General Terms and Conditions

1. These General Terms and Conditions (“GTC”) apply to all contracts of Arkcanis Consulting GmbH, Westerhofer Str. 12, 21224 Rosengarten, Germany (“Arkcanis”), with its customers concerning consulting, development and integration services, the provision and maintenance of software, training courses and workshops, and related services.

2. They apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.

3. The customer’s general terms and conditions do not become part of the contract, even if Arkcanis does not expressly object to them or renders performance in the knowledge of conflicting terms.

4. These GTC also apply, in the version valid at the time the contract is concluded, to future contracts with the same customer, without Arkcanis having to refer to them again.

5. In the event of conflict, the following order of precedence applies: first the individual contract including its annexes, second a data processing agreement in matters of data protection law, third these GTC. Individually negotiated terms always take precedence (Section 305b BGB).

1. Offers made by Arkcanis are without obligation unless they are expressly designated as binding. A contract is concluded upon Arkcanis’s order confirmation in text form or upon commencement of performance.

2. The type and scope of the services follow from the offer and the service description. Arkcanis renders consulting, development and integration services as services (Dienstleistung), unless work performance with acceptance criteria has expressly been agreed (Section VII).

3. Product descriptions, presentations and other information do not constitute guarantees or agreements on quality. Guarantees require express designation as such in text form.

4. Changes to the scope of services require text form. Arkcanis reviews the customer’s change requests and states what effect they have on remuneration and dates. Until agreement is reached, Arkcanis continues to perform as originally agreed.

5. Dates and deadlines are binding only if Arkcanis has designated them as binding in text form. They are postponed reasonably if the customer fails to fulfil its duties to cooperate in good time or requests changes. If Arkcanis is in default with a binding service, the customer may withdraw from the contract with regard to the delayed service after a reasonable grace period of at least ten working days has expired without result.

6. Software, work results and documentation are provided electronically, by download, by access to a repository or by installation through Arkcanis. Documentation is supplied in German or English.

1. All prices are in euros, net plus statutory value added tax.

2. Remuneration takes the form agreed in the individual contract:

a) as a monthly flat fee for ongoing services (consulting retainer, software provision, maintenance), payable monthly in advance;

b) as a fixed price for defined services, payable according to the agreed payment schedule;

c) by time and material at the agreed hourly or daily rates, invoiced monthly in arrears. A daily rate covers eight hours; time beyond that and partial days are invoiced at the hourly rate for each quarter hour commenced. Travel time counts as working time.

3. Flat fees cover the ongoing service described in the individual contract. No record of hours is owed. Services not called off are neither refunded nor carried over into subsequent months. Projects going beyond the ongoing service — in particular those requiring their own design, implementation and testing, the introduction of new systems and migrations — must be commissioned separately. If the scope of services is significantly disproportionate to the flat fee over a period of at least three months, either party may request an adjustment for the future; the parties will reach an understanding on this.

4. Effort estimates are non-binding. If it becomes apparent that an estimate will be exceeded by more than ten per cent, Arkcanis informs the customer without undue delay.

5. Travel costs, accommodation and expenses are remunerated separately according to actual expenditure unless otherwise agreed (rail first class, flights economy, car at the applicable tax mileage allowance, accommodation in a reasonable hotel).

6. Invoices are due without deduction within 14 days of receipt. Arkcanis issues invoices electronically in a format that meets statutory requirements.

7. In the event of default in payment, the customer owes default interest of nine percentage points above the base rate plus the lump sum under Section 288 (5) BGB. The assertion of further damages remains reserved.

8. If the customer is in default with a due payment for more than 14 days after receipt of a reminder, Arkcanis may withhold all services under the contract concerned until payment is received; dates are postponed accordingly. In the event of default with two monthly flat fees, Arkcanis may terminate the contract for cause.

9. The customer may set off only against counterclaims that are undisputed, have been established with final and binding effect, or arise from the same contractual relationship. The customer has a right of retention only in respect of counterclaims arising from the same contractual relationship.

