General Terms and Conditions
Structure and Definitions
These GTC are structured in the following chapters:
Provision with respect to the qibb Platform and Support Services
Provision with respect to the Related Services
In these qibb GTC all capitalized terms shall have the meaning as defined as follows:
means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a Party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
means the Order Form including its Annexes (e.g these General Terms and Conditions (GTC)).
means any enclosure to the Order Form.
means any information disclosed by the Disclosing Party (or its Affiliates) to the Receiving Party, or which is received by the Receiving Party under or in connection with the Agreement and which relates to the Disclosing Party (or its Affiliate), and that is marked confidential, that the Receiving Party knows or reasonably ought to know is confidential, or which is of its nature confidential, including (i) all business logic, methods, algorithms, concepts and ideas of the Disclosing Party or its Affiliates which are disclosed to or received by the Receiving Party (including the functionality implemented on, and the user interface of, the qibb Platform, and any documentation of the same), (ii) any copies of the software and the Documentation, which is in each case the Confidential Information of Techtriq, (iii) the terms of the Agreement.
means a legal entity commissioning the Services either (i) as system integrator for an End Customer who is intending to use the Services or (ii) for its own use and benefit.
means data (such as but not limited to personal data), workflows, solution designs and (third party) apps and other content implemented by the Customer on the qibb Platform.
means material deviations of a Service from the Service Description contained in the Order Form and/or its Annexes.
means tangible or intangible results arising out of the provision of Related Services. Deliverables (if any) shall be specified in the Order Form and/or its Annexes.
means a Party to the Agreement which (or whose Affiliate) discloses or makes available, directly, or indirectly, Confidential Information.
means the electronic customer-facing documentation of the qibb Platform generally made available by Techtriq to its Customers and prospective Customers from time to time, whether provided as a user manual, an online “knowledge base” or in a similar format; Techtriq may amend the Documentation at any time provided that it makes such updated version available to the Customer (including by publishing it online).
means the remuneration for the use of the qibb Platform as well as the remuneration for the Support Services and the Related Services (if any). Fees shall be set forth in the Order Form.
means the first time period the Agreement is in effect.
Intellectual Property Rights
means patents, trademarks, rights in respect of logos and get up, trade names, designs, domain names, copyright, database rights, semiconductor topography rights, utility models, other intellectual or industrial property rights and any rights therein, in each case whether registered or unregistered and including applications or rights to apply for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world including any such rights which may now or in the future subsist.
Open Source Software
means software that is generally available in source code form and that is distributed under a license which, by its terms, (i) does not prohibit licensees of such software from using, licensing or otherwise distributing or making available such software in source code form, (ii) does not prohibit licensees of such software from making modifications or derivative works thereof, and (iii) does not require a royalty or any other payment for the licensing or other distribution or making available, or the modification or the creation of derivative works, of such software (other than a reasonable charge to compensate a supplier for the cost of providing a copy thereof).
Open Source Software License
means a certain standardized license agreement governing the licensing of Open Source Software such licenses as, but not limited to, the GNU General Public License, GNU Lesser General Public License, New BSD License, MIT License, Common Public License, and other licenses approved as Open Source Software Licenses under the Open Source Definition of the Open Source Initiative.
means a document signed by both Parties stipulating at least the scope of the Services, the Fees, and any supplemental provisions to these GTC.
means the application management and orchestration platform made available by Techtriq on a “platform as a service” basis, as further described in the Order Form and its Annexes.
means a Party to the Agreement which (or whose Affiliate) receives or obtains, directly or indirectly, Confidential Information.
means training, implementation assistance and other consultancy services provided to the Customer by Techtriq set out on the Order Form. Related Services comprise Deliverables described in the Service Description.
Prolongated term of an Agreement.
comprises the provision of the qibb Platform, the Support Services as well as the Related Services.
means a reimbursement for Techtriq’s culpable non-compliance with agreed Service Levels. Service Credits shall only apply if explicitly stipulated in the Service Description.
means the specification of the Services published on the qibb website.
means all criteria and parameter set forth in the Service Description to measure the performance and quality of the Services.
means all activities and tasks performed by Techtriq to support the Customer’s operational use of the qibb Platform.
means the Initial Term and any Renewal Term.
