General Terms & Conditions (GTC)
A) For Services such as Consulting, Training & Coaching
These general terms and conditions are applicable to all offers and contracts of Institute for Innovation & Improvement GmbH & Co. KG – hereinafter referred to as “iii” – and its Customers.
1. Subject of the agreement
1.1 The Customer shall be entitled to order specific services from iii regarding the Performance Catalogue during the term and under the conditions set forth in this General Terms & Conditions. The details of the order of the Customer, including the description of the services involved, duration and remuneration, shall be the subject of an agreement for iii-services, which will be attached to and become part of this agreement.
1.2 This General Terms & Conditions for Consultancy contains the terms and the conditions applicable to all orders and agreements for iii-services. All other conditions, including the general conditions of the Customer, shall not apply, even if iii has not expressly rejected such conditions.
1.3 The services which shall be provided by iii upon the execution of an agreement for iii-services are the following:
• Business Design
• Training & Education
• Particular Challenges
• Administration/ Back Office services
2. General principles governing the services provided by iii
2.1 The Customer shall inform iii of the services it needs. If the request for services is unreasonable or if iii does not have the capacity to provide the services, iii may refuse to provide the services requested.
2.2 In providing the services agreed upon in the Agreement for iii-services, iii shall pay due regard to the requirements laid down in writing in such agreement by the Customer. iii shall further render the services according to the common quality rules valid at the time of the execution of the agreement. iii shall hereby use all its knowledge and experience and shall use its best efforts in providing the services. The Customer will however remain responsible for the specification of the services to be rendered by iii. The Customer acknowledges that it is its responsibility to determine whether a prior analysis is to be effectuated by either iii or a third party before ordering the services. The customer acknowledges and accepts that services may be performed either at customer site or remotely, subject to mutual approval.
2.3 Any guarantee as to the specifications and the features of the iii services requires the express written confirmation by iii. The specifications given in documentation, brochures, project- and program descriptions shall not be considered as such guarantee.
2.4 iii can provide written notes on meetings and conversations covering the precise details of, or the changes to, the provisions of this agreement or any agreement for iii-services, especially with regard to the subject matter of the Agreement for iii-services. These notes shall be binding on both parties if iii provides the Customer with them and the Customer does not make a written objection within 10 days.
2.5 iii retains the right to replace any member of its personnel by another staff member with similar qualifications at any time. In providing the services, iii may also use freelance workers and employees of other companies.
2.6 If within the duration of the period in which services are provided to the Customer, any of the employees/ consultants/ trainers/ coaches provided by iii are hired or contracted either directly or indirectly by the Customer or any subsidiary or associated company of the Customer, the Customer will compensate iii by paying an introduction fee equal to twelve weeks at the applied charge per day for the concerned employee/ consultant/ trainer/ coach with a minimum of 20.000 EUR.
3. Confirmation of the services provided
3.1 After the goods or services have been supplied, the Customer shall provide iii with a written confirmation within due delay to the effect that the goods and services supplied were complete and error free. Such confirmation may only be refused for reasons of material or irredeemable shortcomings.
3.2 If the Customer fails to supply such confirmation within one month of the delivery, this shall be deemed to constitute acceptance of the goods and services.
3.3 iii can require a specific confirmation with respect to goods or services which are covered by separate agreements, or which can already be used on their own.
4.1 All services shall be invoiced according to the Performance Catalogue in effect at the time of the signing of the Agreement for business. All expenses incurred by the visit of the consultant, such as meals, hotels, parking-fees, travel expenses, etc. will be recharged to the client as they fall due.
4.2 Payment of the invoices shall be due within 14 days after the date of the invoice. No cash discount will apply. In case of non-payment on the expiry date, all sums due by the Customer shall be increased ipso iure and without formal notice with a yearly delay interest of 12 % until the date of full payment.
4.3 All prices do not include V.A.T. nor any statutory sales tax. Such taxes will be added to all invoices.
5. Obligations of the Customer
5.1 The Customer shall provide a working environment in accordance with the applicable legislation.
5.2 The Customer shall provide the required degree of support and assistance when iii renders its services.
5.3 If services are rendered at the Customer's premises, the Customer shall supply all facilities that are required to enable iii employees to render the services.
5.4 The Customer shall appoint a contact person to supply iii with all necessary information and who shall take decisions or obtain decisions from others within due delay.
6.1 Any (delivery) time shall be agreed upon in writing in the Agreement for iii-services. iii will use its best effort to respect such time schedule which will not be binding upon iii.
6.2 If any delay would occur due to reasons that can be attributed to actions or any negligence of the Customer, especially lack of cooperation on the side of the Customer required in article 5, section 4, the delivery period shall be extended by the duration of the delay plus a reasonable start-up time.
