1.1 In all contractual relationships in which Hanko GmbH (“Hanko”) provides licensing, customization, parameterization, and maintenance of software for customers (“Customer”), these general terms and conditions (“T&C”) apply exclusively together with the conditions of the offer provided by Hanko to Customer with reference to these T&C (“Contract” or “Contract Documents”). These T&C as amended from time to time shall apply as a framework agreement for future contracts, without Hanko having to reference these T&C again for each future contract. In the event of inconsistencies between these T&C and the Contract, the Contract shall take precedence over these T&C.
1.2 Conflicting provisions and provisions overlapping with the Contract Documents – in particular those in general terms and conditions of Customer – do not become part of the contract, even if those provisions are attached to an order of Customer and even if Hanko executes such order without objecting explicitly to these general terms and conditions.
2.1 These T&C apply also to all pre-contractual relationships between Hanko and Customer. All items and software delivered by Hanko to Customer before the start of the Contract, in particular but not limited to proposals or test programs, are the intellectual property of Hanko. These items and software may not be duplicated or made available to third parties. In case there is no subsequent Contract between Hanko und Customer, the Customer shall return all items and/or software to Hanko and/or delete them. The Customer may not use the items and/or software once it has become clear that there will be no subsequent Contract.
2.2 Unless an offer of Hanko does not explicitly state otherwise, the offer is valid for 4 weeks. Hanko may accept offers by the Customer within 4 weeks in writing.
2.3 The conclusion of the Contract, subsequent amendments, and supplements as well as any notice of termination, reminder, settings of deadlines, and other declarations of intent in connection with the Contract shall always be in writing. This also applies for a waiver of the written form. Instead of the written form, electronic form (Section 126a German Civil Code, BGB) or text form (Section 126b BGB) shall suffice. The parties clarify that the form requirement is satisfied by the exchange of signed .pdf copies and by the usage of services like DocuSign or Adobe Sign. The parties clarify that the conclusion of the Contract and any subsequent amendments and supplements to the Contract through the exchange of signed .pdf copies and the use of such DocuSign or Adobe Sign services comply with the form requirement. Verbal ancillary agreements are forbidden and will not be made. Section 127 par. 2 BGB shall not apply in all other respects.
2.4 Undertakings of any kind which constitute additional obligations of Hanko other than set out in these T&C and the Contract Documents, need the explicit and written approval of Hanko by a declaration signed by the management of Hanko.
3.1 The Scope of services is defined in the Contract. The technical specification of the software is set out in the respective specification of services in the Contract, which sets out the scope of services and the characteristics of the software in a comprehensive and exclusive manner. Hanko is not obliged to provide characteristics not set out in the specification of services. Hanko shall always make available the latest version of the contractual software to Customer. Customer agrees that Hanko shall always make available the latest version of the contractual software to Customer.
3.2 The parties will contractually agree, if (i) Hanko grants Customer the right to use the contractual software over a HTTP-Browser supported web application and/or by communicating with the Hanko HTTP-API (“SaaS Solution”), (ii) Hanko will hand over the contractual software on a data carrier or via download and the Customer will install the contractual software on its computer systems (e.g., its own hardware, or hardware of third parties, or cloud solutions), or (iii) Hanko will install the contractual software remotely or on site on Customer’s computer systems. Hanko shall provide the contractual services according to the technical standards applicable in the moment the contract has been executed, conditioned upon the Customer fulfilling its contribution obligations (Section 4 hereof).
3.3 The Customer shall inform himself about the substantial functionalities of the contractual software before the start of Contract in an exhaustive manner and bears the risk that the software satisfies his factual needs and is compatible with Customer’s software including its proprietary application and application or software of third parties (e.g., IAM system, Identity Provider, online shop software, ERP systems, web browser, etc., together “Customer Software”) and its computer systems.
3.4 The employees appointed by Hanko during the execution of the Contract are not integrated in the business of the Customer and the Customer may not instruct these employees. The Customer may only give instructions to the contact persons nominated by Hanko in the Contract within the limits of the scope of the Contract.