Subject of these GTC, Modifications of these GTC
The following GTC apply to all Services, in particular the provision of the qibb Platform to Customer
Deviating, contradictory or supplementary terms and conditions of the Customer will only become part of the Agreement if and insofar as Techtriq expressly agrees to their validity in writing.
Techtriq may unilaterally amend these GTC by prior written notice to the Customer where that amendment: (a) is required by a change in applicable law; (b) is required to ensure the Parties are compliant with applicable law; (c) is required to comply with the terms and conditions applicable to third party products or other third party software integrated in the qibb Platform or relevant for the provision of the qibb Platform; or (d) is required to ensure the integrity or information security of the qibb Platform. Amendments to these GTC shall be deemed as accepted by the Customer in the event the Customer does not object to the amendments in writing within six weeks after issuance of the written notice.
General Provisions relating to Techtriq’s Responsibilities and Obligations
While an Agreement is effective Techtriq shall
provide the Customer and – if applicable – its respective End Customer access to the qibb Platform;
grant to the Customer and – if applicable - its respective End Customer non-exclusive, royalty-free, non-transferable and non-sublicensable rights to use the qibb Platform, its accompanying Documentation and Deliverables (if any) solely (i) for the business purposes of the Customer or (ii) if the Customer acts as a system integrator for the business purposes of the respective End Customer;
provide Support Services as described in the Order Form and its Annexes;
provide Related Services (if any) as described in the Order Form and its Annexes.
Techtriq shall provide all Services in accordance with laws and regulations generally applicable to Techtriq.
Since all Services are standardized products and services, Techtriq is not responsible for the compliance of the Services with the industry-specific, country-specific, statutory, or regulatory requirements applicable to the Customer and/or its End Customer (if any).
Within the performance of its Services Techtriq may rely on the correctness of communications, instructions, approvals, or comparable declarations of the Customer and is not obliged to double-check them. Nevertheless, Techtriq shall advise of obvious errors, omissions, and inconsistencies in the Customer’s cooperation obligations.
In the event Techtriq uses subcontractors (see section Use of Subcontractors) Techtriq remains liable for the acts and omissions of its subcontractors under or in connection with the Agreement as if those acts and omissions were the acts and omissions of Techtriq itself.
General Provisions relating the Customer’s Responsibilities and Cooperation Obligations
The Customer shall ensure that the Services are suitable for its own or its respective End Customer’s business purposes, in particular the Customer is responsible that the Services meet the industry-specific, country-specific, statutory, or regulatory requirements applicable to the Customer and/or its End Customer (if any).
The Customer shall provide all cooperation and assistance required for Techtriq to perform its Services in compliance with the Service Description. The Customer may instruct its service providers, vicarious agents, and the respective End Customer correspondingly.
The Customer shall make available any cooperation and assistance of third parties appointed by the Customer which are necessary for Techtriq’s Services or which are connected therewith and shall coordinate these cooperation and assistance of third parties with Techtriq as the single point of contact.
To the extent that Techtriq is prevented from providing its Services due to the untimely or otherwise insufficient provision of cooperation and assistance, Techtriq shall not be responsible for any consequences arising therefrom, in particular delays and damages or penalties resulting out of delays.
The deadlines set for the provision of the agreed Services shall be postponed for a reasonable time period, but at least by the period equal the time of absence of the relevant cooperation and assistance plus a reasonable period of time for re-planning the resources of Techtriq’s employees, in particular taking into account the binding allocation of these employees to other projects as well. The Parties shall adapt any project plans or timetables by mutual agreement.
The Customer shall reimburse Techtriq for any additional expenses and waiting times incurred due to the late or insufficient provision of cooperation and assistance according the daily and hourly rates stipulated in the Order Form or its Annexes. Furthermore, Techtriq shall be entitled to claim any additional expenses and damages incurred due to the late or insufficient provision of cooperation and assistance.
If the Customer does not provide cooperation and assistance despite a reasonable period of grace, Techtriq shall be entitled to initiate the escalation procedure pursuant to section Parties' Cooperation/Governance (3) and, after the escalation procedure has failed, shall be entitled to terminate the Agreement for good cause if the continuation of the provision of Services is unreasonable for Techtriq due to the lack of sufficient cooperation and assistance.
