Updated 1 March 2022
Terms & Conditions
Our Relationship with You
- VAT4U provides the agreed services, in particular access to the VAT4U application, in its area of availability (from the data center interface to the Internet) (“Services”). The scope of Services, the quality, the intended use and the conditions of use of the Services result from the respective Statement of Work, and additionally, where applicable, from the operating instructions of the software.
- We may expand our scope of Services in the future. The provision of additional services may be subject to additional conditions, which we will communicate to you in due time.
- We will perform the Services in accordance with the standards of proper professional conduct (Grundsätze ordnungsmäßiger Berufsausübung) for the sole benefit of you, our Client.
- We will provide the Services to you as an independent contractor and not as your employee, agent, shareholder or partner. Neither you nor we have any right, power or authority to bind the other.
- We provide our Services exclusively to companies in the sense of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
- We may subcontract portions of the Services to other service providers, who may deal with you directly. Nevertheless, we alone will be responsible to you for the Output (as defined in Section 13), the performance of the Services, and our other obligations under this Agreement.
- The Services are provided “as is“ and without warranty as to its features, functionality, performance or integrity except as stated in this Agreement. We do not provide tax advice. We will not take over any management responsibilities in connection with the Services. We will not be responsible for the use or implementation of the Output of the Services.
- You shall assign a qualified person to oversee the Services. You are responsible for all management decisions relating to the Services, the use or implementation of the Output of the Services and for determining whether the Services are appropriate for your purposes.
- You shall provide (or cause others to provide) to us, promptly, the information, resources and assistance (including access to records, systems, premises and people) that we reasonably require to perform the Services. This also applies to those supporting documents and records, events and circumstances which first become known during our work. If relevant for the execution of our Services, VAT4U may contact third parties (in particular your suppliers).
- All information, records, supporting documentation and explanations provided by you or on your behalf (“Client Information”) shall be accurate and complete.
- You shall ensure that only Client Information relevant to the Services is provided. In particular, you may not use our Services to distribute (i) viruses or other malware, (ii) personal data that is not required for the Services, (iii) content that infringes the rights of third parties (in particular copyrights and personal rights), or (iv) misuse the Services in any other way for non-contractual purposes.
- We may rely on Client Information made available to us and, unless we expressly agree otherwise, will have no responsibility to evaluate or verify it.
- You shall be responsible for your personnel’s compliance with your obligations under this Agreement.
- You acknowledge that we are not a data backup provider. Unless otherwise agreed, you shall perform regular proper data backups and failure precautions for data and components (such as hardware and software) that are appropriate to their type and importance.
- You shall immediately report defects in writing in a comprehensible and detailed form, stating all information useful for defect detection and analysis. In particular, the work steps that led to the occurrence of the defect, the type of appearance and the effects of the defect shall be stated. Unless otherwise agreed, the appropriate forms and procedures of VAT4U will be used for this purpose.
- Any information, communication or other content of any report, presentation or other set of data we provide under this Agreement (“Output”) shall only be used for the performance of the Services. You may not use the software beyond the agreed scope of Services or have it used by third parties or make it available to third parties. In particular, you are not permitted to reproduce, sell or temporarily transfer, rent or lend the software or parts thereof.
- You may incorporate our summaries, calculations or tables based on Client Information contained in an Output into any document that you intend to use. You must assume sole responsibility for the content of those documents and you must not externally – directly or indirectly – refer to us in connection with them.
- If we are required to present the results of our work in writing, only that written presentation is authoritative.
You may not rely on any draft Output (which are non- binding), but only on final written Output. Draft Output only serve our internal purposes and/or the coordination with you and, therefore, only constitute preliminary stages of Output and are neither final nor binding and are subject to further review. We shall not be required to update any final Output for circumstances of which we become aware, or events occurring, after the cut-off date indicated in the Output or, in absence of such date, the delivery date of the Output, unless otherwise agreed or we are obliged to do so with regard to the Services provided by us.
Limitations of our Liability
- Our liability for claims of compensatory damages of any kind – except for damages resulting from injury to life, body or health – for an individual case of damages resulting from negligence is limited to EUR 1 million (Maximum Liability Amount); this also applies if liability to a person other than you should be established. A liability for minor negligence only exists in the breach of fundamental contractual obligations. We are not liable for the non-arrival of forecasts and predictions concerning tax effects, construction times or delivery dates. An individual case of damages also exists in relation to a uniform damage arising from a number of breaches of duty. The individual case of damages encompasses all consequences from a breach of duty without considering whether the damages occurred in one year or in a number of successive years. In this case multiple acts or omissions of acts based on a similar source of error or on a source of error of an equivalent nature are deemed to be a uniform breach of duty if the matters in question are legally or economically connected to one another.