3.5 The decision which employees Hanko nominates lies solely with Hanko. Hanko may replace the nominated employees with other employees at any time. Hanko may use freelancers and third parties to fulfil its contractual obligations in its entire discretion.
3.6 Hanko may modify the contractual software at any time in its entire discretion, in particular to bring it up to the latest technical standards, to enhance its functionality, to make it compliant with applicable laws and/or to take into accounts changes in the market (“Update”). Hanko may decide in its own discretion whether and how it executes Updates. The Customer will accept any Update. Hanko does not give any guarantees and assumes no responsibility that the Updates are compatible with the software and computer systems of Customer.
3.7 Hanko creates full backups of its data backup systems daily. Such backups will be stored for a maximum of 14 days and comprise all past data of Customer that have been captured in accordance with the latest configuration that has been captured. The backups are stored in multiple locations. The backups relate to the entire system, restoring individual Customer data will be evaluated on a case-by-case basis and will be invoiced against the hourly rate card.
4.1 During the entire term of the Contract, the Customer needs to cooperate with Hanko closely and faithfully and shall contribute reasonably to the fulfilment of the Contract. Insofar, the Customer shall actively contribute to the provisions of services by Hanko to the extent necessary, e.g., by providing, if necessary, employees, workspace, hard- and software, data, and telecommunication facilities, by answering questions, and by controlling work results of Hanko.
4.2 The Customer names a qualified contact person/project manager and notifies his contact details that allow contact with the contact person and his designated proxy at any time. The contact person must be able to make the necessary decisions by himself or to procure them immediately on behalf of the Customer. The Customer shall immediately notify to Hanko all modifications of the contact details in writing. The Customer shall provide his employees which have specific know-how necessary for the execution of the Contract and to the provision of the contractual services by Hanko at no cost.
4.3 Any prejudice and additional costs resulting from a breach of this Section 4 and other contribution obligations of the Customer set out in the Contract are at the expense of Customer. In particular, the Customer is not dispensed from his obligation to pay the contractual fees, if Hanko cannot provide services due to deficient or default contributions of Customer, his contact persons, or other employees of Customer.
5.1 The remuneration is set out in the Hanko pricelist as applicable from time to time unless otherwise explicitly set out in the Contract. All prices are exclusive of VAT, if applicable. Hanko is entitled to invoice partial services. Services calculated against rate card will be invoiced at the beginning of a month for the preceding month.
5.2 Travel and out-of-pocket expenses shall be invoiced separately.
5.3 Payments are due within ten (10) days after receipt of invoice without discount. After the due date, Hanko invoices interest for default at the applicable statutory rate.
5.4 In case payments are not made or not made on time, Hanko is not obliged to deliver services and may refuse the provision of services until full and final payment. This includes the right to suspend access to the services by Costumer until full and final payment.
5.5 In the event the consumer price index for Germany (base 2010 = 100) as published by the Federal Statistical Office changes by at least 10% (or points) compared to the index published in the month of the execution of the Contract, each party may ask for an adjustment of the usage/license fee. The benchmark for such adjustment shall be the change if it seems equitable. The adjustment of the usage/license fee will become effective in the month following the ask for adjustment. In the event of each additional change in the index compared to the last change in the index, this clause applies mutatis mutandis.
6.1 Hanko holds all rights and titles in the contractual software, its documentation, and all other services provided to Customer, including but not limited to Confidential Information, concepts, specifications, integration scenarios, examples of code including all related copies and including all patents, technical property rights, trademarks, copyrights, and rights to business secrets of Hanko.
6.2 Hanko grants Customer, unless otherwise explicitly stated in the Contract, an ordinary, non-exclusive, non-transferable usage right in relation to the contractual software for the contractually agreed purpose of use of the software and its results and for its own business purposes during the contractually agreed term. The Customer is not entitled to otherwise use the software. The usage right is granted conditioned upon full and final payment of the contractually agreed fee (Section 5 of these T&C). Until full payment, the use of the software by Customer is only tolerated by Hanko and may be revoked at any time.
6.3 In case the Customer uses the contractual software in a manner that is not consistent with the granted usage, Hanko may, in its sole entire discretion, request Customer to immediately cease all inconsistent use or pay an adequate and customary fee for the inconsistent use. The Customer will notify Hanko immediately in writing in case it becomes likely that the inclusive volume will be exceeded by at least 20%.
