Terms and conditions
This English translation is provided for convenience only. The German version at /de/agb/ is legally binding and prevails in the event of any discrepancy.
General Terms and Conditions of Thorit GmbH for digital project and operational services
§ 1 General
a) Scope: These General Terms and Conditions (GTC) apply to all agreements for digital project and operational services between Thorit GmbH, Jakob-Degen-Straße 1, 71034 Böblingen (hereinafter “Thorit GmbH”) and its customers. They become part of the contract as an annexe to the offer of Thorit GmbH and govern the corresponding contractual terms. Deviating or conflicting terms and conditions of the Customer shall not apply, unless Thorit GmbH expressly agrees to their validity in writing.
b) Contract language and customer base: The contract language is German. Offers and contracts of Thorit GmbH are addressed exclusively to entrepreneurs (Unternehmer) within the meaning of § 14 BGB (German Civil Code); the services are not provided to consumers. Upon acceptance of the offer, or at the latest upon commencement of performance of the contract, the Customer accepts these GTC.
c) Formation of contract: The contract is concluded individually by way of a written offer from Thorit GmbH and its acceptance by the Customer. Side agreements or amendments to the contract require written form to be effective, unless a stricter form is prescribed by law. The specific scope of services as well as remuneration and, where applicable, terms are bindingly determined in the respective offer. Thorit GmbH does not separately store the text of the contract; the content of the contract results from the offer and these GTC.
d) Amendments to the GTC: Thorit GmbH is entitled to adapt or supplement these GTC with effect for future or ongoing business relationships, insofar as this is necessary to close regulatory gaps or to remedy disruptions to the contractual balance of performance and consideration. The Customer will be informed of planned amendments at least six weeks in advance in text form. If the Customer does not object within six weeks of receipt of the notice of amendment in text form, the amendments shall be deemed approved. Thorit GmbH will specifically draw the Customer's attention to the significance of its silence in the notice of amendment. If the Customer objects in due time, either party may terminate the contract for cause.
§ 2 Description of Services
a) Subject matter of the service: Thorit GmbH provides its customers with services in the field of digital project services (e.g. consulting, development, implementation) as well as operational services (e.g. ongoing support and managed services). The exact scope of services and, where applicable, results to be achieved are described in the respective offer. Thorit GmbH is entitled to engage third parties as subcontractors for the provision of the services, without this giving rise to a contractual relationship between the third party and the Customer. Third-party services associated with ongoing costs (e.g. hosting, domains, SaaS tools) will either be commissioned by Thorit on behalf of the Customer, or the Customer will conclude such contracts itself; in either case, the Customer bears the direct costs arising therefrom.
b) Deadlines and force majeure: The time for performance and any milestones arise from the specific offer. Fixed deadlines are not owed unless expressly agreed as such. If performance deadlines are delayed by circumstances outside the sphere of influence of Thorit GmbH (e.g. force majeure, industrial action, official orders, failure of suppliers, or unforeseen technical obstacles), the agreed deadlines shall be extended by the duration of the hindrance plus a reasonable resumption period. Thorit GmbH shall inform the Customer without delay of any such delays. If the service is permanently unavailable for the aforementioned reasons, Thorit GmbH is entitled to withdraw from the contract; any payments already made by the Customer shall in that case be refunded without delay.
c) Performance of services: Thorit GmbH shall provide the contractual services to the best of its knowledge and in an economically sensible manner, in accordance with the state of the art current at the time the contract is concluded. Unless otherwise agreed, Thorit GmbH does not owe any particular commercial success; in particular, it gives no guarantee that the Customer's specific targets (e.g. revenue targets, rankings or similar) will be achieved. In the course of performing the services, Thorit GmbH will use access data and confidential information provided by the Customer exclusively for the performance of the contract and will not disclose it to third parties.
§ 3 Contract Model A – Capped Time & Material (T&M)
a) Remuneration based on effort: Under this contract model, remuneration is based on actual effort expended, calculated on the basis of daily rates in accordance with the offer. Time worked is billed to the exact hour, with part-hours rounded up to the next full hour. Each daily rate covers the usual work performed on a given day; travel or incidental costs are otherwise only reimbursable if expressly provided for in the offer or separately agreed. All fees stated are exclusive of statutory value added tax.
