Terms & Conditions

Terms and Conditions of blu Systems GmbH, Keltenring 11, 82041 Oberhaching (hereinafter referred to as “blu”)

As of June 2024

1. Services

1.1. These General Terms and Conditions (“GTC”) apply to the provision of services (“Services”) by blu Systems GmbH, blu Eye GmbH, and blu Guard GmbH, based in Oberhaching, Germany, hereinafter referred to as “blu.”

1.2. Each blu company is a separate and independent legal entity and provides its Services on the basis of written contracts with Customers that refer to these GTC.

1.3. Unless otherwise specified in the contracts, the term “Customer” shall refer to all subsidiaries and member companies of the Customer contracting party.

1.4. blu and Customers are referred to in these GTC collectively as “Contracting Parties” or individually as “Contracting Party.”

2. Project Team

2.1. Persons involved in the provision of the Services shall form the project team.

If persons are named in the contracts with regard to the provision of services, blu shall ensure that these persons are involved to the extent reasonably possible. blu is entitled to replace these persons with persons of equivalent skills if necessary.

2.2. Unless otherwise specified in the contracts between the Contracting Parties, blu shall independently determine its place of work, working hours, and manner of working at its own discretion.

3. Customer’s Cooperation Obligations

3.1. The Customer shall provide blu with all documents and information necessary for the provision of the Services in a timely manner and without separate request. In addition, the Customer shall inform blu in good time of any events and circumstances that may be relevant to the provision of services. This also applies to documents, information, events, or circumstances that only become relevant in the course of the provision of services.

3.2. blu assumes that the information and documents provided by the Customer are correct and complete. Upon request, the Customer shall provide blu with written confirmation of the correctness and completeness of the information and documents.

3.3. If, at the Customer’s request or based on its own assessment for reasons of efficiency or due to the nature of the Services, blu carries out its work at the Customer’s premises or uses the Customer’s computer or communication systems, the Customer shall take the necessary precautions regarding access, security, IT security, premises, licenses, approvals, etc., at no additional cost to blu.

3.4. blu is entitled to rely on verbal or written instructions, communications, or information from persons whom blu knows or has reason to believe to be authorized to act as contact persons on behalf of the Customer for this purpose (“Authorized Persons”).

4. Work Results

4.1. blu shall provide the Customer with the results of its services (“Work Results”) in writing or in electronic form in accordance with Section 8. The Work Results shall prevail over any drafts, interim reports, or verbal information. The Customer may only rely on drafts, interim reports, or verbal information if blu has confirmed their binding nature in writing.

4.2. The implementation of blu’s recommendations for action is reserved exclusively for the Customer.

4.3. blu is under no circumstances obliged to adapt the Work Results to circumstances arising after their delivery to the Customer.

4.4. The Work Results are intended exclusively for the Customer’s use and information of the Customer. Without blu’s prior written consent, the Customer shall not disclose or quote the Work Results, in whole or in part, unless the Customer is obliged to do so by law or official orders. In this case, the Customer must inform blu in writing in advance. The Customer may disclose the Work Results to its external advisors in connection with all matters to which the services relate, provided that the Customer informs them that:

a.) disclosure by them (except for their own internal purposes) is not permitted without the prior written consent of blu, and

b.) blu, to the extent permitted by law, assumesno responsibility or liability towards such external advisors in connection with the provision of the Services.

5. Confidentiality and Data Protection

5.1. Confidentiality

5.1.1. The Contracting Parties undertake to keep confidential for an indefinite period all information made available to them in connection with this contract which is designated as confidential or which, under other circumstances, is reasonably recognizable as business or trade secrets of the other contracting party, and not to record, disclose, or otherwise exploit such information unless this is necessary to achieve the purpose of the contract. The Contracting Parties shall ensure, by means of appropriate contractual agreements with their employees and agents, that they likewise refrain from any use, disclosure, or unauthorized recording of such business and trade secrets for an indefinite period and shall only grant them access to the secrets to the extent necessary.

5.1.2. The confidentiality obligation pursuant to 5.1.1. does not apply insofar as the permissions and exceptions set out in Sections 3 and 5 of the German Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG) apply, nor to persons who are authorized by law or by permission of the other contracting party to take note of the information and are obliged to maintain confidentiality, nor to publications that may be required by one of the Contracting Parties on the basis of legal provisions and/or official orders. Confidential information that is generally known or becomes generally known without the disclosing party being responsible for this is not or is no longer subject to the confidentiality obligation. The existence of one of the above exceptions must be proven by the party invoking it.

5.2. Data Protection

5.2.1. The parties shall comply with the data protection regulations applicable to them, in particular the GDPR.

5.2.2. If the processing of personal data is necessary for the provision of Services, the parties shall conclude a corresponding data processing agreement (DPA) prior to the start of processing, insofar as this is required by the legal relationship.