6.4 The Customer may not copy, translate, decompile, dissemble, reverse-engineer or otherwise modify or adapt the Hanko software, the documentation, the service description, literature, and other Hanko-relevant materials.
6.5 Hanko reserves the right to enter into agreements with third parties or enter into agreements about products and software, including but not limited to third parties that are competitors of Customer. Hanko is also entitled to develop, market, and sell products and software that encompass similar functionalities than the contractual software, regardless of the fact whether it is standard software developed by Hanko or customized software developed for Customer.
7.1 Hanko provides the contractual services in a manner that meets substantially the agreed characteristics.
7.2 In case of deficiencies, the Customer shall immediately notify Hanko in writing by providing an exact description of the problem and all useful information to remedy the deficiency.
7.3 The laws of lease deficiencies apply to deficiencies in the contractual software. The same applies to all other faults related to the use of the contractual software. Unless explicitly set out otherwise in the Contract, Hanko guarantees a monthly minimum availability of the contractual software of at least 99,5 % (“Uptime”). When calculating the availability, downtime due to maintenance of up to 1 hour per month and allowed downtime is not taken into account. Allowed downtime means the following events that result in the unavailability of the contractual software: (i) Force majeure, (ii) Malfunction of the Customer Software and/or computer systems of Customer; (iii) Interruption/non-availability of internet-connection that Hanko is not responsible for; (iv) Acts and omissions of Customer; and/or (v) Third party activities, including denial of service attacks.
7.4 The Customer is not entitled to offset any claim for reduction due to defects against the agreed fees other than as set out in these T&C. Respective claims of unjustified enrichment and/or damages are reserved unless they relate to a breach of the uptime guarantee.
7.5 The right of rescission of Customer for refusal of use according to Sect. 543 par. 2 sub-par. 1 No. 1 BGB is excluded unless the reestablishment of the agreed use has to be considered as ultimately failed.
7.6 Hanko does not make any guarantee whatsoever concerning the compatibility of the contractual software with an interface of customer or with other Customer Software. In the moment of the execution of the Contract, Hanko is not aware of any incompatibilities of the contractual software with standard web browsers, that comply with the standards of the World Wide Web Consortium (W3C) in in its most recent version (e.g., Google Chrome, Firefox, Safari or Edge).
7.7 In case Hanko provides services during evaluation and remedy of deficiencies without being obliged to provide these services under these T&C, the Contract or by law, Hanko may invoice the respective effort to Customer. This applies in particular if a deficiency notified by Customer cannot be proven or as a consequence from Customer having breached its contributory obligations, improperly having used the contractual services or not having accepted the support offered by Hanko.
7.8 In case of substantial deficiencies related to a successful rendering of services (works) proven by Customer, Hanko shall provide supplementary performance through either by delivery of a deficient free work or by remedy of the deficiency – the choice being at Hanko’s entire discretion. The supplementary performance may also consist in Hanko identifying reasonable possibilities to Customer how to avoid the impact of a deficiency. The Customer is not entitled to reimbursement of expenses by Hanko or by third parties commissioned by Hanko after the supplementary performance has been executed. In case supplementary performance ultimately fails, the Customer is entitled to reduction or rescission. The limitations set forth in Section 8 apply to claims of damages or reimbursement of expenses caused by deficiencies. The Customer shall have no other rights than the ones set forth in Section 7.8 hereof in relation to deficiencies.
7.9 This section 7 neither applies for services that target a successful rendering of services nor applies to a temporary assignment of items or rights. In those cases, the Customer shall notify Hanko in writing if the services are not provided or if the services are provided in a deficient manner and shall set a deadline to provide the services as contractually agreed or to remedy the breach by other means.