b) Invoicing and payment: In Model A, Thorit GmbH shall regularly invoice the Customer on a monthly basis for the hours performed up to that point. Unless individually agreed otherwise, the invoice is due for payment without deduction within 14 calendar days. Thorit GmbH is entitled, after conclusion of the contract, to require the Customer to make an advance payment of 50% of the agreed budget cap (Budgetobergrenze). Thorit GmbH may only commence work once the advance payment has been received. If the actual effort exceeds the agreed budget cap, or if it becomes foreseeable that this will be the case, Thorit GmbH shall inform the Customer thereof. Exceeding the budget cap and continuing the services shall only occur with the Customer's prior written consent. Without such consent, Thorit GmbH is not obliged to provide further services beyond the agreed budget.
c) Contract term and termination: Contracts under Model A are concluded for an indefinite period. There is no fixed minimum term. Either party may terminate the contract by ordinary notice at any time, without giving reasons and without observing a notice period, in text form. The right to terminate for cause remains unaffected.
Notwithstanding any termination, the Customer undertakes to fully draw down the budget framework (“budget cap”) agreed in the offer as the bindingly commissioned scope of services, or — insofar as no draw-down occurs — to pay the corresponding remuneration up to the amount of the budget cap. If a minimum budget is defined in the offer, this shall be payable in any event, irrespective of actual draw-down. Billing shall continue to be based on actual hours worked, on the basis of the agreed daily rates, to the exact hour (rounded up), until the budget cap has been fully exhausted. Thorit GmbH is entitled to carry out resource planning and capacity allocation on the basis of the agreed budget and to reserve effort for this purpose.
§ 4 Contract Model B – Managed Service Retainer
a) Contract term and extension: Under this contract model, a fixed term is agreed, typically 12, 24 or 36 months, as stated in the respective offer. The contract commences on the start date stated in the offer and ends automatically upon expiry of the agreed term, unless it is extended in accordance with the following provision. If the contract is not terminated by either party in text form at least 3 months before expiry of the respective term, it shall automatically extend by the originally agreed term (but by no more than a further 36 months) on the same terms. If an extension occurs, the aforementioned notice period shall apply correspondingly to the end of the respective extension period. The right to terminate for cause at any time remains unaffected.
b) Services and hours allowance: The specific services of Thorit GmbH (e.g. support services, maintenance, consulting services) and any monthly hours or service allowance are set out in the offer. If a monthly hours allowance is agreed in the offer, unused services from a calendar month may be carried over once into the following month. Any further carry-over is excluded. Unused hours from the previous month lapse definitively if they are also not used in the following month. The Customer has no claim to any further carry-over or remuneration of hours not drawn down. Thorit GmbH will inform the Customer if the allowance is foreseeably going to be exceeded; additional services are possible at the Customer's request against additional remuneration, insofar as Thorit GmbH has the capacity.
c) Remuneration and invoicing: Under the Managed Service Retainer, remuneration is paid as a flat fee in accordance with the offer, either in the form of monthly instalments or by annual advance payment for the entire term, depending on the payment method agreed in the offer. Unless otherwise agreed, Thorit GmbH shall invoice its services monthly in arrears (in the case of annual advance payment, correspondingly annually at the start of the respective contract period). All prices are exclusive of statutory VAT. Invoices are due for payment without deduction within 14 days of receipt. In the event of default in payment, the provisions of § 5 shall apply correspondingly.
§ 5 Payment Terms
a) Due date and default: Unless otherwise agreed in an individual case, payments are due without deduction within 14 calendar days of the invoice date. The date on which the amount is received in the account specified by Thorit GmbH is decisive. Upon expiry of this payment period, the Customer shall be in default without any further reminder. In the event of default, Thorit GmbH is entitled to charge default interest at a rate of 9 percentage points above the respective base rate of the European Central Bank per annum. A flat reminder fee of 2.50 € may be charged for each reminder. The Customer reserves the right to prove that no loss, or a significantly lower loss, was incurred.
b) Set-off and retention: The Customer may only set off against claims of Thorit GmbH with counterclaims that are undisputed or have been finally and non-appealably established. The Customer may only assert a right of retention insofar as its counterclaim is based on the same contractual relationship and is undisputed or finally and non-appealably established. In all other respects, rights of set-off or refusal of performance on the part of the Customer are excluded.
c) Rights in the event of the Customer's default in payment: If the Customer is in default with due payments, Thorit GmbH is entitled — without prejudice to further rights — to provisionally suspend or withhold further performance of the services. In particular, in the event of continued default, Thorit GmbH may suspend access rights, deliverables or results, or release them only once payment has been received in full. The Customer's obligation to pay the remuneration remains unaffected by this. As soon as all outstanding amounts have been settled, Thorit GmbH shall without delay again provide or release the withheld services.
