclusive place of jurisdiction shall be Ravensburg, provided each party is a merchant or a legal entity under public law or does not have a general place of jurisdiction in Germany.

If individual provisions are ineffective, this shall not affect the validity of the remaining provisions. The Parties to the contract shall endeavor to replace the ineffective provision with an effective one, which is as close as possible to the economic meaning of the ineffective provision. Section 139 German Civil Code (BGB) shall be waived.

In case of inconsistencies between the German language and English language version of these GTCs, the German language version shall prevail.

17 Editor

Editor (author) of these General Terms and Conditions is
top flow Beratungsgesellschaft für Informationstechnologie GmbH
Hauptstraße 100
88348 Bad Saulgau
Phone: 07581.20 295-0
Fax 07581.20 295-19
Headquarters: 88348 Bad Saulgau
Registration court Ulm, HRB 560690
Directors: Alexander Wiese, Johannes Bleicher