10. If the consumer price index for Germany published by the Federal Statistical Office changes by more than five per cent compared with its level at the start of the contract or at the last adjustment, either party may, in contracts for ongoing services, request that flat fees and rates be newly agreed for the future. The parties will reach an understanding on this, giving reasonable consideration to the change in the index. If no agreement is reached within two months of the request, the requesting party may terminate the contract giving three months’ notice to the end of a month.

11. Rights of use in work results and software arise only upon payment in full of the remuneration owed for them. Until then, use is permitted revocably.

1. The customer names a contact person authorised to take decisions on technical matters and provides Arkcanis with all information, documents, access rights, test data and system environments required for the service in good time, in full and free of charge.

2. The customer is and remains the operator of its systems, including where Arkcanis provides, configures or maintains software. The customer maintains its own administrative access to all systems concerned and a responsible person, and is responsible for data backup, authorisation concepts, operating system and security updates, and for licensing the third-party software it uses. Arkcanis assumes no responsibility for operation or availability unless this has expressly been agreed in text form.

3. Before Arkcanis intervenes in productive systems, the customer ensures that a current, restorable data backup exists.

4. The customer ensures that Arkcanis may use the data and systems provided for the purpose of the contract, in particular with regard to data protection, confidentiality obligations towards third parties and the licence terms of third-party providers.

5. Access to customer systems is granted on a personal basis and used only for the purpose of the contract. The customer communicates in text form any security requirements Arkcanis is to observe; Arkcanis observes them insofar as they are reasonable and do not substantially impede performance. After the contract ends, the customer blocks the access.

6. If the customer does not fulfil its duties to cooperate in good time, dates are postponed reasonably. Additional effort and waiting time arising from this are remunerated at the agreed rates or, failing that, at Arkcanis’s customary rates.

1. Arkcanis determines the place, time and manner of performance at its own professional discretion unless otherwise agreed in the individual contract. Services are generally rendered remotely; on-site services take place by arrangement.

2. Arkcanis may engage subcontractors and remains responsible for the service. Where personal data are processed on behalf of the customer in this context, the engagement is governed by the data processing agreement.

3. The persons deployed by Arkcanis are subject exclusively to instructions from Arkcanis and are not integrated into the customer’s work organisation. The customer does not issue them employment-related instructions; it addresses technical requirements to Arkcanis. The contract does not have the provision of temporary workers as its subject matter.

4. A claim to performance by a particular person exists only if the individual contract names that person. If a named person is temporarily unavailable, Arkcanis endeavours to provide an equivalent substitute; dates are postponed reasonably.

5. Arkcanis remains free to render services of the same kind for third parties and to develop, market and deploy its own products, including in the customer’s industry. A non-compete obligation or exclusivity exists only if expressly agreed.

6. General know-how, ideas, concepts, methods and procedures that Arkcanis acquires or develops in the course of performance may be used freely by Arkcanis, provided that no confidential information of the customer is disclosed. Paragraphs 5 and 6 leave the confidentiality obligations under Section XIV unaffected.

1. Arkcanis renders consulting services in accordance with professional principles as services; no particular economic success is owed. Recommendations, concepts and analyses are a basis for decisions. The decision on their implementation and its consequences rests with the customer.

2. Arkcanis does not provide legal or tax advice. Services in the areas of financial reporting, consolidation and controlling concern technical and process implementation; assessment under tax and commercial law is a matter for the customer and its duly qualified advisers.

3. Registrations for training courses are made in text form and confirmed by Arkcanis. The participation fee is invoiced upon confirmation; it is due at the latest before the course begins. In the event of default in payment, Arkcanis may refuse participation.

4. The customer may cancel or rebook a registration in text form. This is free of charge up to 14 calendar days before the start; thereafter, up to seven calendar days before the start, half the participation fee falls due, and in the event of later cancellation, rebooking or non-attendance the full fee. The customer may name a substitute participant at any time. If a participant attends only parts of the course, the full fee remains owed.

5. Arkcanis may make minor adjustments to course content and may cancel or postpone a course up to seven calendar days before the start if the number of participants is insufficient or the trainer is unavailable, and at shorter notice in the event of sudden illness. Fees already paid are refunded or, at the customer’s request, credited against an alternative date. Further claims exist only in accordance with Section XIII.