§ 6 Customer's Duties to Cooperate and Other Obligations
a) Duties to cooperate: The Customer is obliged to provide all cooperation incumbent upon it in good time and to the extent required for the performance of the contract. In particular, the Customer shall, without being requested and without delay, provide Thorit GmbH with the information, documents, access and instructions necessary or conducive to the provision of the agreed services. Furthermore, the Customer shall, where required, make knowledgeable contact persons available and shall approve interim results or specify any change requests promptly, so that no delays arise. If the Customer fails to fulfil its duties to cooperate, or fails to do so in time, agreed performance deadlines shall be extended appropriately by the duration of the delay plus a reasonable resumption period.
b) Consequences of a failure to cooperate: If the Customer fails to provide required cooperation even after being requested to do so by Thorit GmbH and after expiry of a reasonable period set by the provider, Thorit GmbH may, at its discretion, suspend performance of the services until such cooperation is provided, and/or terminate the contract for cause once the period has expired without result. In the event of a delay or interruption of the project for which the Customer is responsible, Thorit GmbH may also demand reasonable compensation for the resulting additional effort or standstill. This compensation is calculated in particular by reference to the duration of the delay and the agreed remuneration, taking into account what Thorit GmbH saves in expenses or can earn through alternative use of its resources. Further claims of Thorit GmbH remain unaffected.
c) Responsibility for content and data: The Customer is solely responsible for the content, materials and data that it provides to Thorit GmbH in connection with the project. It warrants that the content transmitted, as well as its intended use, does not infringe the rights of third parties and does not conflict with any statutory provisions. This concerns, in particular (but not exhaustively), personal data (data protection), copyrights, trade mark, name or other proprietary rights, and the personality rights of third parties. By providing data to Thorit GmbH, the Customer confirms that it has obtained all permissions or legal bases required in this respect. Should Thorit GmbH be held liable by third parties for infringements of rights on the basis of materials supplied by the Customer, the Customer shall indemnify Thorit GmbH on first demand against all claims arising therefrom. This indemnity also covers reasonable costs of legal defence.
d) Data backup: The Customer is jointly responsible for backing up the data transmitted by it or arising in the course of the project. The Customer is obliged to create its own backup copies of all important data before providing it to Thorit GmbH, and to carry out backups at reasonable intervals during performance of the contract. Although Thorit GmbH endeavours to avoid data loss within its own area of responsibility, it assumes no general data backup guarantee for information transmitted by the Customer. Liability of Thorit GmbH for loss or corruption of Customer data is excluded, unless one of the liability provisions in § 9 exceptionally applies.
§ 7 Confidentiality and Data Protection
a) Confidential information: Both parties undertake to treat as confidential, for an unlimited period, all business and operational secrets received from, or that became known through, the respective other party in the course of the cooperation, as well as information marked as confidential. Disclosure of such information to third parties is not permitted. Excluded from this obligation is information that was already publicly known at the time of receipt, or already lawfully known to the receiving party, or that subsequently becomes publicly known without breach of a confidentiality obligation. Thorit GmbH is entitled to name the Customer as a reference (using the company name and logo), unless the Customer objects in text form. Further publications about the project (e.g. case studies) shall only take place in coordination with the Customer.
b) Data protection and data processing: Thorit GmbH will comply with the applicable data protection provisions, in particular the General Data Protection Regulation (GDPR) and the BDSG (German Federal Data Protection Act). Insofar as the Customer grants Thorit GmbH access to personal data, or transmits such data, in connection with the contract, Thorit GmbH may process this data exclusively for the performance of the contract and in accordance with the Customer's instructions. Thorit GmbH takes appropriate technical and organisational measures to protect the data against unauthorised access or misuse. Insofar as Thorit GmbH acts as a processor for the Customer within the meaning of data protection law (Art. 28 GDPR), the parties shall, prior to commencement of the services, conclude a data processing agreement meeting the statutory requirements. The Customer, for its part, shall ensure that it is entitled to provide the relevant personal data to Thorit GmbH for the purpose of performing the contract (for example, by obtaining the necessary consents of the data subjects concerned, or on the basis of other legal grounds).
