PROLOGA GmbH Services
General Terms and Conditions
Except in respect of the provision, licensed use, and maintenance of standard software, these present General Terms and Conditions and the provisions of the PROLOGA Services Pricing and Conditions List (herein: “Services PCL”) apply exclusively to every Order Form (see section 1.8) by which PROLOGA GmbH (herein: “PROLOGA” provides Services for another business, person or public-law juristic person or special fund (herein: Customer).
The provisions of the Software Agreement in the meaning of section 1.10 herein apply conclusively to the provision, licensed use, and maintenance of standard software.
No conflicting or other conditions, especially Customer’s general terms and conditions, form any part of the Order Form, even where PROLOGA has performed an Order Form without expressly rejecting such conditions. If, for reasons related to Customer’s technical arrangements or otherwise, Customer’s conditions of purchase or other standard terms are included by insertion, reference, enclosure, attachment or otherwise in Customer’s acceptance of PROLOGA’s offer (for example, in Customer’s purchase order), Customer cannot rely on those conditions or terms and they are not incorporated in and do not form any part of the Order Form, and failure to expressly exclude them does not imply their acceptance.
1.1 “Affiliate” means any legal entity that is affiliated with another company within the meaning of the German Stock Corporation Act (AktG), section 15.
1.2 “Confidential Information” means all information which PROLOGA or Customer protects against unrestricted disclosure to others, or that are deemed confidential according to the circumstances of their disclosure or their content. In any case, the following information is considered to be Confidential Information of PROLOGA: the PROLOGA Software, programs, tools, data and other material, that PROLOGA provides to Customer before or on the basis of the Order Form.
1.3 “Contract Works” means all the results of the Services provided by PROLOGA in the course of the respective Order Form.
1.4 “Customer Data” means any content, materials, data and information that Customer enters into in a by PROLOGA provided system as well as Customer-specific data that is derived from Customer’s use of the by PROLOGA provided system. Customer Data shall not include any component of Services.
1.5 “Consultant” means PROLOGA employees and subcontractors of PROLOGA including self-employed persons deployed by PROLOGA to perform its contractual duties or processing the Services.
1.6 “IP Rights” (“Intellectual Property Rights”) means any and every patent or other title to or right in an invention, copyright, right of authorship, mark, design, or other industrial right, and all rights to exploit or use it.
1.7 “Order Form” means the agreements on the provision of Services. It may be referred as “Contract” „SOW“ or „Agreement“.
1.8 “Services” means all those Services, which PROLOGA in the meaning of section “Applicability” paragraph 1 makes part of this Services GTC, that are described in an Order Form and/or thereto attached “Service Description” and/or “Scope Document”.
1.9 “PROLOGA Software” means (i) any and all standard software products (as well as relevant documentation) all as developed by or for PROLOGA or any of its affiliated companies; (ii) any new versions (especially without being limited to releases, updates, patches, corrections) thereof made available pursuant to the Software Agreement; and (iii) any complete or partial copies of any of the foregoing.
1.10 “Software Agreement” means the agreements on the license and support of standard software between PROLOGA (or an affiliate within the meaning of the German Stock Corporation Act, sections 15 ff or an authorized partner of PROLOGA) and Customer that grant Customer the right to use PROLOGA Software.
- PROVISION OF SERVICES
2.1 Customer must describe the requirements for the Services. On the basis of that description, PROLOGA and Customer must plan the provision of Services together. PROLOGA can, if necessary, submit a written concept for that purpose. Further details will be set out or referenced in the Order Form.
2.2 PROLOGA will decide which Consultant to deploy and reserves the right to replace any Consultant at any time. PROLOGA is liable for faults committed by another in performance of a contractual duty of PROLOGA on PROLOGA’s behalf (an “Erfüllungsgehilfe”) to the same extent as PROLOGA is liable for its own such faults. The Services can be provided at PROLOGA´s discretion either in the business offices of PROLOGA, at the Customer´s place of business or remote. Even where Services are provided at Customer’s facility, PROLOGA has sole managerial authority over its Consultants. The Consultants do not become integrated into Customer’s workforce. Customer can issue instructions only to PROLOGA’s project coordinator, and not directly to individual PROLOGA Consultants.