6. For workshops and training courses conducted individually for the customer, the following applies: if the customer cancels or postpones an agreed date less than ten working days beforehand, half the agreed remuneration falls due, and less than five working days beforehand the full remuneration, in each case plus travel costs that can no longer be cancelled. The customer remains entitled to prove that Arkcanis incurred lower damage.

7. Participants may use training materials for their own purposes but may not pass them on to third parties or use them for their own training courses.

1. This section applies only where the parties have expressly agreed work performance with acceptance criteria. Other development and integration services are not subject to acceptance.

2. Arkcanis may proceed iteratively and provide services in parts. Agreed partial services or milestones are accepted and remunerated separately.

3. Arkcanis provides the service and requests the customer to declare acceptance. The customer examines the service within ten working days on the basis of the agreed acceptance criteria and the test data it has provided, and either declares acceptance or gives notice in text form of specifically identified material defects. Immaterial defects do not entitle the customer to refuse acceptance; their remedy remains owed.

4. The service is deemed accepted if Arkcanis has, after completion, set the customer a reasonable period for acceptance corresponding at least to the period under paragraph 3, and the customer has not refused acceptance within that period stating at least one defect. If the customer puts the service into productive operation without reservation, this is equivalent to acceptance; test, pilot and emergency operation do not constitute productive operation. Arkcanis points out both in the request for acceptance.

5. If no payment schedule has been agreed, 30 per cent of the remuneration falls due upon conclusion of the contract, 40 per cent upon provision for acceptance and 30 per cent upon acceptance.

6. There is no claim to release of the source code. Release, escrow or rights of use in the source code in the event that maintenance is discontinued or Arkcanis becomes insolvent may be agreed in the individual contract.

7. Arkcanis may use open source components provided that their licence terms permit the customer’s contractual use. For these components the respective licence terms take precedence. On request, Arkcanis provides an overview of the components used.

1. The exclusive rights of use and exploitation in software, configurations, scripts, rule sets, data models, documentation, concepts and other work results that Arkcanis creates or provides under the contract belong to Arkcanis, except where third-party rights in open source components or third-party software, or the customer’s rights in materials it has supplied, are concerned. This also applies where the work results are based on the customer’s specifications or are created individually for the customer. Arkcanis ensures that it has acquired the necessary rights from its employees and subcontractors.

2. The customer receives a non-exclusive, non-transferable right to use the software and work results for its own internal business purposes, which may not be sublicensed. In the case of a one-off fee, the right of use is unlimited in time; in the case of recurring remuneration, it is limited to the term of the contract. Use by affiliated companies (Section 15 of the German Stock Corporation Act, AktG) requires a separate agreement.

3. The scope of use is measured by the agreed number of productive installations (instances) and tenants. Within this scope the customer may operate the software on any hardware and in virtualised or containerised environments, move it between systems, keep it available for failover, and operate test and development instances at no additional charge. Operation by a service provider on behalf of and exclusively for the purposes of the customer is permitted; the customer imposes corresponding obligations on that service provider.

4. It is not permitted to make the software available to third parties, in particular as application service providing or software as a service, to rent or sell it, or to use it for the purposes of third parties. Modification, decompilation and other reverse engineering are permitted only within the limits of Sections 69d and 69e of the German Copyright Act (UrhG). Backup copies are permitted to the extent customary for proper data backup.

5. Rules, workflows, configurations and content that the customer creates itself using the software, as well as the data it processes, belong to the customer. The customer may export them at any time insofar as the software provides an export function, and may continue to use them after the contract ends insofar as this is possible without the software.

6. The customer may use, modify and reproduce concepts, presentations, reports and documentation from consulting services for its own internal purposes. Disclosure to third parties is permitted only to the customer’s advisers and auditors under an obligation of confidentiality.

7. Copyright notices and markings may not be removed or altered.

8. Software provided for testing and evaluation purposes is provided free of charge and for a limited period. The right of use ends when that period expires; the customer then ceases to use it. Arkcanis may limit use technically if it states this when providing the software. For test and evaluation software Arkcanis is liable only in accordance with Section XIII paragraph 1.