6. Intellectual Property Rights / Non-Exclusivity

6.1 All copyrights and other intellectual property rights in the Work Results, including documents, know-how, analyses, or Work Resultscomputer programs, as well as to work methods and work processes, shall vest exclusively in the respective blu company or its licensors.

6.2 Upon full payment of the fee, blu grants the Customer a perpetual, non-transferable, and non-exclusive right to use the Work Results for its own use, as described in the contracts between the Contracting Parties or in the provisions of these GTC.

6.3 blu is entitled to use and further develop general knowledge, know-how, experience, and skills acquired by blu in the course of providing its Services in its work for other Customers.

7. Remuneration, Payment Terms, and Additional Costs

7.1 All prices are net prices, plus the applicable statutory value-added tax.

7.2 Unless otherwise stated, blu is bound by the prices contained in its offers for 90 days from the date of the offer. The prices stated in blu’s order confirmation shall prevail. Additional deliveries and/or services will be charged separately.

7.3 If payment for the services provided by blu is based on time spent, a daily rate of eight working hours and a monthly rate of 174 working hours shall apply, unless otherwise agreed (e.g., fixed price). Services provided by blu or its subcontractors that exceed this will be remunerated on a pro rata basis. The daily working hours shall correspond to those of the contractual partner; alternatively, to the day shift at the contractual partner’s premises; or, failing that, to the period from 8:00 a.m. to 6:00 p.m. Services provided by blu or its subcontractors outside these shifts will be invoiced with the following surcharges on the applicable rate,, which may be cumulative: night surcharge from 6:00 p.m. to midnight is 50%, night surcharge from midnight to 8:00 a.m. is 100%, saturday surcharge is 100%, sunday/public holiday surcharge is 100%. The location of the employee’s actual place of work is relevant for public holidays.

7.4 For services provided by blu or its subcontractors outside blu’s registered office, travel costs, travel time, expenses, and accommodation costs will be invoiced on a time and material basis. Travel time shall be considered working time.

7.5 blu invoices the contractual partner monthly for Services actually rendered. blu shall notify the contractual partner of the time spent on the invoices at the beginning of the month following the provision of Services. The transmitted time/service recording shall be deemed to have been accepted by the contractual partner if the latter does not object in writing within a period of 10 working days from receipt and provided that the contractual partner has been informed of the consequences of a late objection. If, in the context of fixed-price projects, a catalog of Services has been processed and this has been reported to the contractual partner in writing as completed, acceptance must be declared by the contractual partner within 14 days. If the contractual partner does not declare acceptance, acceptance shall be deemed to have been granted upon expiry of this period.

7.6 The Customer shall pay the remuneration for the Services to the extent specified in the contract. Unless otherwise specified in the contract, remuneration is due within 30 days of the invoice date. All amounts are subject to statutory value added tax.

7.7 The Customer may only offset claims against blu that are undisputed, pending in court, or legally established.

8. Communication and Data Exchange

8.1 Unless otherwise instructed by an Authorized Person of the Customer, blu may communicate with the Customer or exchange data Customerin unencrypted form, including via direct connections or remote access to blu’s network infrastructure. In doing so, the CCustomer expressly accepts the risks associated with such unencrypted communication and data exchange.

8.2 For the purpose of providing the Services, blu may use software and servers that are either controlled by blu or operated by third-party IT service and infrastructure providers.

9. Force Majeure, Delivery Delays

9.1 blu shall not be liable for impossibility of delivery or for delivery delays if these are due to force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g., operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy, or raw materials, difficulties in obtaining necessary official approvals, official measures, or the non-delivery, incorrect delivery, or late delivery by suppliers) for which blu is not at fault.

9.2 If such events make delivery or performance significantly more difficult or impossible for blu and the hindrance is not merely temporary, blu shall be entitled to withdraw from the contract.

9.3 In the event of obstacles of a temporary nature, the delivery or performance deadlines shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, the Customer cannot reasonably be expected to accept the delivery or service, it may withdraw from the contract by immediately notifying blu in writing.

10. Prohibition of Transfer, Succession

10.1 Prohibition of transfer: The rights granted by these GTC and pursuant to the contracts between the Contracting Parties are personal to the CCustomer and may not be assigned to any third party without blu’s prior written consent.

10.2 Successor company: Notwithstanding the foregoing, the respective contracting party retains the right, after prior written notification to the other contracting party, to assign the rights and obligations arising in these GTC and in accordance with the contracts between the Contracting Parties to a successor company. This shall not apply if such successor company thereby becomes a direct competitor of the other contracting party. In the event of a permitted assignment, the respective successor shall assume all rights and obligations arising from this contract.