8.1 Hanko is only fully liable in the event of intent and gross negligence on the part of their legal representatives and/or vicarious agents as well as in the event of the absence of characteristics for which Hanko has assumed a guarantee. In the event of negligence, Hanko shall only be liable if it breaches an obligation, which is essential for achieving the purpose of the Contract (cardinal obligation) – and only to the extent of the foreseeable damage typical of the Contract and limited to an amount corresponding to the overall fee (or the value in case of yearly invoicing) of the last 6 months under the Contract. In this case, Hanko shall also not be liable for indirect damages, consequential damages and/or loss of profit. Any further liability is excluded. The limitations of liability in this Section 8.1 shall also apply in favor of representatives, employees and third parties acting on behalf of Hanko.
8.2 The limitations of liability set forth in the preceding Section 8.1 shall not apply to liability for personal injury (injury to life, body, health), fraudulently concealed deficiencies and liability based on mandatory statutory provisions, in particular under the German Product Liability Act (ProdHaftG).
8.3 All claims against Hanko for damage or reimbursement of wasted expenses are barred after 2 years upon Customer becoming aware of the damage or should have become aware. Regardless of Customer being aware or should have become aware, damage claims are barred 3 years upon the event that has caused the damage. The aforementioned limitation shall not apply in cases where Hanko acted with intention or gross negligence, in case of personal damage or liability arising from mandatory law, in particular from the ProdHaftG. This Section 8.3 does not apply to time limits for defects.
8.4 Liability for data loss caused by negligence shall be limited to the typical cost of recovery that would have been incurred if backup copies had been made regularly and in accordance with the risks involved.
8.5 The use and/or integration of the contractual software before acceptance is at Customer’s sole risk. All liability of Hanko is excluded in this case.
8.6 The liability provisions in Sections 8.1, 8.2 and 8.3 apply mutatis mutandis to the Customer.
8.7 Hanko shall hold Customer fully indemnified against claims of third parties (including statutory legal costs) made against Customer for breach of patent, intellectual property, trademark, or other third-party rights by Hanko if the Customer has used the services in compliance with the Contract.
9.1 Hanko and the Customer undertake to not disclose to third parties any and all information, documents, knowledge, and experience – In whatever form – known or made available to the other party in the course of the execution of the Contract (including the fact that the Contract was concluded) (“Confidential Information”) and will take reasonable measures to avoid unauthorized disclosure or misuse of the Confidential Information, including, but not necessarily limited to, taking such security precautions as they take to protect their own Confidential Information. Confidential Information of Hanko includes, but is not limited to, information relating to know-how, business models, processes, techniques, and concepts, to information relating to uses software of third parties, documentation and product specifications as well as the contents of the offer and the software developed by Hanko including its source code.
9.2 The confidentiality obligation pursuant to Section 9.1 hereof shall not apply to Confidential Information disclosed by a party if and to the extent that (i) such Confidential Information was already lawfully in its possession prior to disclosure and without confidentiality obligation, (ii) such Confidential Information was disclosed without its fault or otherwise became generally known through with no fault of such party, (iii) such Confidential Information was lawfully disclosed to it by one or more third parties after conclusion of the Contract without confidentiality obligation, i.e. without breach of the Contract by the receiving party, (iv) it is released for disclosure in writing by the disclosing party, (v) it has been independently developed by the disclosing party or any of its affiliates at the time the Contract became effective or thereafter, regardless of disclosure by the other party, (vi) it has been made available by the disclosing party to a third party without any corresponding confidentiality obligations or restrictions, (vii) it must be disclosed in accordance with statutory or administrative provisions, if the disclosing party is immediately notified of this requirement and the scope of the disclosure is restricted as far as possible, or must be disclosed pursuant to a court or administrative decision, if the disclosing party is immediately notified of this decision and if there is no possibility to challenge the decision, or (viii) its disclosure to third parties is necessary for the performance of the Contract.
9.3 The Customer may grant access to Confidential Information that he has received from Hanko under the Contract, to his employees and employees of its affiliated companies according to Section 15 et seq. Stock Corporation Act (AktG) only on a need-to-know basis. The Customer may grant third parties access to Confidential Information only if approved by Hanko. The Customer shall inform all persons he grants access to Hanko’s Confidential Information about Hanko’s rights and the confidentiality obligations in relation to such Confidential Information and shall obligate these persons in writing to comply with the confidentiality obligations.
9.4 The confidentiality obligations under this Section 9 shall continue to apply for a period of 2 years after the Contract has expired.
