As at 23.11.2023
1.1 These General Terms and Conditions (hereinafter: Terms and Conditions or GTC) apply to the provision of consulting and other services by PAILOT GmbH (hereinafter: PAILOT).
1.2 Conflicting, supplementary or deviating provisions of the Customer shall not become part of the contract, even if PAILOT has not separately objected to them. In the event of an objection, PAILOT reserves the right to withdraw the offer without any claims of any kind being asserted against PAILOT. The Customer's reference in the form to its own terms and conditions is hereby expressly rejected.
1.3 These Terms and Conditions also apply to the pre-contractual relationship between PAILOT and the Customer (hereinafter jointly referred to as the Parties). Items (e.g. proposals, concepts, test programs) provided to the customer by PAILOT prior to the conclusion of a contract are the intellectual property of PAILOT; they may not be reproduced or made accessible to third parties. If no contract is concluded in this respect, they must be returned or deleted and may no longer be used after the end of the negotiations at the latest. PAILOT accepts no liability for such items.
PAILOT shall only enter into a contractual obligation if the nature and scope of the service and consideration have been agreed in writing by both parties. In the event of contradictions, the provisions of the individual agreements take precedence over these GTC. If the written form is not required by mandatory statutory provisions, digital images of a signed document sent by email satisfy the written form requirement of these Terms and Conditions. Subsequent verbal amendments and additions shall only become effective if they have been confirmed in writing by the parties. The same applies to all declarations of intent, in particular complaints, reminders and notices of defects within the scope of the contractual relationship. The customer is obliged to check PAILOT's offer carefully for correctness and appropriateness. Services that are not explicitly mentioned in the scope of delivery are not part of the offer.
3.1 Rights of use to individual services
3.1.1 PAILOT grants the Customer the exclusive, transferable right, unlimited in terms of time, subject matter and territory, to the services provided for all known types of use, including the right to modify them.
3.1.2 The Customer is granted a simple, non-exclusive right of use to the models, algorithms and concepts used by PAILOT in the service result, as well as to software and its extensions, which PAILOT also licenses to third parties.
3.1.3 In the case of services created individually for the Customer, PAILOT waives moral rights, in particular the right to be named as the author, access to the work and rights against defacement.
3.2 Rights of use in the context of a development cooperation
3.2.1 The Customer receives a simple, non-exclusive right of use, unrestricted in terms of time, place and territory, to services that are agreed in individual contracts in the context of a development cooperation. Further property rights of the customer, in particular any kind of marketing or exploitation vis-à-vis third parties such as transfer, leasing, lending, sale, sublicensing or other transfer to third parties, are not permitted.
3.3 In the event of the delivery or provision of third-party software, the license terms of third parties shall apply exclusively.
3.4 PAILOT is granted a non-exclusive right to use the data provided by the Customer for the term of the contract for the purpose of fulfilling the contract. The Customer retains the copyright and ownership of its own data at all times.
4.1 PAILOT's performance is not subject to any third-party rights.
A defect of title exists if third parties can assert justified property right claims against the customer in relation to the service.
4.2 In the event that there are defects of title, PAILOT is entitled, at its discretion,
(a) to take lawful measures to remove the conflicting third-party rights that impair the contractual use of the performance results, or
(b) to procure for the Customer the right to continue using the performance, or to modify or replace the performance in such a way that it no longer infringes third-party rights, if and to the extent that it essentially corresponds to the agreed functional and performance features in a manner that is reasonable for the Customer.
4.3 PAILOT will indemnify the Customer against all justified claims asserted against it in connection with the use of the contractual service due to the infringement of legal claims by third parties, provided that
(a) the Customer notifies PAILOT of this in writing without delay,
(b) PAILOT can assume sole control of the defense of such a claim and all related settlement negotiations,
(c) the Customer provides the necessary information and powers of attorney as well as necessary support services, and
(d) the Customer does not acknowledge any such claims by the third party. The defense against unjustified claims shall also be deemed to be indemnification. If the indemnification fails within a reasonable grace period, the customer may withdraw from the contract under the statutory conditions.
4.4 The above obligation does not apply if the impairment of rights is due to the fact that the service result or parts thereof are used with devices or programs that were not supplied by PAILOT or whose combined use was not approved.
The provision of the contractual service requires close cooperation between PAILOT and the Customer. The Customer shall provide PAILOT with all information, data and support services (including access to documents, systems, resources, premises and persons) required for the provision of the service without delay. Any services provided by the Customer shall be agreed separately between the parties, unless they are services that PAILOT can reasonably expect to be provided. The Customer shall ensure that all necessary ancillary services are provided in good time, to the extent required and free of charge for PAILOT.
6.1 In the event of slight negligence, PAILOT's liability is limited to the breach of material contractual obligations (cardinal obligations), i.e. those contractual obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the client regularly relies and may rely. PAILOT's liability is limited to compensation for typical, direct damage that was foreseeable at the time the contract was concluded.