Use of Subcontractors
If Techtriq plans to use a subcontractor, Techtriq shall inform the Customer in advance and provide the Customer with sufficient information about the subcontractor's professional qualifications, including information about the subcontractor's expertise, and its human and financial resources.
The Customer may reject a subcontractor but only based on good cause. In particular, the following events may be deemed as good cause:
The use of the subcontractor would be not in compliance with applicable laws, or
The Customer or its End Customer can reasonably demonstrate substantially negative experience with the respective subcontractor.
This right of rejection shall apply mutatis mutandis to the exchange of subcontractors.
All subcontractors listed in the Order Form or its Annexes shall be deemed as approved by Customer.
Techtriq shall ensure that its contractual agreements with its subcontractors are in compliance with the terms of the Agreement.
The Parties agree that the scope of any Agreement can only be achieved through close cooperation and continuous coordination.
The Parties shall name contact persons and their proxies in the Order Form or its Annexes who shall be responsible for either Party’s compliance with the contractual obligations and the performance of the Services.
In the event the Parties disagree within their cooperation, the Parties shall attempt to resolve any disputes in an amicable manner.
In the event of an occurring dispute, the contact person of the Party that assumes such dispute shall inform the responsible contact person of the other Party at least in electronic format about the background of the dispute and its assessment thereof. The communication shall contain all relevant facts and the nature and extent of the dispute. As a result of the communication, the Parties will discuss the dispute in good faith through their respective responsible contact persons. Within a reasonable time period, generally fifteen (15) business days, they shall attempt to find a mutually acceptable solution which takes into account the interests of both Parties. This solution shall be documented at least in electronic format by the Parties.
If a dispute cannot be resolved in accordance a., each Party may notify the management of the other Party and demand escalation to the management. Management, through its respective representatives, shall cooperate in good faith for a reasonable time period, usually another fifteen (15) business days, in order to resolve such dispute. A solution that has been worked out and adopted by mutual agreement shall at least be documented in electronic format. If the dispute cannot be resolved within the agreed period, even at management level, each Party shall be entitled to declare the escalation procedure to have failed. This declaration must be made at least in electronic format.
General Provisions relating to Fees and Payment Terms
The Customer undertakes to pay Techtriq the agreed monthly Fees plus statutory taxes such as VAT (if applicable) for the provision of the qibb Platform and the Support Services. If Related Services are commissioned by the Customer with respect to the provision of the qibb Platform, these Related Services shall be invoiced separately according to the Fees comprised in the Order Form.
Objections to an invoice must be raised in writing by the Customer within a period of four (4) weeks after receipt of the respective invoice to the contact person indicated on the invoice. After expiration of the aforementioned period, the invoice shall be deemed to have been approved by the Customer.
Techtriq may increase the Fees specified in the Agreement if circumstances beyond Techtriq's control increase the costs by more than 5% during the Term. In this case, Techtriq shall first give the Customer one (1) months’ notice of the increase. The increase of the Fees may only be made in the same proportion as the costs of providing the Services for Techtriq have actually increased. The increase of the Fees will be effective after the end of the announcement period. The Customer has the right to terminate the Agreement for good cause at the time of the announcement of an increase if the increase notified to him exceeds 15% of the originally agreed Fees.
Third Party Right Infringement (“Rechtsmängelhaftung”)
Techtriq shall defend the Customer and indemnify the Customer against claims in any legal proceeding (including reasonable attorney’s fees) to the extent arising from an allegation that the Customer’s or its End Customers’ (if any) use of the qibb Platform or a Service in accordance with the Agreement infringes a third party's Intellectual Property Rights and Techtriq is responsible (“Vertretenmüssen”) for such infringement.
The indemnification obligation set forth above shall be based on the following prerequisites:
The Customer shall promptly notify Techtriq in writing of any allegation(s) that preceded the legal proceeding (if any) and cooperate reasonably with Techtriq to resolve the allegations and the legal proceeding.
To the extent permitted by applicable law the Customer shall tender the sole control of the legal proceeding to Techtriq, subject to the following: (i) the Customer may appoint its own non-controlling counsel; (ii) any settlement requiring the Customer to admit liability, pay damages or take (or refrain from taking) any action, shall require the Customer’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
If Techtriq reasonably believes the qibb Platform or a Service might infringe a third party’s Intellectual Property Right, then Techtriq may, at its sole option and expense: (i) procure the right for the Customer to continue using the qibb Platform and the respective Service; (ii) modify the qibb Platform and the respective Service to make them non-infringing without materially reducing their functionality; or (iii) replace the qibb Platform and the respective Service with a non-infringing, functionally equivalent alternative. If Techtriq does not believe the remedies set forth above are commercially reasonable, then Techtriq may terminate the Agreement for good cause.