2.3 Customer bears the risk of ordered Services meeting Customer’s wishes and needs. If in doubt, Customer should obtain advice from employees of PROLOGA or third-party experts in good time. Customer has to examine, if Customer is required to license further or other licenses, resulting from the completion of the project. PROLOGA expressly informs Costumer that PROLOGA did not examine the requirement of further or other licenses and that this is not within the scope of the Order Form.
2.4 PROLOGA may document any discussions detailing or amending contractual provisions, especially the subject matter of the Order Form. Customer must check the discussion documentation as soon as possible and inform PROLOGA of any necessary amendments or additions.
2.5 All works and goods provided by PROLOGA to Customer before the conclusion of an Order Form (for example, proposals, test programs, designs) are property of PROLOGA (see section 7). They must not be copied or made accessible to third parties. If no Order Form is concluded, they must be returned or deleted and must not be used. In all other respects the provisions of these present General Terms and Conditions, especially the exclusions and limitations of liability in section 10, apply to all contractual and precontractual obligations.
If, with Customer’s agreement, PROLOGA provides Services other than those specified in the Order Form, the provisions and business terms of the Order Form are deemed also applicable to those Services.
2.6.1 PROLOGA can require a written acceptance statement from Customer for all Contract Works within Services that are amenable to acceptance and may provide Customer with a template for such statement. Customer must accept Contract Works without delay subject to the provisions in this section 2.6. To this end an acceptance log can be created for signature by Customer.
2.6.2 If an Order Form specifies several Contract Works that Customer can use individually, those several Contract Works will be subject to separate acceptance.
2.6.3 If an Order Form specifies subsets of the Contract Works, PROLOGA is entitled to submit subsets of the Contact Works for acceptance. Subsequent acceptance procedures will address only the correct functioning of the new subsets and whether the subsets accepted earlier correctly interact with the new subsets.
2.6.4 If the Order Form includes the creation of a design, for example for the implementation of standard software or the creation of modifications or add-ons to standard software, PROLOGA can require that the design be subject to separate acceptance.
2.6.5 Customer must inspect the Contract Works within 15 working days and either notify PROLOGA through the contact in writing that they are accepted or give a precise description of the defects found. If Customer does not give notice of acceptance or of defects within this period, or uses Contract Works without giving defect notice, the Contract Works will be deemed accepted. Immaterial defects are not grounds for withholding acceptance. In every case, Customer is deemed to have accepted any Contract Works it uses, in whole or any in part, in live operation.
2.6.6 PROLOGA must remedy defects notified in accordance with section 2.6.5 within a period that is reasonable for the severity of the defect. Customer must inspect the Contract Works within five working days after notice that the defect has been eliminated. All other provisions in section 2.6.5 also apply with the necessary modifications.
2.7. Period during which Services will be provided.
2.7.1. Dates and times are nonbinding except where Customer and PROLOGA have expressly agreed in writing that they are binding. PROLOGA’s duty to realize a design or concept does not commence until Customer accepts the design or concept.
2.7.2. If PROLOGA has to wait for collaboration or information from Customer or is otherwise hindered in the performance of the Order Form by any strike, lockout, official intervention, or any other circumstance where it is not at fault, times for delivery of goods and provision of Services are extended by a period equaling the duration of the hindrance plus a reasonable start-up period after the end of the hindrance. PROLOGA must notify Customer of the hindrance.
2.7.3 Working days are weekdays from Monday to Friday (8 a.m. to 5 p.m. CET) except German national public holidays, public holidays of the Federal State of Sachsen-Anhalt and December 24 and 31.
The characteristics of the services, technical data, specifications and performance of the respective order form or its attachments, as well as other documents or descriptions relevant to the order form, are used solely for the description of the services. They are not to be understood as a guarantee or an assured property.
If, and insofar as, in service descriptions, specifications or other documents related to the order form, "guarantees", "warranties", "assured characteristics", "stand for" or "securitization" and terms derived from the above terms are agreed upon, these do not constitute a guarantee within the meaning of the law (especially § 276 BGB) and not an attributable property.
The agreement of characteristics or other descriptions of the performance of a Service as well as the use of the above mentioned terms shall only be valid as a guarantee as defined by law, if expressly defined as guarantee in writing in a separate guarantee certificate for the respective order.
- CUSTOMER’S DUTY TO COLLABORATE
3.1 Customer must provide the operating environment (herein: “IT systems”) necessary for the provision of Services, in accordance with PROLOGA’s guidance where given. It is the responsibility of Customer to secure proper operation of the IT systems by entering into maintenance contracts with third parties if necessary. In particular, Customer must follow PROLOGA’s instructions.
