All offers, purchase contracts, contracts for work and services, license agreements, deliveries and services based on orders from our customers, regardless of whether you are an entrepreneur, merchant, a legal entity under public law or a special fund under public law (hereinafter referred to as “customer”) are subject to these General Terms and Conditions of top flow Beratungsgesellschaft für Informationstechnologie GmbH, based in Bad Saulgau (hereinafter referred to as “top flow“, “we” or “us”). All agreements made between customers and us are based on these terms and conditions, our offer and our order confirmation.
The version of the GTC valid at the time the contract is concluded shall apply.
We do not accept deviating terms and conditions of the customer. This shall also apply if we do not expressly object to their inclusion.
The type and scope of the deliveries and/or services to be provided by top flow (also “IT services”) are specified by the special conditions in the respective offer from top flow and in the service description. The presentation and advertising of IT services by top flow does not constitute a binding offer to conclude a contract.
A contract is only concluded when we accept the customer’s order by means of a specific declaration of acceptance or by delivering the ordered items.
We are entitled to make partial deliveries insofar as this is reasonable for the customer.
Proper data backup is the responsibility of the customer.
Standard software, namely SAP-based software solutions (“add-ons”) from top flow to support the customer’s business processes for a one-off fee, is provided to the customer for use as intended.
The scope of the intended use as well as the type and scope of the rights of use are specified in the respective offer from top flow and in the service description. SAP ERP is required for the intended use of the SAP add-on.
If no other rights of use are agreed in top flow ‘s offer or in the contract with the customer, top flow grants the customer the following rights of use to the standard software upon full payment of the IT services of top flow:
The customer is not permitted to grant sublicenses to third parties.
If the customer uses the standard software to an extent that qualitatively (with regard to the type of use permitted) or quantitatively (with regard to the number of licenses purchased) exceeds the acquired rights of use, he must immediately acquire the additional rights of use required for the permitted use. If he fails to do so, top flow will assert the rights to which it is entitled.
Copyright notices, serial numbers and other features serving to identify the program may not be removed or altered.
The customer is obliged not to convert standard software into another code form unless this is permitted under copyright law.
The source code cannot be the subject of an agreement.
The provision of the source code of the license object is not owed by top flow. Insofar as the source code is supplied for technical reasons, the customer is obliged to use the source code only for his own purposes and only for the purpose of maintaining the usability of the software and otherwise to store and handle the source code carefully as a trade and business secret of top flow and to protect it from unauthorized access by third parties.
The price specified in top flow ‘s offer is net, i.e. excluding any applicable VAT. Customs duties and similar charges are to be borne by the customer.
Our invoices are due for payment upon receipt of the invoice by the customer.
Services provided by top flow to maintain the operational readiness of the standard software, as well as the updating and expansion of the standard software (collectively “maintenance services”), are to be remunerated additionally (see section 7 below).
top flow keeps a copy of new, enhanced versions of the standard software available for the customer to download from the customer portal once they have been officially released by top flow. New program versions support the latest SAP ERP version and the S/4 HANA on premise version.
The customer has no right to the maintenance of discontinued previous versions.
Adaptations to the hardware and software environment are the responsibility of the customer, in particular with regard to a new version of the required SAP operating system or other software required for the application of new versions.
Defects occurring in standard software from top flow are divided into the following categories and response times:
The classification of the defects into the various categories is carried out by the customer at its reasonable discretion, taking into account (i) the effects that the relevant performance defect has on its business operations and (ii) the interests of top flow.
top flow will react to the notification of a defect by the customer within the following deadlines (“reaction period”):
If it is foreseeable that a critical or significant defect cannot be rectified within a reasonable period of time, top flow will provide a workaround.
top flow will remedy a defect reported by the customer at its discretion by one of the following measures:
top flow is entitled to provide services by means of remote maintenance or remote diagnosis as long as this does not represent a disadvantage for the customer.
top flow provides a hotline for reporting defects. This hotline can be reached at +49 7581 202 950 during service hours from Monday to Friday, excluding public and local holidays, at the Bad Saulgau site (Baden-Württemberg) between 8:00 am and 5:00 pm. Customers can also use an e-mail address (support@top-flow.de) to open a ticket.
The response periods applicable under these terms and conditions do not run outside service hours.
If it turns out that a defect reported by the customer does not actually exist or is not attributable to the subject matter of the contract, the customer is obliged to pay the costs incurred for rectifying the defect after receiving an invoice from top flow.
The customer shall pay for maintenance services at an annual flat rate of (x%) of the license list price of the software in accordance with the respective offer plus statutory VAT. The lump sum shall be invoiced in advance in the first month of each year.
The contract begins on the date of productive use (go live) of the software and initially runs for a fixed period of two years. The customer is obliged to inform top flow in text form of the date of productive use. It is then automatically extended for a further year if it is not terminated in writing by one of the parties with a notice period of three months to the end of the fixed term or an extension period.
If the contract term does not begin on the first day of the selected calculation period (calendar year), the remuneration for the period from the start of the contract (productive use) to the start of the first full calculation period is calculated on a pro rata daily basis and is due at the start of the contract term.
top flow fulfils the requirements specified in the offer or in the service description (scope of functions / specifications) by implementing, parameterizing, adapting or expanding the standard software, providing instructions and training and application support.
In the event of any application problems with the standard software, top flow supports the customer for a fee by providing brief answers to relevant questions by telephone, e-mail, fax or in writing.
As part of the provision of other troubleshooting, customization or support services, top flow shall issue a monthly invoice detailing all activities performed and expenses incurred.
The customer must support top flow ‘s IT services through the following acts of cooperation. He will provide top flow with the necessary information and data. In addition, the customer shall provide the necessary working materials, in particular access to all necessary systems to an appropriate extent.