The limitations of liability set forth in section Liability (“Haftung”) and Force Majeure shall apply to indemnification obligations set forth in this section.
To the extent permitted by applicable law this section states the Customer’s sole and exclusive remedy under the Agreement for any third party allegations of an infringement of Intellectual Property Rights.
Liability (“Haftung”) and Force Majeure
Techtriq shall be liable without limitation pursuant to applicable laws in the following circumstances:
intentionally (“vorsätzlich”) caused damages or
grossly negligent (“grob fahrlässig”) caused damages, or
injury to life, body, or health resulting from either intent (“Vorsatz”) or negligence (“Fahrlässigkeit”),
product liability according to the German Product Liability Act (“Produkthaftungsgesetz”).
In the event none of the circumstances set forth in section Liability (“Haftung”) and Force Majeure (1) applies, however Techtriq breaches material contractual obligations slightly negligent Techtriq’s aggregate liability shall be limited to the contractual foreseeable damage. A material contractual obligation is an obligation which enables the execution of the respective agreement and on which the Customer regularly relies.
Furthermore, Techtriq’s strict liability (“verschuldensunabhängige Haftung“) for Defects of the qibb Platform, which are present at the time an Agreement is made effective, shall be excluded.
Both Parties shall take commercially reasonable steps to mitigate the other Party’s liability.
Neither Party shall be liable to the other Party for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such Party’s reasonable control, including but not limited to labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
Term and Termination
An Agreement shall become effective when the Order Form is signed by both Parties. The Initial Term of the Agreement is specified in the Order Form.
The Parties shall be entitled to terminate the Agreement for convenience with written notice until the end of the Initial Term. The exact period is specified in the Order Form. If there is no term specified in the Order Form, a term of three (3) months applies. Subsequently the Agreement shall renew for additional one-year Renewal Terms and may be terminated for convenience by either Party with the same term of written notice until the end of each Renewal Term.
The Parties shall be entitled to terminate the Agreement for good cause (“außerordentliche Kündigung”). However, in all possible cases justifying a termination for good cause, the respective Party shall only be entitled to a termination for cause if the Party affected by a breach of contract has requested in writing the Party infringing its contractual obligations to remedy the specific breaches of contract which are to be described in detail and the Party infringing its contractual obligations has not remedied the breaches named therein within a reasonable period of at least thirty (30) calendar days after receipt of the respective request letter and the escalation procedure provided for in section Parties’ Cooperation/Governance (3) has failed. To the extent that a Party has the right to a termination for cause, the Party entitled to a termination may exercise such right only within one (1) month after the failure of the escalation procedure. If the overall consideration of a series of events entitles a Party to terminate for cause, the period shall be calculated from the last of these events.
Techtriq shall be entitled to terminate the Agreement for good cause if the Customer fails to settle due payments for a period of at least three (3) months in total and Techtriq therefore cannot reasonably be expected to continue the contractual relationship.
Any notice of termination shall be submitted in writing, whereas the exchange of scanned documents shall be sufficient.
Upon termination of the Agreement, all rights and licenses granted shall cease and the Customer and its End Customer (if any) are not permitted to make further use of the Services. Upon termination Techtriq shall make Customer Content implemented on the qibb Platform available either for retrieval or – if retrieval is not possible – for documentation in standard industry formats. The Customer shall be obligated to retrieve Customer Content reasonably in advance before the termination becomes effective.
Upon termination of the Agreement each Receiving Party shall return to the Disclosing Party or (at the Disclosing Party’s election) use reasonable efforts to destroy all copies of the Disclosing Party’s Confidential Information; and upon request by the Disclosing Party, give to the Disclosing Party a certificate signed by an officer of the Receiving Party that it has done so. The Receiving Party’s right to keep copies to fulfil its statutory archival obligations shall remain unaffected.