3.2 Free of charge, Customer must provide all collaboration that PROLOGA requires in connection with performance of the Order Form, including, for example, human resources, IT systems, data, and telecommunications facilities. Customer must grant PROLOGA direct and remote access to the software and the IT systems. Customer must answer questions and inspect results. Customer warrants that any materials provided by it for PROLOGA to perform its contractual duties are free of defects in title that would preclude PROLOGA from performing those duties.
3.3 Customer must nominate in writing a contact for PROLOGA, with an address and email address at which the contact can be reached. The contact must be in a position to make necessary decisions for Customer or ensure that they are made without delay. Customer’s contact must maintain effective cooperation with PROLOGA’s contact. Customer’s employees whose activity is required must be freed from other activities to the appropriate extent.
3.4 Before commencing live operation with any provided Services, Customer must test it thoroughly for freedom from defects and for suitability in the situation. This also applies to Services it receives in connection with subsequent performance.
3.5 Customer must take appropriate precautions against the possibility that the Services may have or cause faults; such precautions include, for example, data backups, error diagnosis, and regular results monitoring. Except where otherwise expressly indicated in writing in individual cases, Consultants deployed by PROLOGA are always entitled to act on the assumption that all data with which they come into contact is backed up.
3.6 Customer undertakes to provide all further collaborative goods, works, and services needed for the performance of the Order Form. If necessary, the Order Form will specify any other provisions.
3.7 Performance by Customer of its general collaborative duties is a primary contractual duty and necessary precondition for the correct performance by PROLOGA of its Services.
3.8 Customer bears all consequences and costs resulting from breach of its duties and indemnifies PROLOGA from all claims by third parties arising from such infringement.
- CHANGE REQUEST-PROCEDURE
4.1 During the term of a project, both parties can request changes through their respective contacts (see section 3.3), in writing, to the agreed Services, methods, dates and times, and other details.
4.2 If Customer makes a change request, PROLOGA must inform Customer within 10 working days whether the change is possible or not and what impact the change would have on the Order Form with particular reference to the timeline and remuneration. Customer must thereupon inform PROLOGA in writing within 5 working days whether the change request is to apply or whether the Order Form is to be continued on the existing terms. If the investigation of a change request itself requires substantial work, PROLOGA is entitled to bill separately for that work.
4.3 If PROLOGA submits a change request, Customer must notify PROLOGA in writing within 10 working days whether it accepts the change or not.
4.4 Until there is agreement about the change, work will continue in accordance with the existing Order Form. Alternatively, Customer can require that all or part of the work be suspended or permanently ended in accordance with and subject to section 12.1. With effect from the first working day of suspension, remuneration is payable at the agreed rate, or, in default of an agreed rate, at the daily rate in the Services PCL, in respect of each PROLOGA employee whose work is suspended and each day of the suspension. The legal consequences of final cancelation are as provided in the German Civil Code, section 648a.
- FEES, PAYMENT, TAXES, RETENTION OF RIGHTS
5.1.1 Unless otherwise agreed in writing, the remuneration payable will be determined by the Services PCL valid from time to time.
5.1.2 PROLOGA is entitled to submit invoices for subsets of the Services.
5.1.3 Any resource-related invoice must include a list of the activities to which it refers. The listed details are deemed accepted unless Customer rejects them in writing within two weeks.
5.1.4 PROLOGA is entitled to require full or part payment in advance if there is no prior business relationship with Customer, if delivery is to be made outside Germany, if Customer’s registered office is outside Germany, or if there are any grounds to doubt that Customer will render payment punctually.
5.1.5 Customer is entitled to offset only claims that are uncontested or ordered by a court of law and to withhold payment or retain possession only to secure claims that are uncontested or ordered by a court of law. Subject to the provisions of the German Commercial Code, section 354a, it cannot assign its claims to a third party.
5.1.6 PROLOGA retains all title to and rights (section 7) in the Services until full satisfaction of its claims under the Order Form. Customer must immediately notify PROLOGA in writing if any third party gains access to the property to or in which PROLOGA retains title or rights and must also inform the third party of PROLOGA’s rights.
5.2 Invoicing; Due Date.
Payments are due 14 days after invoicing. No cash discount is available. PROLOGA is entitled to charge late payment interest from the due date at the statutory rate of penal interest.