9.5 Hanko is entitled to use the cooperation with the Customer as reference for its own marketing purposes, in particular in marketing materials (tombstones), press releases or on the internet (e.g., on its homepage). In this regard, Hanko is entitled to use the company name and the brand presence of Customer (e.g., logo, trademark).
9.6 Hanko and Customer will agree on additional publications, press releases or other communications that go beyond Section 9.5 before their release.
9.7. The parties shall comply with all applicable data protection laws. The Customer ensures that Hanko is informed about all relevant facts that Hanko needs to be aware due to reasons of data protection and confidentiality. Access data (username, password, API secret, etc.) intended for the protected data access of Customer must be stored carefully and must not be made accessible to unauthorized third parties. If Customer becomes aware that an unauthorized third party has obtained access data or if there is a reasonable suspicion, the Customer shall inform Hanko immediately in writing.
10.1 Term, termination, and termination deadlines are set out in the Contract.
10.2 Regardless of the contractual conditions, a termination for cause is always possible. A good cause that allows termination for either party is if (i) a notice of opening of insolvency procedure has been filed against a party or insolvency proceedings have been opened or such opening having been denied for lack of assets, (ii) enforcement measures against a Party having been unsuccessful or enforcement measures against a Party have been imposed and have not been abrogated within 1 month (e.g. arrest abrogation); or (iii) a party is in breach of material provisions of the Contract and/or these T&C or the Contract. A good cause that allows termination for Hanko is in particular also, if (i) the Customer is in defaults of a considerable part of or all 2 consecutive monthly fee payments, or in default with an amount equivalent or bigger than 2 month’s fee payments over a longer period of time than 2 months; (ii) the Customer ceases its payments or the pecuniary circumstances of the Customer deteriorate materially after the execution of the Contract, (iii) the majority of shares in the Customer has changed (Change of Control) and/or (iv) the Customer is in breach of its contributions obligations to a considerable extent which applies also for a first breach
10.3 All terminations need to be in writing.
10.4 Upon the effective termination of the Contract (i) each party is obliged to return or to destroy on request all Confidential Information of the other party. The complete return or destruction has to be declared in writing on request. This shall not apply if the receiving party is obligated by law to store them independently and may not delegate such obligation to third parties or in so far as the information and documents may be needed for evidence purposes due to ongoing or pending lawsuits. Confidential Information is also excluded from the aforementioned obligation to destroy if it is secured automatically by backups made by data backup systems to which there is no systematic access; (ii) the Customer has to cease immediately the use of the software, to erase the software from his computer systems, and to return all access data and documents concerning the software, including all backup copies to Hanko; and (iii) all usage rights granted to Customer terminate unless otherwise agreed in the Contract.
10.5 In case of termination, the Customer may not demand repayment of fees paid to Hanko for services already provided by Hanko.
10.6 Upon written request by Customer Hanko will provide termination support which will be invoiced at cost. Termination support will include the export of all raw data collected until expiration of the Contract. In case the Customer does not request such a raw data export in due time, Hanko will irrevocably delete all raw data after expiration of the Contract.
11.1 The most recent version of the T&C in the moment of execution of the Contract applies to the Contract. Hanko reserves the right to amend these T&C at any time for future business transactions. In the event of an existing Contract, the intended change must be communicated to the Customer in writing. The changes will be deemed approved if the Customer does not raise objections in writing. Hanko shall provide a special notice as to this consequence in the announcement of the changes. The written objection must be received by Hanko within 4 weeks of the notification of the changes. If such objection is raised, the Contract will remain in force without the proposed changes. The right of the parties to terminate the Contract remains unaffected thereof.
11.2 Only German law applies under exclusion of its conflict of law provisions and the United Nations Convention on the International Sales of Goods from 11 April 1980.
11.3 Any disputes under the Contract and these T&C may be brought exclusively (if legally permissible) in the courts located in Kiel, Germany and the parties hereby consent to the personal jurisdiction and venue of these courts.
11.4 Should one or several provisions of these T&C be or become fully or partly invalid, the validity of the remaining provisions of these T&C will not be affected thereby.
Date: February 2021