9. If the customer culpably breaches the terms of use and does not remedy the breach within 14 days of a warning, Arkcanis may terminate the right of use for cause. Claims to remuneration and damages remain unaffected.

1. Where Arkcanis provides the customer with its own software for use, the scope of services follows from the individual contract. Where software is provided against recurring remuneration, provision includes maintaining the software in a condition fit for contractual use during the term of the contract, in particular remedying defects in the software. Where maintenance has been agreed in addition, it comprises the provision of new versions with error corrections and further developments, the remedy of reproducible errors, and technical support for questions on the functioning of the software during Arkcanis’s business hours (Monday to Friday, 9:00 to 17:00, excluding public holidays in Lower Saxony). Response and restoration times apply only if agreed in the individual contract.

2. Maintenance does not cover the creation or adaptation of software to the customer’s individual requirements, the introduction of new functions, training, process and organisational consulting, the operation of the software, or the remedy of malfunctions attributable to changes made to the software by the customer or third parties, to a system environment outside the documented requirements, or to third-party systems. Arkcanis renders such services against separate remuneration; the obligation to maintain fitness for use under paragraph 1 remains unaffected. Adaptations to changed interfaces of third-party systems form part of maintenance insofar as they are possible with reasonable effort; fundamental changeovers must be commissioned separately.

3. The customer reports errors in text form with a comprehensible description of their effects and, where possible, of the steps to reproduce them. Arkcanis processes error reports within a reasonable time and according to their significance for operations. If an error impairs use only immaterially, Arkcanis may refer the customer to a reasonable workaround until a correction is available.

4. Maintenance is subject to the customer using the current version released by Arkcanis or the version immediately preceding it, observing the documented system requirements, and granting Arkcanis the remote access required for maintenance. As long as these conditions are not met, the maintenance obligation under paragraph 1 sentence 3 is suspended; the obligation to maintain fitness for use under paragraph 1 sentence 2 remains unaffected insofar as the defect is not attributable to the missing condition. The remuneration remains owed.

5. Contracts for the provision and maintenance of software are concluded for an indefinite period. They have a minimum term of six months and may be terminated by either party giving three months’ notice to the end of a month in text form, for the first time with effect from the end of the minimum term. The right to terminate for cause remains unaffected.

6. When a time-limited provision of software ends, the right of use ends; the customer ceases use and deletes the software. On request, Arkcanis supports the customer against remuneration on a time and material basis in taking over the software itself or through a third party. Section VIII paragraph 5 remains unaffected.

1. Arkcanis may use artificial intelligence methods, including those of third parties, in rendering its services and within its software, for example to evaluate free text, to enrich data or to support development. The results are reviewed by Arkcanis on their merits; responsibility for the service remains with Arkcanis.

2. The customer’s personal data are transmitted to external AI services only where this is covered by the data processing agreement, where the transmission is limited to what is necessary for the purpose and, where possible, pseudonymised, and where the provider is contractually bound not to use the data to train its own models.

3. AI functions in software operated at the customer’s premises are used by the customer via its own access credentials with the respective provider, and the customer bears that provider’s costs unless otherwise agreed. The customer may disable such functions at any time.

4. The customer may exclude the use of external AI services for its data in text form. Arkcanis states what effect this has on the scope of services, dates and remuneration.

1. Arkcanis indemnifies the customer against third-party claims based on the assertion that the contractual use of the software or work results created by Arkcanis infringes copyright or other intellectual property rights in the Federal Republic of Germany, provided that the customer informs Arkcanis without undue delay in text form of any claims asserted, leaves the defence and settlement negotiations to Arkcanis and supports Arkcanis reasonably in this.

2. Arkcanis may, at its option, obtain the necessary right of use for the customer or modify or replace the service concerned such that third-party rights are no longer infringed and the agreed functionality is substantially retained. If neither is possible with reasonable effort, either party may withdraw from the contract with regard to the service concerned.

3. The indemnity does not apply insofar as the infringement is based on the customer’s specifications or materials, on modifications by the customer or third parties, or on combination with products not supplied by Arkcanis. The indemnity does not apply to open source components and third-party software.