Invoices to the customer are issued in electronic form, unless otherwise agreed with the customer. The invoice will be sent exclusively by e-mail to the address provided by the customer.
5.4 Taxes. All prices are subject to statutory sales tax / VAT or any other withholding tax.
- TERM / TERMINATION.
6.1 Term of Order Form. Unless otherwise agreed in the relevant Order Form, every Order Form comes into force on the date it was last signed and runs for the term specified in the Order Form.
6.2. Termination. Unless otherwise agreed, an Order Form may not be terminated with due notice. Extraordinary termination rights and the right to termination for just cause remain unaffected. Just cause for termination includes, without limitation, when Customer fails to perform a major contractual obligation within 30 days of written warning from PROLOGA, notably, for example, when the Customer is more than 30 days in default of a payment due and payable under the Order Form.
6.3 Effect of Termination. Upon termination of the Order Form, the parties shall irretrievably return all Confidential Information to the party that disclosed it, or at the disclosing party's request, destroy the Confidential Information of disclosing party and certify that it has complied with these obligations.
Between Customer and PROLOGA all title to and rights in the Services vest in PROLOGA, exclusively, notably copyright and rights of authorship, rights to inventions, and other industrial property rights, and including without limitation Services created to address the requirements of or in cooperation with Customer. Except as otherwise agreed in writing, once the installments due up to and including the acceptance have been paid in full, Customer is granted a nonexclusive license to the same extent and for same time-period, as granted to him by PROLOGA under the corresponding Software Agreement. Before accepting them, Customer may use the Services only to the extent necessary for test purposes. Customer is permitted to create necessary backup copies of the Services. Backup copies must be marked as backup copies and bear the same copyright and authorship notice as the original.
- CONFIDENTIALITY, DATA PROTECTION
8.1. Use of Confidential Information.
Each party undertakes forever to treat as confidential all Confidential Information of the other acquired in connection with the performance or processing of the Order Form and to use such information and secrets only to perform the Order Form. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of the respective Order Form or processing the Order Form. Any reproduction of any Confidential Information of the other party shall remain the property of the other party and shall contain any and all confidential or proprietary notices or legends which appear on the original.
With respect to the Confidential Information of the other party, each party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its representatives who need to know this Information to fulfill that party's contractual obligations or to processing the Order Form. As used herein, “reasonable steps” means those steps the receiving party takes to protect its own similar Confidential Information, which shall not be less than a reasonable standard of care; this includes Customer's careful safekeeping and protection of Confidential Information against misuse.
8.2 Exceptions. The above section 8.1 does not apply to any Confidential Information that: (a) is independently developed by the receiving party without recourse to the Confidential Information of the disclosing party, or is received lawfully and free of duty of confidentiality from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of the Order Form by the receiving party; (c) at the time of disclosure to the receiving party was known to be free of restrictions; or (d) the disclosing party agrees in writing is exempt from the above provisions; or (e) is rightfully acquired by the receiving party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure.
8.3 Confidential Terms and Conditions; Publicity. Customer shall treat as confidential the terms and conditions of the respective Order Form, in particular the pricing contained therein. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other. However, PROLOGA may use Customer's name in customer listings (reference listings) or to analyze details from the Order Form (for example, to forecast demand), as well as – subject to mutual agreement – as part of PROLOGA's other marketing efforts. This includes the provision for forecast analysis to and use by PROLOGA Affiliates. Insofar as this includes the provision and use of contact information of Customer’s contact persons, Customer shall secure the appropriate permissions where necessary.
8.4 Data Protection. The final provisions on data protection obligations of the contract partners in the context of possible order data processing (in particular in the context of trouble-shooting or the elimination of defects in the context of the Order Form) result from the Annex “Personal Data Processing Agreement for PROLOGA Support and Professional Services” attached to these Services GTC.
- DEFECTS AS TO QUALITY AND DEFECTS IN TITLE, OTHER FAULTS
9.1 In respect of any Contract Work that falls within the ambit of the statutory liability for quality and title defects, PROLOGA warrants, subject to sections 9.1 to 9.7, that no third-party rights are infringed by the grant of rights to Customer in section 7. PROLOGA warrants that the Contract Work is suitable for the use envisioned in the Order Form or, in the absence of an envisioned use, for ordinary use, and that it has the qualities that are usual and that a customer can expect from Contract Works of its kind.