6.2 Subject to section 9.1, PAILOT is only liable for the recovery of data if the Customer has made regular and risk-appropriate backup copies and has ensured that the data can be reconstructed from these backup copies with reasonable effort. Any further liability for loss of data is excluded.
6.3 The above limitations of liability also apply in favor of PAILOT's employees, representatives, executive bodies and vicarious agents. The Contractor shall only be liable for vicarious agents who are not also vicarious agents if it is guilty of intent or gross negligence in the selection and/or supervision of the vicarious agents.
6.4 Unless a shorter period has been agreed, claims for damages by the Customer shall lapse after one year. The period begins at the end of the year in which the claim arose and the customer becomes aware of the circumstances giving rise to the claim and the identity of the debtor or could have become aware of them without gross negligence.
6.5 The aforementioned limitations of liability shall not apply in the event of injury to life, limb or health. Liability based on mandatory, indispensable statutory provisions (e.g. under the Product Liability Act) shall also remain unaffected.
The contracting parties shall be released from the fulfillment of their obligations to the extent that and as long as the fulfillment of the contractual obligations is impossible or unreasonable as a result of events or circumstances beyond the control of the contracting parties. Relevant events or circumstances are in particular cases of force majeure, strikes and lockouts, unforeseeable operational and traffic disruptions, epidemics, serious illness or death of a key employee and similar obstacles. This is not an exhaustive list. Force majeure shall therefore also include such circumstances which are comparable to the aforementioned in terms of type and intensity and which are beyond the control of the parties. Legal or official measures shall be deemed to be a case of force majeure. The contracting parties must inform each other immediately and in detail of the occurrence of the events and circumstances described above. The above provision shall apply accordingly if the unforeseeable circumstances mentioned therein occur with third parties that the contracting parties use to fulfill their contractual obligations and lead to obstacles to performance without the third party being responsible for the circumstances.
8.1 The customer shall owe the remuneration specified in the offer for the contractual service. The remuneration shall be subject to the applicable statutory value added tax. Without timely payment of the remuneration, use of the contractual service is prohibited.
8.2 Unless otherwise agreed in individual contracts, travel costs and expenses shall be incurred if, at the express request of the customer, work is carried out outside the place of service provision in accordance with 11.2. In this case, the customer shall be invoiced for the costs according to actual expenditure.
8.3 If a daily rate is agreed in the individual contract, this shall comprise eight (8) hours. Additional or reduced services will be remunerated on a pro rata basis.
8.4 The Customer must pay all PAILOT invoices without deduction and cashless to the bank account specified in the offer no later than 14 calendar days after receipt and due date. If the contractual service is a recurring service that is repeated over a certain period of time, payment is due annually in advance, without deductions, no later than 28 days after receipt of a proper invoice. No discount shall be granted. Any fees incurred for bank transfers from abroad shall be borne by the Customer.
8.5 Offsetting against PAILOT's claims is only permitted with undisputed or legally established claims. The assignment of claims to third parties is not permitted.
8.6PAILOT reserves ownership and the rights to be granted until all of the Customer's payment obligations have been met in full. Prior to this, the rights are always granted only provisionally and revocably by PAILOT.
The contracting parties undertake to treat all knowledge of confidential information and trade secrets of the other contracting party obtained in the course of the performance of the contract as confidential for an unlimited period of time, in particular even after termination of the cooperation, including in particular technical and non-technical information, data, ideas, inventions, trade secrets and/or know-how as well as other information that is marked as confidential or recognizable as such. The contracting parties undertake not to make any confidential information and confidential material accessible to third parties and to take all reasonable precautions to protect their confidentiality. Third parties shall also include employees who do not require confidential information for the performance of their work.
When passing on, transferring or otherwise transferring services supplied by PAILOT and remaining its property to third parties in Germany and abroad, the Customer must comply with the applicable provisions of customs and (re-)export control law and obtain the necessary permits and submit them to PAILOT without being requested to do so.
11.1 Representations, catalogs and displays and other public presentations of PAILOT's services do not contain binding offers, but merely an overview of the products and services offered.
11.2 Services are provided from PAILOT's business premises or remotely via remote access, unless otherwise agreed in an individual agreement.
11.3 PAILOT is entitled to use subcontractors.
11.4 PAILOT is entitled to include the Customer by name and with its company logo in its reference list and to present this list to third parties and publish it for advertising purposes. The Customer may object to this use at any time for the future. However, PAILOT is not obliged to recall or amend advertising that has already been published at the time of the objection.
11.5 The Customer may only transfer the rights and obligations arising from this agreement to a third party with the prior written consent of PAILOT.
11.6 These Terms and Conditions are subject to the law of the Federal Republic of Germany, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG). Before bringing an action, each party has the right to attempt an amicable settlement of the dispute with the involvement of the management of both parties.
11.7 As far as legally permissible, the exclusive place of jurisdiction is Karlsruhe.