Upon termination Techtriq shall provide reasonable termination assistance requested by the Customer to facilitate an orderly phase-out, including but not limited to (data) migration or documentation of Customer Content implemented in the qibb Platform. The Customer shall pay a reasonable compensation for such termination assistance based on the Fees set forth in the Order Form.
Data Protection and Confidentiality
The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and, except with the prior written consent of the Disclosing Party, shall:
not use or exploit the Confidential Information in any way except for the purpose of exercising its rights and performing its obligations under the Agreement;
not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by the Agreement; and
apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information (and which shall in any event be no less stringent than the measures and care which it is reasonable to expect of a person operating in the same sector in the same circumstances).
The Receiving Party may disclose the Disclosing Party’s Confidential Information to those of its agents, officers, employees, and professional advisers who need to know it in connection with the fulfilment of the Agreement, provided that:
it informs each such person of the confidential nature of the Confidential Information before disclosure; and
it procures that each such person shall comply with this section as if it were the Receiving Party,
and it shall be liable for the failure of any such person to comply with this section.
The Receiving Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by applicable law, by any governmental or other regulatory authority with jurisdiction over the Receiving Party, or by a court of competent jurisdiction, or under the rules of a relevant securities exchange, provided in each case that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and it takes into account the reasonable requests of the Disclosing Party in relation to the content of that disclosure.
Each Party shall comply with data protection law to the extent applicable to it. If required by applicable law the Parties enter a DPA compliant with Art. 28 GDPR.
Each Party shall provide reasonable assistance and information to the other Party upon written request in relation to any request, complaint or query made by a data subject or by any supervisory authority with regard to data subject’s personal data processed by using the qibb Platform or the Services.
Techtriq collects data on the Customer's use of the qibb Platform, such as the usage times of individual software components, errors occurring during use (analysis data). This is stored and processed by Techtriq exclusively in an anonymised form, so that it is not possible to draw conclusions about individual Customers. Techtriq uses the analysis data to improve its services and support to the Customer.
Applicable Law, Place of Jurisdiction, Place of Performance
The Agreement shall be governed by German law, excluding the provisions of the UN Convention on the International Sales of Goods (CISG).
Exclusive place of jurisdiction for all disputes arising from or in connection with the Agreement shall be Cologne.
The place of performance shall be Cologne.
Techtriq shall be entitled to assign the rights and obligations under the Agreement to an Affiliate without the Customer’s prior consent. Techtriq will inform the Customer beforehand about such assignment.
Communication via email is sufficient to fulfil the writing requirement set forth in these GTC, however this shall not apply to the termination of the Agreement and any claim for indemnification or damages.
Oral side agreements have not been made. Amendments, supplements, and additions to the Agreement shall only be valid if they are agreed in writing between the Parties. This shall also apply in respect of an annulment of this written form requirement.
The Parties are independent contractors. Consequently, the provisions of the Agreement shall not, under any circumstances, be interpreted as creating any association, relationship of agency or partnership between the Parties. Neither Party may bind the other in any manner whatsoever or in favour of anyone whomsoever, except in accordance with the Agreement.
If any provision of the Agreement is held to be invalid or unenforceable for any reason, that provision shall, if possible, be adjusted rather than voided, in order to achieve a result which corresponds to the fullest possible extent to the intention of the Parties. The nullity or adjustment of any provision of the Agreement shall not affect the validity and enforceability of any other provision of the Agreement.
Provisions with respect to the qibb Platform and Support Services
Provision of the qibb Platform
Techtriq enables the Customer to use the qibb Platform with the functionalities described in the Service Description during the Term.
The Customer’s access to the qibb Platform is browser-based via the Internet. The Order Form and its Annexes comprise the qibb Platform’s technical availability.
The Service Description exclusively governs the Support Services and Service Levels (including response times and resolution times) provided by Techtriq under the Agreement.
Techtriq’s Support Services
Techtriq shall use reasonable efforts to provide the Support Services described in an Annex to the Order Form during its normal service hours.
The Service Levels and Service Credits set forth in the Annexes to the Order Form shall apply.
Technical Protective Measures
Techtriq is - as far as legally permissible - entitled to take technical measures in order to control and/or ensure the contractual use of the qibb Platform by the Customer and its End Customer (if any), e.g. license keys, dongles, license servers or logging of the respective End Customer's analysis data.