9.2 Customer must notify PROLOGA in writing without delay if it identifies defects and must include a precise description of the problem and the information that is useful for eliminating the defect. So far as is reasonable in ordinary business, Customer must inspect the Contract Works without delay after PROLOGA delivers them and, if a defect is apparent, notify PROLOGA of it without delay. If Customer does not notify PROLOGA of the defect, the Contract Works are deemed to be approved, unless the defect was not apparent at the time of inspection. If such a defect subsequently becomes apparent, Customer must notify PROLOGA without delay after discovering the defect; otherwise, the Contract Works are deemed to be approved despite the presence of the defect. Customer’s rights are secured if the notification was received in time. PROLOGA cannot rely on the provisions in sentences 2 to 5 in this section if PROLOGA has fraudulently concealed the defect. Notice of a defect as described above is effective only if given by the contact (see section 3.3).
9.3 Where defects as to quality are duly notified, PROLOGA will discharge its warranty by remedying the defect either by providing Customer with a new version of the Contract Works that is free of defects or, at PROLOGA’s discretion, by eliminating the defect. One of the ways PROLOGA may eliminate a defect is to indicate to Customer a reasonable way to avoid the effect of the defect. To discharge its liability for defects in title, PROLOGA will remedy shown defects either by procuring for Customer the legally incontestable right under license to use the delivered Contract Works or, at PROLOGA’s election, providing equivalent replacement or altered Contract Works. Customer must accept a new version of the Contract Works that is functionally compliant unless it would be unreasonable to require Customer to do so. The level of urgency of error-correction work will reflect the extent to which business operations are impeded. These present provisions, in particular section 3, also apply as appropriate.
9.4 If Customer sets a reasonable limited additional time period for PROLOGA to remedy the defect and PROLOGA finally fails to do so in that time, Customer has the right to rescind the Order Form or terminate continuing or recurring contractual obligations or reduce the remuneration. The requirements in section 12.1 must be met with regard to fixing a reasonable limited additional time period. Subject to the exclusions and limitations in section 10, PROLOGA undertakes to compensate for loss or wasted anticipatory expenditure caused by a defect. Other remedies for defects as to quality or defects in title are excluded.
9.5 The time bar for claims under sections 9.1 to 9.4 comes into effect one year after delivery of the Contract Works in accordance with section 2.6 This also applies to rights arising out of rescission or reduction of remuneration under section 9.4, sentence 1. The reduction in the time before the time bar comes into effect does not apply in cases of PROLOGA’s intent or gross negligence, of fraudulent concealment of a defect, of personal injury, or of defect in title to which the German Civil Code, section 438 (1)(1)(a) applies.
9.6 Where works or services are delivered to eliminate or avoid a defect, the time bar for claims for defects in those works and services comes into effect at the time specified in section 9.5. However, the time before the bar comes into effect is suspended while, with Customer’s consent, PROLOGA is checking the existence of a defect or is remedying a defect, until PROLOGA informs Customer of the results of its check, gives notice that the remedy is complete, or refuses to remedy the defect. The time bar comes into effect three months after the end of the toll.
9.7 If PROLOGA provides defect identification or elimination works or services without being under obligation to do so, PROLOGA is entitled to remuneration under section 5.1. This applies in particular to any reported quality defect that is not reproducible or not imputable to PROLOGA or in cases where the PROLOGA Software or Contract Works is not used in compliance with its documentation. Without prejudice to the generality of the foregoing, PROLOGA is entitled to remuneration for additional works or services it does to eliminate any defect that arises out of Customer’s failure to properly discharge its duty to collaborate, inappropriate operation of the PROLOGA Software, or failure to take the PROLOGA services that PROLOGA recommends.
9.8 If a third party claims that the exercise of the license granted under the Order Form infringes its rights, Customer must fully inform PROLOGA in writing without delay. If to mitigate loss or for other good reason Customer ceases to use the Services, Customer must notify the third party that such cessation does not imply any recognition of the claimed infringement. Customer will conduct the dispute with the third party in court only in consultation and agreement with PROLOGA or authorize PROLOGA to assume sole conduct of the dispute.
9.9 If PROLOGA fails to properly perform any of its duties herein that is not within the ambit of defect liability, or is otherwise in breach, Customer must give notice of the failure or breach to PROLOGA in writing and fix a limited additional time period during which PROLOGA has the opportunity to properly perform its duty or otherwise rectify the situation. Section 12.1 applies.