- Insofar as we would be liable on the merits for a loss of data, this liability is limited to the costs that would have been incurred for the recovery of data if you had fully complied with your obligation to back up data (Section 14).
- If legitimate claims falling within our limitation of liability are brought against us by you and/or one or more third parties who are entitled to invoke this Agreement, the Maximum Liability Amount will be – in accordance with Section 428 BGB – available only once to all – including all future – claimants collectively. Hence, any payment by us to you has discharging effect towards all claimants. In case the sum of all claims (including future claims) to which our limitation-of-liability-provisions apply exceed the Maximum Liability Amount, the allocation of this Maximum Liability Amount amongst all claimants (incl. you) is entirely a matter for discussion amongst all claimants.
- A compensatory damages claim may only be lodged within a preclusive deadline of six month of the rightful claimant having become aware of the damage and of the event giving rise to the claim – at the very latest, however, within three years after the event giving rise to the claim. The claim expires if legal action is not taken within a six-month deadline after the written refusal of acceptance of the indemnity and you were informed of this consequence. The right to assert the bar of the preclusive deadline remains unaffected.
- Should, as an exception in an individual case, any persons other than you, our Client, have a right to invoke this Agreement, the provisions of Section 16 through 20 also apply to such third parties. Section 334 BGB shall apply.
- You may not make a contractual claim or bring proceedings arising from the provision of the Services or otherwise based on this Agreement against our subcontractors, members, shareholders, directors, officers, partners, principals or employees (“VAT4U-Persons“). You shall make any contractual claim or bring such proceedings only against us.
- You shall indemnify us and the VAT4U-Persons against all claims by third parties (including your affiliates and lawyers) and resulting liabilities, losses, damages, costs and expenses (including reasonable external legal costs) arising out of the third party’s use of or reliance on any Output disclosed to it by or through you or at your request.
Intellectual Property Rights
- We may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) that we own in performing the Services. Notwithstanding the delivery of any Output, we retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any data compiled in connection with the Services (but not Client Information reflected in them).
- Except as otherwise permitted by this Agreement, neither of us may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary.
- Notwithstanding any superseding legal professional secrecy obligation, either of us may, however, disclose such information to the extent that it:
- is or becomes public other than through a breach of this Agreement,
- is subsequently received by the recipient from a third party who, to the recipient’s knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information,
- was known to the recipient at the time of disclosure or is thereafter created independently,
- is disclosed as necessary to enforce the recipient’s rights under this Agreement, or
- must be disclosed under applicable law or professional regulations.
- Either of us may use electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement and acknowledge that sending information and documents in electronic form (in particular by e-mail) entails risks.
- We may disclose Client Information to VAT4U-Persons who may use, transfer, store or otherwise process it to facilitate performance of the Services and for financial accounting purposes.
We may collect, use, transfer, store or otherwise process (collectively, “Process”) Client Information that can be linked to specific individuals (“Personal Data”). We may Process Personal Data in various jurisdictions in which we operate to facilitate performance of the Services, or financial accounting purposes. We will Process the Personal Data in accordance with applicable law and professional regulations, including (without limitation) the General Data Protection Regulation (GDPR). We will require any service provider that Processes Personal Data on our behalf to adhere to such requirements.
You warrant that you have the authority to provide the Personal Data to us in connection with the performance of the Services and that the Personal Data provided to us has been processed in accordance with applicable law.
- Upon request and if required, we will conclude a separate data processing agreement with you.
Fees and Expenses
- You shall pay our professional fees and specific expenses in connection with the Services as detailed in the applicable Statement of Work or any of its appendices. You shall also reimburse us for other reasonable expenses incurred in performing the Services. Our fees are exclusive of taxes or similar charges, as well as customs, duties or tariffs imposed in respect of the Services, all of which you shall pay (other than taxes imposed on our income generally). We may claim appropriate advances for remuneration and reimbursement of outlays and make the rendering of our Services dependent upon complete satisfaction of our claims. Unless otherwise set forth in the applicable Statement of Work, payment is due within 15 days following receipt of each of our invoices.
- We may charge additional professional fees if events beyond our control (including your acts or omissions) affect our ability to perform the Services as originally planned or if you ask us to perform additional tasks.
- For our variable fees, the payment obligation arises in the moment of the delivery of the Output specified in the Agreement, even if it occurs after termination of the Agreement. The calculation basis for the variable fee will be increased by any additional benefit that you or any third party will receive. Credit notes or output VAT included in the Output will not reduce the calculation base of our variable fee. If the Output is obtained by you or others, we keep our right to claim the full variable fee.
- If you default in accepting the Services offered by us or if you do not provide the assistance incumbent on you pursuant to Section 7, 8 or otherwise, we are entitled to cancel the Agreement immediately. Our right for variable fee, for additional expenses as well as for damages caused by the default or the lack of assistance is not affected, even if we do not exercise our right to cancel.