The Customer undertakes not to deactivate, alter and/or circumvent such measures or attempt to do so.
Modifications of the qibb Platform
Techtriq reserves the right to modify the functionalities of the qibb Platform or to offer deviating functionalities, provided that this is objectively necessary, and the modification, further development or deviation is reasonable for the Customer and its End Customer (if any).
A modification, further development or deviation is objectively necessary in particular if
this is due to technical further developments (e.g., in the case of updating the system environment and infrastructure) or technical innovations;
statutory changes or innovations make it necessary to adapt the qibb Platform;
Techtriq must implement mandatory requirements of its subcontractors;
the qibb Platform contains components from third party manufacturers and these components are not available to Techtriq, are no longer available or are only available in a modified form, without this being due to circumstances for which Techtriq is responsible;
the modification serves the modernization or optimization of processes and thus also the creation of competitive advantages;
the functionalities of the qibb Platform are replaced in whole or in part by functionalities of equal or higher value and the agreed service quality remains essentially unchanged;
Techtriq must implement an official or regulatory order.
Access and License Grant, Usage Restrictions
For the Term, Techtriq grants the Customer and the respective End Customer (if any) the non-exclusive and non-transferable and non-sublicensable right to use the qibb Platform in accordance with the applicable specification set forth in the Service Description. Beyond that, Techtriq is not obligated to provide a certain quality of the qibb Platform, in particular not the suitability for a specific purpose of use or application for the Customer or its End Customer (if any).
If Techtriq provides updated versions of the qibb Platform during the Term or makes changes with regard to them, the provisions of this section Access and License Grant, Usage Restrictions shall also apply to updated versions.
The qibb Platform is a web-based service. The Customer may neither copy nor reproduce the software components contained in the qibb Platform on its or its End Customer’s systems.
The Customer and the End Customer are not permitted to
gain access to unauthorised areas of the qibb Platform;
use programs to collect data, extract, access, copy, or control the qibb Platform outside of the documented API endpoints;
decompile, disassemble, reengineer, or reconstruct the source code, any software or algorithms used;
test or investigate the vulnerability of the qibb Platform;
intentionally use any device, software or routine that interferes with any functionality, feature or usability of the qibb Platform; or
otherwise interfere with the proper functioning of the qibb Platform.
The Customer and the End Customer are not permitted to upload, communicate or distribute through the qibb Platform any content or material:
that is unlawful, defamatory, obscene, pornographic, abusive, harassing, or which tends to promote discrimination against any person or class of persons on the basis of a characteristic protected by applicable law; or
which infringes or is reasonably likely to infringe the Intellectual Property Rights or other rights of any person, or misappropriates or misuses the trade secrets of any person, or which is likely to result in a breach of any obligation of confidence owed to any person;
The Customer and the End Customer are not permitted to use or to attempt to use or misuse the qibb Platform in any way that is criminal or otherwise unlawful in any relevant jurisdiction.
The Customer is obliged to prevent unauthorised access to the qibb Platform and the software contained therein by third parties by taking appropriate precautions.
Without prejudice to its other rights and remedies and subject to prior written notice including a reasonable grace period, Techtriq reserves the right to suspend the Customer’s or its End Customer’s (if any) access to the qibb Platform if Techtriq reasonably believes that it is necessary to stop or to prevent breach of section Access and License Grant, Usage Restrictions or to protect the integrity of the qibb Platform or the legitimate interests of Techtriq or other users of the qibb Platform.
Open Source Software
The qibb Platform may include Open Source Software which is licensed under the terms of the Open Source Software License that accompanies such Open Source Software. The applicable Open Source Software Licenses are listed either in the Documentation or a repository made available by Techtriq.
The use of the Open Source Software is exclusively governed by the provisions of the applicable Open Source Software License.
Customer’s Specific Responsibilities and Cooperation Obligations
The Customer undertakes that the Customer or its End Customer (if any) do not place any illegal content on the qibb Platform which violates laws, official requirements, or the rights of third parties.
The Customer shall ensure that the Customer or its End Customer (if any) comply with the system requirements set forth in the Service Description. Techtriq only owes the agreed technical availability in accordance with the Service Description if the system requirements are met.
The Customer is obliged to check its or its End Customer’s data and information for viruses or other harmful components before input and to use state-of-the-art virus protection programs for this purpose.