1. For services, Arkcanis owes professional performance in accordance with the state of the art. If a service does not meet this standard, Arkcanis will rectify it upon notice from the customer. Warranty rights under sales or contract-for-work law do not exist in this respect.

2. For work performance and for the provision of software against a one-off fee, Arkcanis first provides subsequent performance for defects in quality, at its option by rectification or by new delivery. Until a correction is available it may provide a reasonable workaround. If subsequent performance fails after two attempts or is unreasonable, the customer may reduce the remuneration or, in the case of defects that are not merely insignificant, withdraw from the contract.

3. The customer is aware that, according to the state of the art, software cannot be created entirely free of errors. A defect exists where the software deviates from the agreed quality; workarounds under paragraph 2 remain permissible.

4. The customer examines the service without undue delay after provision or acceptance and gives notice of defects without undue delay in text form with a comprehensible description. If the customer culpably breaches this duty, it bears the additional effort and additional damage arising from this.

5. Claims for defects do not exist insofar as a defect is attributable to modifications of the software by the customer or third parties, to improper use, to a system environment outside the documented requirements, or to specifications, data or materials provided by the customer, unless the customer proves that the defect is independent of these.

6. If it turns out that a defect complained of did not exist, and the customer could have recognised this, Arkcanis may charge the effort of the examination at its customary rates.

7. For third-party software that Arkcanis procures, sets up or integrates into its services, the warranty terms of the respective manufacturer apply. Arkcanis is liable in this respect only for careful selection and integration.

8. Claims for defects become time-barred after twelve months from acceptance or, where no acceptance takes place, from provision. This does not apply in cases of fraudulent intent, guarantees, the cases set out in Section XIII paragraph 1, or claims under Section 445b BGB. The claim to maintenance of fitness for contractual use where software is provided against recurring remuneration (Section IX paragraph 1) is not subject to this shortened period.

1. Arkcanis is liable without limitation for intent and gross negligence, for damage arising from injury to life, body or health, in cases of fraudulent intent, to the extent of a guarantee assumed, and under the German Product Liability Act.

2. In cases of slight negligence, Arkcanis is liable only for breach of material contractual obligations, that is, obligations whose fulfilment makes proper performance of the contract possible in the first place and on whose observance the customer may regularly rely. In such cases liability is limited to the foreseeable damage typical for this type of contract at the time the contract was concluded.

3. The amount deemed typical and foreseeable is, per instance of damage, the remuneration that the customer was obliged to pay for the contract concerned in the twelve months preceding the damaging event, or, for a shorter term, the remuneration agreed for the first twelve months, or, in the case of a one-off fee, that fee. For all instances of damage within a contract year, liability is limited in total to twice that amount.

4. In cases of slight negligence, Arkcanis is not liable for lost profit, savings not realised, loss of production, indirect damage or consequential damage.

5. Liability for loss of data is limited to the cost of restoration that would have been incurred had the customer carried out proper and regular data backups. This does not apply in the cases set out in paragraph 1.

6. For recommendations and decision-making material from consulting services, Arkcanis is liable in accordance with this section for their professional preparation, not for the economic success of the decisions taken by the customer.

7. Arkcanis is not liable for damage arising because third parties engaged by the customer fail to render their services, render them late or render them defectively, or which is attributable to disruptions of third-party services for which Arkcanis is not responsible.

8. Events of force majeure and other circumstances for which Arkcanis is not responsible and which substantially impede or prevent performance — such as natural events, epidemics, strikes, official measures, failure of communication networks or cloud services, cyber attacks without fault on the part of Arkcanis, and illness of a key person named in the individual contract — entitle Arkcanis to postpone performance by the duration of the impediment plus a reasonable start-up period. Arkcanis notifies the event without undue delay. For the period of the impediment, remuneration for services not rendered does not apply. If the impediment lasts longer than two months, either party may terminate the contract with regard to the services not yet rendered.

9. The limitations of liability also apply to the personal liability of the executive bodies, employees and vicarious agents of Arkcanis and to claims in tort.