- Neither you nor we shall be liable for breach of this Agreement (other than payment obligations) caused by circumstances beyond your or our reasonable control. In particular, we are not responsible for any delay, loss or other damage caused by logistic providers, suppliers or tax authorities.
Term and Termination
- This Agreement applies to the Services whenever performed (including before the date of this Agreement).
- If the Agreement has been concluded for an indefinite period, it may be terminated with three months’ notice to the end of a calendar year. This termination is possible for the first time at the end of the calendar year following the conclusion of the Agreement. Any agreed minimum term shall remain unaffected by this right of termination. This shall not apply in each case if a different term has been agreed. In addition, we may terminate this Agreement, or any particular Services, immediately upon written notice to you if we reasonably determine that we can no longer provide the Services in accordance with applicable law or professional obligations. Sections 626 BGB shall remain unaffected.
- You shall pay us for all work-in-progress, Services already performed, and expenses incurred by us up to and including the effective date of the termination of this Agreement.
- Our respective confidentiality obligations under this Agreement, as well as other provisions of this Agreement that give either of us rights or obligations beyond its termination, shall continue indefinitely following the termination of this Agreement.
- You will back up your data files by download on your own responsibility in due time before termination of the Agreement. Upon request, we will support you in this process.
- Where there are deficiencies, you are entitled to subsequent fulfillment of the Agreement. You may demand a reduction in fees or the cancellation of the Agreement only for the failure to subsequently fulfill the Agreement; Section 16 through 20 applies to the extent that claims of damages exist beyond this.
You must assert your claim for the correction of deficiencies in writing without delay. Claims pursuant to the first paragraph not arising from an intentional tort cease to be enforceable one year after the commencement of the statutory time limit for enforcement.
Obvious deficiencies, such as typing and arithmetical errors and deficiencies associated with technicalities contained in an Output may be corrected – and also the applicable versus third parties – by us at any time. Errors which may call into question the conclusions contained in our Output entitle us to withdraw – also versus third parties – such Output. In the cases noted we should first inform you, if possible.
- In the event of only an insignificant reduction in the suitability of the Services for contractual use, the customer shall have no claims due to defects. The strict liability of VAT4U due to defects that were already present at the time of the conclusion of the Agreement is excluded.
- Claims for defects do not exist in the case of excessive or improper use or the failure of components of the system environment. The same shall apply in the event of software errors that cannot be reproduced or otherwise proven by the customer. This shall also apply in the event of damage due to special external influences which are not assumed under the Agreement. Claims for defects shall also not exist in the event of subsequent modification by you or a third party unless this does not impede the analysis and elimination of a material defect.
Governing Law and Jurisdiction
- This Agreement, and any non-contractual matters or obligations arising out of this Agreement or the Services, shall be governed by, and construed in accordance with, the laws of Germany. The application of the UN Sales Convention is excluded.
- Any dispute relating to this Agreement, or the Services shall be subject to the exclusive jurisdiction of the courts of Düsseldorf, Germany.
- This Agreement constitutes the entire agreement between us as to the Services and the other matters it covers, and supersedes all prior agreements, understandings and representations with respect thereto, including any confidentiality agreements previously delivered.
- This Agreement and/or any Statement of Work hereunder (and modifications to them) must be executed in text form.
- Each of us represents that the person signing this Agreement and/or any Statement of Work hereunder on its behalf is also authorized to execute it and to bind each of us to its terms.
You represent that your affiliates and any others for whom Services are performed shall be bound by the terms of this Agreement and the applicable Statement of Work.
- You agree that we may, subject to professional obligations, act for other clients, including your competitors.
- Neither of us may assign any of our rights, obligations or claims under this Agreement.
- You guarantee to refrain from everything which may endanger the independence of our staff. This particularly applies to offers of employment and offers to undertake engagements on one’s own account.
- If any provision of this Agreement (in whole or part) is held to be illegal, invalid, or otherwise unenforceable, the other provisions shall remain in full force and effect.
- We provide our Services based on our General Terms and Conditions (GTC). Your GTC do not apply, even if we have not expressly objected to them. Your acceptance of the Services is deemed to be an acknowledgement of our GTC with a waiver of your GTC. Other terms and conditions shall only be binding if we have acknowledged them in writing. Our GTC shall then apply in addition.
- If there is any inconsistency between provisions in different parts of this Agreement, those parts shall have precedence as follows (unless expressly agreed otherwise): (a) the Engagement Letter, (b) the applicable Statement of Work (incl. the Agreement on Fees), (c) these General Terms and Conditions, and (d) other annexes to this Agreement.
- We are entitled to use your name, logo or trademark in our references.