The customer has a contact person as a fixed reference person for all matters relating to the project. This person is to be put in a position to either make all decisions relating to the project himself or to bring them about promptly. The customer shall also provide those employees whose special knowledge is necessary for the realization of the project.
If the customer does not fulfill his obligations to cooperate and top flow is therefore unable to complete its IT services in whole or in part within the agreed period, the agreed period shall be extended accordingly.
Dates for the provision of services on the part of top flow are only confirmed by the top flow contact person named in the offer or the management of top flow.
Appointments must be made at least in text form.
Delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions to telecommunications, pandemic etc.) or circumstances within the customer’s area of responsibility (e.g. failure to provide cooperation services on time, delays caused by third parties for which the customer is responsible etc.) are not the responsibility of top flow and entitle top flow to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up time.
The customer must notify top flow in text form of any requests for changes and additions (also referred to as CR requests) to the contractually agreed scope of the services to be provided by top flow.
top flow will respond to the CR request at short notice, at the latest within one calendar week, and will also inform the client whether it needs to examine the request in more detail. top flow will indicate in particular which changes, if any, will result from its point of view compared to the project content agreed until then, which effects this may have on the deadlines and how much time top flow needs in order to offer a detailed offer in terms of price and deadline for the execution of the change request.
If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain unchanged.
The dates affected by the amendment procedure may be postponed, taking into account the duration of the review, the duration of the vote on the amendment proposal and, if applicable, the duration of the amendment requests to be executed plus a reasonable lead time.
The customer shall bear the costs incurred as a result of the change request. This includes in particular the examination of the change request and the preparation of a change proposal. The expenses will be charged by top flow according to the agreed hourly rates (or according to an individually prepared offer).
The service shall be accepted uniformly. This presupposes that the software has been delivered, installed by the customer, extensions have been programmed by the customer, training of the key users has been carried out, if agreed, and the software has been sufficiently tested by the customer. Agreement shall be reached in good time on the test procedures; if necessary, the contact persons named in the project or their deputies shall make a binding decision on this.
The completion of the test phase must be recorded in minutes. top flow and the customer jointly agree on a date in text form for the acceptance. Other defects (priority 3) may exist at this time.
The defect classification according to section 6 of this document applies.
Upon successful completion of the trial operation, at the latest when the software is used in the productive area (Go Live), the service shall be deemed accepted without the need for a declaration by the customer. The customer can only prevent automatic acceptance by making a prior written declaration that there is an obstacle to acceptance.
The contractual partners document the processes of the trial operation.
top flow guarantees the agreed quality of IT services and that the customer can use the standard software without infringing the rights of third parties. The warranty does not apply to defects resulting from the fact that top flow software is used in a hardware and software environment that does not meet the underlying requirements or for changes and modifications that the customer has made to the software without being authorized to do so.
In the event of a defect in IT services, top flow is initially entitled to supplementary performance, i.e. at its own discretion to remedy the defect (“rectification”) or replacement delivery. In the case of defects of title, top flow will, at its own discretion, provide the customer with a legally unobjectionable option to use the software from top flow or modify it in such a way that no third party rights are infringed.
top flow is entitled to provide the warranty on the customer’s premises. top flow also fulfills its obligation to rectify defects by making updates with an automatic installation routine available for download on its homepage and offering the customer telephone support to solve any installation problems that may arise.
The customer’s right to reduce the price or withdraw from the contract at his discretion in the event that the repair or replacement delivery fails twice remains unaffected. There is no right of withdrawal in the case of insignificant defects. If the customer claims damages or compensation for futile expenses, top flow is liable in accordance with section 14.
With the exception of claims for damages, warranty claims due to material defects expire after two years. The limitation period begins after notification and activation of the access data for the download area.
Clause 14 shall apply to claims for damages and claims for reimbursement of futile expenses.
top flow has unlimited liability
In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), the liability of top flow GmbH shall be limited to the amount of damage that is foreseeable and typical for the type of transaction in question, but to a maximum amount of five million euros.
There is no further liability on the part of top flow GmbH.
The above limitation of liability also applies to the personal liability of employees, representatives and organs of top flow GmbH.
“Confidential information” is all information and documents of the other party that are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships and know-how, as well as – for top flow –all work results.
The parties agree to maintain confidentiality about such confidential information. This obligation shall continue for a period of 5 years after termination of the contract.
Such confidential information is exempt from this obligation,
The parties shall only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to the confidentiality obligations of this agreement. Furthermore, the parties shall only disclose the confidential information to those employees who need to know it for the execution of this contract and shall also oblige these employees to maintain confidentiality to the extent permitted by labor law for the period after their departure.
The customer may not transfer claims from a contract with top flow to a third party without the consent of top flow. The customer may only offset undisputed or legally established claims.
Amendments and additions to a contract must always be made in writing. Electronic documents in text form do not fulfill the written form requirement.
The customer shall comply with 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 fulfillment of the contract on the part of top flow is subject to the proviso that there are no obstacles to fulfillment due to national and international regulations of export and import law.
A contract shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention).
The place of performance is Bad Saulgau. The exclusive place of jurisdiction is Ravensburg, provided that each party is a merchant or legal entity under public law or has no general place of jurisdiction in Germany.
Should individual provisions be invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavor to replace the invalid provision with a valid provision that comes as close as possible to the economic meaning of the invalid provision. § Section 139 BGB is waived.
The publisher (issuer) 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
info@top-flow.de
Registered office: 88348 Bad Saulgau
Register court: Ulm, HRB 560690
Managing directors: Alexander Wiese, Johannes Bleicher
top flow GmbH