10. Claims for damages by the customer become time-barred after twelve months from the point at which the customer became aware of the circumstances giving rise to the claim or ought to have become aware of them without gross negligence, but at the latest after three years from the point at which the claim arose. This does not apply in the cases set out in paragraph 1.

1. The parties treat as confidential all information of the other party that is marked as confidential or whose confidentiality follows from the circumstances — in particular trade secrets, source code, technical documentation, prices and contract contents — use it only for the purposes of the contract, and make it accessible only to those employees, subcontractors and advisers who need it for the purposes of the contract and who are themselves bound to confidentiality.

2. The obligation does not apply to information that was demonstrably already known to the receiving party, that is or becomes publicly known without its fault, that was provided to it by an authorised third party without any confidentiality obligation, that it developed independently, or that must be disclosed by statutory or official order; in the latter case, it informs the other party in advance insofar as this is permitted.

3. The confidentiality obligation continues for five years after the end of the contract, and without time limit for trade secrets within the meaning of the German Trade Secrets Act.

4. The customer remains the controller under data protection law for the personal data in its systems. Insofar as Arkcanis processes such data on behalf of the customer, the parties conclude a data processing agreement pursuant to Article 28 GDPR; in matters of data protection law, that agreement takes precedence over these GTC. The engagement of sub-processors is governed by that agreement.

5. Arkcanis stores customer data outside the customer’s systems only insofar as this is necessary to render the service, for example for error analysis, and deletes it once the purpose has been achieved, unless statutory retention obligations preclude this.

6. Both parties take appropriate technical and organisational measures to protect the information provided to them and inform the other party without undue delay of security incidents affecting that party’s information.

Arkcanis may name the customer as a reference with name and logo following the customer’s release in text form, in particular on its website and in presentations. The release may be revoked at any time with effect for the future. Without a release, Arkcanis describes reference projects only in anonymised form that does not permit any conclusion to be drawn about the customer.

1. During the cooperation and for twelve months after the end of the last contract concluded between them, the parties will not specifically approach employees of the other party, or subcontractors or freelancers deployed by Arkcanis for the customer, with a view to recruiting them. Employment or engagement resulting from the initiative of the person concerned or from a generally published job advertisement is not covered by this.

2. In the event of a culpable breach, the party in breach is liable for damages in accordance with the statutory provisions.

1. Contracts for ongoing services against a flat fee (consulting retainer, software provision, maintenance) are concluded for the term agreed in the individual contract. In the absence of an agreement, Section IX paragraph 5 applies accordingly.

2. Either party may terminate for cause. Cause exists for Arkcanis in particular where the customer is in default with two monthly flat fees or, despite a warning, breaches material contractual obligations, in particular the terms of use under Section VIII. Statutory rights under Sections 320 and 321 BGB remain unaffected.

3. Notices of termination require text form.

4. On termination, time-limited rights of use end. Flat fees already due remain owed; advance payments made for the period after the end of the contract are refunded. Each party returns or deletes the other party’s confidential information on request, unless retention obligations preclude this. Arkcanis provides handover and migration support against remuneration on a time and material basis.

1. Amendments and additions to the contract, notices of termination and other legally relevant declarations require text form (Section 126b BGB); email is sufficient. This also applies to any waiver of this clause. Individually negotiated terms remain unaffected.

2. Arkcanis may transfer its rights and obligations under the contract as a whole to an affiliated company or to a legal successor that assumes the obligations. It notifies the customer of the transfer in text form at least four weeks in advance. The customer may terminate the contract within that period without stating reasons with effect from the date of the transfer. The customer may transfer rights under the contract only with Arkcanis’s consent; Section 354a of the German Commercial Code (HGB) remains unaffected.

3. The place of performance for all services is Arkcanis’s registered office unless otherwise agreed.

4. The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

5. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contract is Arkcanis’s registered office. Arkcanis is also entitled to bring proceedings against the customer at the customer’s general place of jurisdiction.

6. In the case of translations of these GTC, the German version prevails.

7. Should individual provisions be or become invalid, the validity of the remaining provisions remains unaffected. The statutory provisions take the place of an invalid provision (Section 306 (2) BGB).