In order to access the qibb Platform, the Customer will be provided with user IDs and passwords by Techtriq. The Customer and the respective End Customer (if any) are obliged to keep these user IDs and passwords strictly confidential and may not make them accessible to third parties. Employees of the Customer or the respective End Customer (if any) to whom user IDs and passwords are disclosed shall be obliged to protect the access data known to them from unauthorised access by third parties. The Customer and the respective End Customer (if any) are liable for the compliance with these obligations on the part of their employees.
The Customer Content implemented by the Customer on the qibb Platform may be protected by Intellectual Property Rights and subject to data protection law. The Customer hereby grants Techtriq the right to make the Customer Content accessible to the Customer when the Customer retrieves them via the Internet, and in particular to copy and transmit the Customer Content for this purpose, and to reproduce the Customer Content for the purpose of data backup.
When the Agreement is terminated the Customer shall be obligated to retrieve any Customer Content and may document Customer Content properly and sufficiently in advance before a termination becomes effective. If necessary, Techtriq shall provide reasonable termination assistance as set forth in section Term and Termination (6).
Techtriq is entitled to audit the Customer exclusively for the purpose of verifying the Customer's or its respective End Customer’s use of the qibb Platform in compliance with the Agreement. However, such audit may be performed no more than once every twelve (12) months, unless Techtriq has another reasonable but equally effective way of monitoring the Customer's or the respective End Customer’s use of the qibb Platform in accordance with the Agreement. Such audit may only be undertaken by an independent auditor who is subject to a professional or comparable obligation to confidentiality. The auditor may provide Techtriq with information only to the extent necessary for Techtriq to enforce its industrial or Intellectual Property Rights. Techtriq shall bear the costs of such an audit unless the audit reveals that the Customer or the End Customer (if any) has infringed Techtriq' industrial or Intellectual Property Rights to a considerable degree; in the latter case, the Customer shall bear the costs of the audit, including all expenses incurred by Techtriq.
The Customer shall cooperate with Techtriq in this respect, in particular the Customer shall (a) upon Techtriq's request prepare a license report, (b) allow the auditor to inspect the qibb Platform during regular business hours and with reasonable notice in order to monitor, assess and verify its use. While undertaking the audit, both Parties shall comply with the applicable data protection laws. The Customer shall ensure that no personal data is transmitted to the auditor and/or Techtriq in connection with the audit. If and insofar as the audit cannot be carried out without transmission of personal data to the auditor, the Customer shall take the necessary measures to ensure that only the personal data required for the performance of the audit are transmitted.
Malperformance and Defects (“Sachmängelhaftung”)
Techtriq warrants (“gewährleistet”) that during the Term of the Agreement, the qibb Platform and all updated versions thereof will perform materially in accordance with the Service Description (or any updated versions thereof) published via the qibb website.
The Service Description published via the qibb website shall not be deemed as guarantees (“Garantien”) unless explicitly and separately agreed between the Parties in writing.
Any malperformance or Defect must be notified by the Customer at least in electronic format, whereas the notification shall include a comprehensible description of the alleged malperformance or Defect. The Customer’s statutory obligations to inspect the qibb Platform and the Support Services and give notices of Defects shall remained unaffected.
The Customer shall be entitled to the following remedies as set forth in the Service Levels:
Reduction of the Fees for the provision of the qibb Platform and the Support Services;
The Service Credits (if any) set forth in the Service Description;
Termination for good cause as set forth in section Term and Termination.
The Customer’s claims for damages (if any) pursuant to the statutory provisions shall remain unaffected, however the limitations set forth in section Liability (“Haftung”) and Force Majeure shall apply.
The Service Levels set forth in the Service Description shall remain unaffected.
Provisions with respect to the Related Services
General Scope of the Related Services
Techtriq will perform the Related Services for the Customer as set forth in the Order Form, subject to the terms and conditions of these GTC. The actual scope of the Related Services is described in the Order Form.
Related Services may consist of
training and knowledge transfer with respect to the qibb Platform;
supplemental implementation services such as “how-to” consultancy services with respect to (i) Customer Content, in particular workflows and solution designs implemented by the Customer on the qibb Platform, (ii) the integration of (third party) apps and (iii) implementation of solution designs;
go-live support as well as post-go-live support;
development of additional standardized features to the qibb Platform pursuant to the feature process set forth in the Service Description;
support with the customization of the standardized features of the qibb Platform (if any).
