1. General

These terms and conditions apply to service contracts between Incobus and the client concerning • Reports, studies, consultations, and other assignments, • Creation and implementation of software including documentation, unless otherwise expressly agreed or mandatory by law.

If, in individual cases, contractual relationships are exceptionally established between Incobus and persons other than the client, the client must ensure that these third parties are also made aware of and agree to the following conditions before the contractual relationship between Incobus and these third parties begins.

2. Scope and Execution of the Contract

(1) The subject of the contract is the agreed service, service description, or project goals as stated in the corresponding order, and not a specific economic success. Incobus commits to executing the assignment with the required diligence.
(2) Incobus is entitled to use experts, external consultants, and institutions as assistants in fulfilling the assignment. Incobus must obtain prior consent from the client. Costs will be borne by Incobus unless otherwise agreed in the offer or assignment.
(3) Unless otherwise agreed in writing or implied by the nature of the assignment, the assignment does not include legal or tax audits.
(4) Changes to the assignment must be made in writing.

3. Duty of Disclosure by the Client, Place of Work

(1) The client must ensure that all documents necessary for executing the assignment are provided to Incobus in good time, even without special request, and that Incobus is informed of all events and circumstances relevant to the execution of the assignment. This also applies to documents, events, and circumstances that become known during Incobus’ work.
(2) The client is obligated to support Incobus as needed and to create all necessary conditions in their operating sphere for proper execution of the assignment. Upon request, the client shall provide Incobus with the required workplaces and working materials free of charge.
(3) Incobus is not responsible for any delays caused by the client.

4. Safeguarding Independence

The client ensures that nothing will be done to endanger the independence of Incobus employees. This particularly applies to offers of employment and offers to carry out assignments on their own account.

5. Reporting, Oral Information

If Incobus must present the results of its work in writing, only the written presentation is authoritative. All reports, studies, investigation results, etc., are submitted in writing unless otherwise agreed. Oral statements and information provided by Incobus employees outside of the scope of the assignment are always non-binding.

6. Protection of Incobus’ Intellectual Property

(1) The client agrees that reports, organizational plans, programs, designs, drawings, lists, and calculations produced by Incobus as part of the assignment will only be used for their own purposes unless otherwise agreed in writing.
(2) Any copyrights on the work results remain with Incobus. It is agreed that the client is granted the unlimited, time- and location-independent right to use the work results free of charge. Incobus may only use programs or other materials created for the client after obtaining the client’s prior written consent.

7. Acceptance

The acceptance of tasks, documentation, or similar deliverables must be done in writing. Such conditions are to be defined in advance.

8. Rectification of Defects

(1) The client is entitled to have any defects remedied by Incobus. Only if remediation fails can the client demand a reduction of the fee or cancellation of the contract; if the client is a merchant within the meaning of commercial law, a legal entity under public law, or a special fund under public law, cancellation can only be demanded if the service is of no interest due to the failure of remediation. Claims for reimbursement of expenses incurred by the client for the proper performance are excluded. Further claims for damages are governed by Section 9.
(2) Claims for rectification must be made in writing immediately upon discovery. The right expires six months after delivery of a written statement by Incobus, or, if no statement is made, six months after completion of the activity.
(3) Claims for defect rectification exist only if defects are reproducible or can be shown through machine-generated output. The client must report defects in a comprehensible form, stating relevant information for detecting the defect.
(4) The client must support Incobus as necessary in remedying defects, in particular by providing a data carrier containing the relevant program or documents and making working materials available.
(5) The obligation to remedy defects lapses for programs, systems, or documents altered by the client unless the client proves that the defect is not related to such alterations.
(6) Obvious inaccuracies, such as typing errors and formal defects in professional statements (reports, assessments, etc.) by Incobus, may be corrected by Incobus at any time, even vis-à-vis third parties. If inaccuracies call into question the results of the statement, Incobus may withdraw the statement even vis-à-vis third parties. The client shall be informed beforehand whenever possible.

9. Liability

(1) Incobus shall be fully liable for damages arising from defects of title and the absence of guaranteed characteristics. Liability for initial inability to perform is limited to five times the transfer fee, a maximum of one million euros, and to damages typically foreseeable in software provision.
(2) Otherwise, Incobus is only liable without limitation for intent and gross negligence of its legal representatives and senior executives. For the fault of other vicarious agents, Incobus is only liable to the extent of liability for initial inability. The maximum liability for property damage is limited to 1,000,000 euros.
(3) For minor negligence, Incobus is only liable if a duty is violated whose fulfillment is essential for achieving the contract purpose (cardinal duty). In such a case, liability is limited accordingly. If Incobus is delayed due to bindingly promised deadlines, the client may claim a delay penalty of 0.5% per full calendar week, up to a maximum of 5% of the contract value affected by the delay. Additional claims are only valid if the delay is due to at least gross negligence or breach of an essential contractual obligation.
(4) Liability for data loss is limited to the typical recovery cost that would have occurred if backups were regularly made. Claims for loss of stored data are excluded if proper backup would have prevented the damage.

Incobus is not liable for: a) The accuracy of the manufacturer’s statements regarding reliability or performance of recommended hardware or software;
b) Material defects in recommended hardware;
c) Entrepreneurial risks such as wrong decisions based on business judgment;
d) Breaches of foreign law.

10. Confidentiality, Data Protection

(1) Incobus is obliged to maintain confidentiality about all information obtained during its activities, unless released by the client or disclosure is necessary for fulfilling the contract.
(2) Incobus is authorized to process entrusted personal data within the purpose of the assignment or have it processed by third parties.

11. Default of Acceptance, Insufficient Cooperation by the Client

(1) If the client is in default of accepting the offered service or fails to cooperate as required, Incobus may terminate the contract. Incobus is entitled to claim compensation for additional expenses and damages incurred, even if the termination right is not exercised. The client must be informed immediately of any resulting damage. In the event of termination, Incobus may invoice based on work performed.
(2) Incobus is not liable for damages arising from the client’s or their third parties’ cooperation; no defect removal claims exist in this case.

12. Remuneration

(1) In addition to its fees and charges, Incobus is entitled to reimbursement of expenses according to agreed travel cost rates. VAT will be added. Multiple clients are jointly and severally liable.
(2) Offsetting against claims of Incobus for fees and expense reimbursements is only permitted with undisputed or legally established claims.
(3) Incobus shall issue monthly invoices for its services.
(4) Invoices are payable within 14 days of receipt without any deduction.

13. Retention and Handover of Documents

(1) Incobus will retain essential documents handed over or created in connection with the assignment for three (3) years.
(2) After settlement of its claims, Incobus must hand over all documents obtained from the client upon request, except for correspondence between Incobus and the client and documents already in the client’s possession. Incobus may make and retain copies of returned documents.

14. Components of the Offer; Order of Precedence

In the event of contradictions, the following order applies:

1. Client’s order

2. Offer

3. Applicable Law, Jurisdiction

(1) German law applies to all legal relations between Incobus, the client, and any involved third parties.
(2) If the client is a merchant, the place of jurisdiction is the competent court at the business location of Incobus. Otherwise, jurisdiction lies with the client’s registered office if located within Germany.