§ 8 Rights to Work Results
a) Rights of use for the Customer: Thorit GmbH grants the Customer a simple (non-exclusive), spatially and temporally unrestricted right to use, for its own business purposes, the work results created under the contract (e.g. software developed, documentation, analyses, etc.). This right of use is subject to full payment of the remuneration owed. No right of ownership or exclusive rights of exploitation in the work results are transferred to the Customer. Thorit GmbH remains the holder of all copyrights and industrial property rights in the services it provides and may continue to freely use the concepts, ideas, procedures or routines developed in the process for other projects.
b) No transfer or sublicensing: Without the express written consent of Thorit GmbH, the Customer is not entitled to transfer or sublicense the rights of use granted to it in the work results, or to make them accessible to third parties. The work results are intended exclusively for use by the Customer and its affiliated companies within the scope provided for in the contract.
c) Amendments and interim results: Amendments to, or modifications of, the work results delivered by Thorit GmbH by the Customer or by third parties engaged by the Customer require the prior consent of Thorit GmbH, insofar as the amendments go beyond intended use. This also applies to the incorporation of parts of the results into other works. The foregoing provisions also extend to partial services and interim results arising in the course of the project.
d) Backup copies: The Customer is entitled to make and retain backup copies of the work results for its own internal purposes. Copyright notices, logos, digital watermarks and other rights notices of Thorit GmbH affixed to the work results may not be removed, altered or rendered illegible, unless Thorit GmbH agrees in writing to the removal of individual notices or this is strictly necessary for use in accordance with the contract.
§ 9 Liability and Warranty
a) Warranty for the performance of services: Thorit GmbH shall provide the contractually owed services with the care customary for it, on the basis of the known state of science and technology. Thorit GmbH will, following notification by the Customer, remedy any defects in work results within a reasonable period by way of subsequent performance (rectification or re-creation), insofar as this concerns a Werkvertrag (contract for work and services) and the defect lies within its area of responsibility. If subsequent performance fails or is associated with disproportionate effort for Thorit GmbH, the Customer may — insofar as this concerns a material defect — in accordance with the statutory provisions, reasonably reduce the remuneration owed or withdraw from the contract. In all other respects, the limitations of liability set out below shall apply. The Customer shall notify any defects in the services of Thorit GmbH as early as possible and shall cooperate to the best of its ability in the analysis of the fault.
b) Limitation of liability: The liability of Thorit GmbH, its statutory representatives and vicarious agents is limited — irrespective of the legal ground — to intent and gross negligence. For simple negligence, Thorit GmbH is only liable in the event of a breach of a material contractual obligation (Kardinalpflicht), that is, an obligation whose fulfilment is of particular importance for achieving the purpose of the contract. In such a case, liability in amount is limited to the foreseeable damage typical for the type of contract at the time the contract was concluded. Insofar as legally permissible, any further liability of Thorit GmbH for slight negligence is excluded; in particular, it is not liable for loss of profit, unrealised savings or other indirect consequential damage.
c) Exclusions and reservation of liability: The foregoing limitations of liability do not apply to claims for injury to life, limb or health, in cases of fraudulent concealment of a defect or the assumption of a guarantee, or under the Produkthaftungsgesetz (German Product Liability Act). In these cases, Thorit GmbH shall be liable in accordance with the statutory provisions. Insofar as the liability of Thorit GmbH is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents. Thorit GmbH assumes no liability for content and data provided by the Customer; responsibility in this respect lies with the Customer (see § 6 c)). The Customer further remains solely responsible for carrying out appropriate data backups at regular intervals to prevent data loss — Thorit GmbH is not liable for the loss of, or unintentional alteration to, Customer data.
§ 10 Final Provisions
a) Place of jurisdiction: For all disputes arising from the contractual relationship, Böblingen is agreed as the exclusive place of jurisdiction, provided the Customer is a merchant (Kaufmann) within the meaning of the HGB (German Commercial Code), a legal entity under public law, or a special fund under public law. If the Customer has no place of jurisdiction in Germany, or does not maintain a general place of jurisdiction there, Böblingen shall likewise apply as the place of jurisdiction. Mandatory statutory provisions on jurisdiction remain unaffected.
b) Governing law: The law of the Federal Republic of Germany applies, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN-Kaufrecht, CISG). Conflict-of-laws provisions that would lead to the application of foreign law shall not apply.
c) Severability clause: Should any provision of this contract or of these GTC be, or become, wholly or partially invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. In place of the invalid provision, the valid provision that comes closest to the economic purpose of the invalid clause shall be deemed agreed. The same applies correspondingly to any gaps in the contract.
d) Written form clause: Amendments or supplements to these GTC or to the contract require written form to be effective (text form is not sufficient, unless otherwise agreed). The written form requirement may itself only be waived by written agreement of the parties.