10.1 PROLOGA is liable in contract, tort, or otherwise for loss or wasted expenditure subject always as follows:
10.1.1 In cases of intent, PROLOGA's liability extends to the full loss;
10.1.2. In cases of gross negligence, PROLOGA's liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care; in cases of absence of a guaranteed quality, PROLOGA's liability is limited to the amount of foreseeable loss that would have been prevented by the presence of the guaranteed quality;
10.1.3 In other cases: PROLOGA is not liable except for breach of a major obligation (Kardinalpflicht) and only up to the limits in the following subsection. A breach of a major obligation in the meaning of section 10.1.3 is assumed where the duty itself is a necessary prerequisite for the contractual performance or, where the breach of the relevant duty jeopardizes the purpose of the contract and where Customer could legitimately rely upon its fulfillment. Liability in cases under section 10.1.3 is limited to €200,000 per incident and limited in total to €500,000 for all claims arising out of the Order Form.
10.2 Contributory fault and contributory negligence may be claimed. The limits of liability in section 10.1 do not apply to liability for personal injury, or to liability under the German Product Liability Act (Produkthaftungsgesetz).
10.3 All claims against PROLOGA in contract, in tort, or otherwise for loss or wasted anticipatory expenditure are barred after a period of one year. That period begins at the point in time specified in the German Civil Code (BGB), section 199 (1). The time bar comes into effect not later than five years after the claim arises. The provisions in sentences 1 to 3 in this section do not apply to liability for intent or gross negligence, liability for personal injury, or liability under the German Product Liability Act. The provisions in this section do not affect the other time bar for claims arising out of defects as to quality and defects in title (sections 9.5 and 9.6).
- CONTRACT TRANSFER
Customer is not entitled to transfer the Order Form or any rights or obligations thereunder to any third party.
- MISCELLANEOUS PROVISIONS
12.1 Contractual collaboration requires a high level of trust, interaction, and willingness to agree. Except in emergencies, a limited time fixed by Customer pursuant to the law or contract must not be less than 10 working days. Failure to comply with any fixed time limit entitles Customer to be released from the Order Form (for example, by rescission, termination, or claim for damages in lieu of performance) or to a price reduction for breach only if this was threatened in writing in the notice fixing the limited time as a consequence of failure to comply with that time limit. After a limited time fixed in accordance with sentence 2 expires, PROLOGA is entitled to give notice to Customer requiring that any rights arising out of the expiration be exercised within two weeks of receipt of the notice.
12.2 PROLOGA has four weeks to accept offers made by Customer. Offers from PROLOGA are nonbinding unless otherwise agreed in writing. In cases of conflict, the Order Form terms and details that apply are those in PROLOGA’s offer or confirmation.
12.3 The Services, including the associated PROLOGA Software, are subject to the export control laws of various countries, including without limit the laws of the United States and Germany. Customer agrees that it will not submit the Services to any government agency for licensing consideration or other regulatory approval without the prior written consent of PROLOGA, and will not export the Services to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable legal regulations of the country where Customer is registered, and any foreign countries with respect to the use of the PROLOGA Software by Customer and its Affiliates.
12.4 German law applies exclusively to all claims in contract, in tort or otherwise, and the UN sales laws convention is excluded. Conflict-of-law rules do not apply. If Customer is a merchant within the meaning of the German Commercial Code (HGB), section 1, or a public-law juristic person or special fund, the sole place of jurisdiction for all differences arising out of or in connection with this Services GTC and/or any related Order Form shall be Halle (Saale).
12.5 Amendments or additions and contractually relevant declarations as well as declarations directly influencing a legal relationship, especially without being limited to termination notices, reminders or notices to set time limits, require written form. The foregoing provision also applies to any waiver of the written-form requirement. The written-form requirement can also be met by exchange of letters or (except in the case of termination notices) with an electronically transmitted signature (facsimile transmission, e-mail transmission with scanned signatures, or other agreed form of contract conclusion provided by or on behalf of PROLOGA). Except in that respect, however, the provisions in the German Civil Code (BGB), sections 127 (2) and (3) do not apply.
12.6 A separate agreement is required for any other goods, works and services that are not expressly described in the respective Order Form. Unless otherwise agreed, such goods, works and services are provided subject to PROLOGA’s General Terms and Conditions for PROLOGA Services and PROLOGA is entitled to remuneration for them in accordance with the relevant PROLOGA list of prices and conditions.