11. Subcontractors, Third-Party License Terms

11.1 In performing the Services, blu shall be entitled to engage the services of third parties, in particular freelancers, as necessary. In this case, they shall act as blu’s subcontractors or agents. blu guarantees that the employees or vicarious agents involved in the performance of the services are bound to secrecy. blu shall be liable in every respect for the actions of these third parties as if they were employees of blu. The Customer may only reject persons whom blu engages to carry out the project for good cause.

11.2 By concluding this contract, the contracting party agrees to the use of companies affiliated with blu within the meaning of §§ 15 et seq. of the German German Stock Corporation Act (Aktiengesetz – AktG) as subcontractors.

11.3 If third-party software is used after approval by the Customer, the respective third-party license terms shall prevail.

12. Liability and Limitations of Liability

12.1 The Contracting Parties shall be liable to each other without limitation for damages caused by intend or gross negligence, as well as in the event of culpable injury to life, limb, or health.

12.2 In the event of a negligent breach of duty, the Contracting Parties shall only be liable to each other in the event of a breach of essential contractual obligations. Essential contractual obligations are those obligations whose performance is essential for the proper execution of the contract or whose breach jeopardizes the achievement of the purpose of the contract and on whose performance the other party may regularly rely. In such cases, liability shall be limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract.

12.3 In all other cases, liability is excluded.

12.4 The above limitations of liability do not apply to blu’s liability under the Product Liability Act, Article 82 GDPR, or to guarantees given in writing.

12.5 The above limitations of liability apply accordingly in favor of blu’s corporate bodies, legal representatives, employees, and other vicarious agents.

12.6 Insofar as blu provides technical information or advice and this information or advice is not part of the contractually agreed scope of Services owed by blu, such information or advice  shall be provided free of charge and without any assumption of liability.

13. Termination; Return and Destruction of Data after Contract Termination

13.1 Termination

13.1.1 Unless otherwise agreed between the Contracting Parties, the contract term, termination, cancellation, and applicable deadlines are regulated in the contracts of the Contracting Parties. Termination must be made in writing.

13.1.2 The right to extraordinary termination for good cause remains unaffected.

13.1.3 Termination shall have no effect on the rights of the Contracting Parties that arose prior to termination. blu’s claims for remuneration in accordance with Section 7 shall become due at the time of termination of the contracts.

13.2 Consequences of Termination, Teturn of Documentation

13.2.1 At the CCustomer’s request, blu shall destroy or return the documents and data carriers provided to it. blu is entitled to retain a copy of the documents and data carriers for evidentiary purposes.

14. Non-Solicitation

14.1 The parties mutually undertake not to directly or indirectly solicit any employees of the other party during the term of this contract.

14.2 For the purposes of this clause, solicitation means influencing an employee who is bound by an employment contract with the aim of inducing such employee to change employment

14.3 In the event of a culpable breach by one party of its obligations under Section 14.1, the other party shall be entitled to claim a contractual penalty of up to one year’s gross salary of the solicited employee from the breaching party. Upon request of the breaching party, the competent Regional Court in Munich shall review the contractual penalty for appropriateness, unless the breaching party proves that it did not solicit the employee.

14.4 The assertion of further claims, in particular for injunctive relief or damages, remains unaffected.

15. Publication, external representation

With the Customer’s consent, blu is entitled to expressly name the CCustomer as a user of blu’s Services in advertising materials and for general external marketing and representation purposes. Consent may not be unreasonably withheld.

16. Final Provisions

16.1 Applicable law and place of jurisdiction

The legal relationship between blu and the CCustomer is governed exclusively by the laws of the Federal Republic of Germany, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Munich.

16.2 Severability clause

The invalidity of individual provisions shall not affect the validity of the remainder of the contract. The Contracting Parties shall agree to replace such provisions with effective and enforceable provisions that come as close as possible to the meaning and economic purpose as well as the intention of the parties at the time of conclusion of the contract. The same applies in the event of a gap in the contract.

16.3 Written form requirement

There are no ancillary agreements to these GTC and contracts of the Contracting Parties have been made. Amendments and supplements must be made in writing to be effective. The written form is preserved in particular by sending declarations by email or fax, unless otherwise expressly agreed in this contract.

16.4 Entire Agreement; Exclusion of Third-Party Terms

These GTC and contracts between the Contracting Parties govern the business relationship between blu and the CCustomer with regard to the services described therein. Any terms and conditions of the CCustomer or third parties shall not apply, even if blu does not expressly object to them in individual cases. Any reference by blu to correspondence containing of referring to such terms and conditions shall not constitute acceptance of their validity. Customer