Techtriq will not provide any individual software development services.
Published via the qibb website contains a Service Description which states the general scope of the Related Services and the responsibilities of the Parties. To the extent necessary, the Service Description may provide a project plan with specific milestones for the Related Services to be rendered by Techtriq.
Techtriq may, at its own discretion, perform the Related Services on its own premises or via remote access.
Personnel that Techtriq assigns to perform the Related Services will be professional and experienced in the performance of the relevant Related Services. If the Customer, in its reasonable judgement, believes that personnel assigned to the Related Services does not meet these qualification requirements, Techtriq will in good faith discuss alternatives and will replace its personnel as reasonably necessary.
Where expressly stated in an Order Form, Techtriq will not remove Personnel named in the Order Form without the prior written permission of the Customer which shall not be refused but for reasonable grounds.
Responsibilities of the Customer and Customer’s Specific Cooperation Obligations
The Customer is obligated to acquire the certifications required for its personnel to implement solution designs on as well as use the qibb Platform.
The Customer acknowledges that timely access to applicable documents, information, resources, personnel, equipment, or facilities is essential for the provision of the Related Services.
The Customer agrees to provide such access and to reasonably cooperate with Techtriq during the provision of the Related Services. Techtriq will have no liability for any delay or deficiency of the Related Services to the extent resulting from the Customer’s breach of its obligations under this section.
License Grant to Deliverables (if any)
With respect to any Deliverables the Customer is exclusively granted the usage rights granted with respect to the qibb Platform.
The provisions in Section Access and License Grant, Usage Restrictions shall apply correspondingly to rights and licenses regarding the Deliverables.
Change Requests and Change Orders
The Customer may submit written requests to Techtriq to change the scope of the Related Services under an existing Agreement. Techtriq shall promptly notify the Customer if it believes that the requested change requires an adjustment to the Fees, schedule, assumptions, or scope for the performance of the Related Services. Neither Party is bound by a change request unless agreed in writing by both Parties pursuant to a mutually executed amendment or change order to the Agreement.
Techtriq shall continue to perform the Related Services pursuant to the existing Agreement unless the Parties mutually agree to such amendment or change order.
The Parties agree that only the Customer shall be responsible for an acceptance of the implementation of Customer Content and customization (if any) of the qibb Platform either by itself or by its respective End Customer.
If no other deadline is specified in the Order Form and its Annexes, the Customer shall accept all Deliverables (if any) within ten (10) business days of submission for acceptance, provided that the Deliverables are free of material Defects. The Deliverables are free of material Defects if they essentially fulfill the acceptance criteria agreed in the Order Form. If no specific acceptance criteria have been agreed, Deliverables shall be free of material Defects if they essentially meet the quality described in the Service Description. Insignificant deviations from acceptance criteria and/or the Service Description shall not be deemed to be material Defects and shall not prevent acceptance; Techtriq shall, however, remedy such Defects within a reasonable period of time at its discretion by remediation of Defects or replacement.
If material Defects exist, the Customer shall notify Techtriq of these in writing within the acceptance period. If the Customer does not inform Techtriq in due form of any Defects that could prevent acceptance by the end of the acceptance period, the Deliverables in question shall be deemed to have been accepted. The same shall apply if the Customer notifies Techtriq in due form and time of any Defects that prevent acceptance, Techtriq submits the relevant Deliverables to the Customer again as "Defects remedied" and the Customer does not object within five (5) business days; however, this consequence shall occur at the earliest on expiration of the acceptance period.
Techtriq warrants (“gewährleistet”) that: (i) each Related Service and Deliverables (if any) shall operate in substantial conformity with the applicable Service Description comprised in the Order Form and (ii) Related Services and Deliverables (if any) shall be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the Order Form.
This warranty shall not apply if the Defect or non-conformity was caused by misuse of the Related Service or Deliverables (if any), modifications to the Related Service or Deliverables (if any) by the Customer or any third-party, or third-party hardware, software, or services used in connection with the Related Service or Deliverable (if any).
If Techtriq is not able to correct any reported Defect or non-conformity with the warranties set above within reasonable time, either Party may terminate the Agreement for good cause.