6.3 If the services of iii would be delayed for an unreasonable long time, the Customer will be entitled, after having granted two periods of grace, to
terminate the Agreement for iii-services in part or in full. Dunning notices and periods of grace must be in writing. Periods of grace must be at least ten working days.
7.1 Job planning shall be carried out by iii.
7.2 Even if employees of iii provide services at the Customer's premises, iii shall have the sole authority to instruct its own employees. The employees of iii shall not be included in the Customer's staff.
7.3 iii is an independent contractor. This agreement shall not constitute any partnership and in no way is any contract of agency or employment intended. Parties agree to act in own name and for own account and acknowledge to have no authority whatsoever to represent or act on behalf of the other party.
8.1 Copyright and all other intellectual property rights and other rights to the iii documentation, as well as the concepts, methods and working results, shall remain with iii, even if they are the result of the cooperation or the information provided by the Customer.
8.2 The Customer undertakes to respect such rights of iii, in particular its copyright. The Customer shall have a royalty free, non-exclusive and nontransferable right to use contracted concepts, methods and working results developed by iii, provided that the Customer shall only use the same for its internal needs and not for commercial marketing.
9.1 Each party undertakes to treat all confidential information disclosed during the term of each Agreement for iii-services, including all trade secrets and know-how of the other party as confidential. Parties will not divulge such confidential information in a direct or indirect way nor grant unauthorized third parties access thereto.
9.2 The Customer undertakes to inform its employees who have access to such confidential information of the copyright and all other property rights of iii and of their duty to observe the confidentiality thereof. The Customer shall take all necessary measures in order to ensure that said persons comply with this confidentiality obligation.
9.3 iii shall require its employees to treat personal data kept by the Customer confidential.
10.1 iii warrants that it will use its best efforts to render the services agreed in accordance with the best practices & industry quality rules valid in the business consultancy sector.
10.2 The parties are fully aware that, in view of the state of the art of the science, it remains possible that an error would appear in any iii-service inspite of all care taken to develop, write and test such concepts.
10.3 The Customer accepts and acknowledges that iii does not warrant any result nor any fitness for particular purposes desired by the Customer.
10.4 The Customer shall report to iii immediately any errors. This reporting shall be in writing and shall contain all information in order to allow iii to retrace how and when the error occurred and to correct the error if possible. The warranty shall not apply if the error has not been reported by the Customer according to the provisions of this paragraph.
10.4 iii will use its best efforts to correct any defect and error duly reported by the Customer in accordance with paragraph 10.4. iii is entitled to use several attempts to correct the error. The warranty of iii will only be valid during a period of 90 days commencing at the date of the acceptance of the goods or services as stated in article 3 and upon the condition that iii can detect the error.
10.5 The warranty of iii is not applicable if reported restrictions on use or errors are due to improper use, are due to any action or any negligence of the Customer, or to any improperness or default of the system environment, unless the Customer can prove that the above did not contribute to the error's occurrence. The warranty will not apply when the error is due to the fact that iii followed the instructions of the Customer. If iii would render a service in spite of the fact that iii is not obliged to do so under the warranty, iii is entitled to invoice these services according to the iii Performance Catalogue in effect at the time of the services. The Customer shall assist iii to the extent required when iii corrects errors.
10.6 If iii fails to correct errors, covered by the warranty, after several attempts thereto, the Customer is entitled to reduce the remuneration or to rescind the Agreement for iii-services with full or partial refund of the remuneration upon duly notice. All other warranty rights are excluded. iii shall not be liable for any costs (to be) paid to third parties to correct the error or for any other damages and costs incurred by the Customer in respect of this warranty.
11.1 iii shall indemnify the Customer for all damages directly caused to the Customer in the event of willful misconduct, gross negligence or the complete lack of warranted characteristics. In all other cases, the liability of whatever nature of iii will be limited to the amount of remuneration agreed for each Agreement for iii-services, but will never exceed 50.000,00 euro for each Agreement for iii-services.
11.2 The limitation of the liability stated above shall not be applicable in the event of death and personal injury covered by the German product liability act.
11.3 iii shall not be liable for any damages caused by an error or the negligence of the Customer or a third party commissioned by the Customer or if the Customer or said third party did not comply with the guidelines of product liability act or the contractual obligations imposed by iii. iii will neither be liable for any indirect damages such as any financial commercial loss, any profit loss, any increase of expenses and other general costs, any loss of clientele or savings, any postponement or disruptions of the project planning or the enterprise activity and any loss of data or software whatsoever and shall not be liable for any action by third parties, except as provided for in article 12.
11.4 The Customer will indemnify and hold iii harmless from any and all claims based on infringement of third party rights and for all costs and damages imposed on iii and resulting from the fact that iii has followed the Customer's guidelines, concept specifications or instructions.
12. Third party rights
12.1 iii warrants that, to the best of its knowledge and belief, that its services and uses in any concept performed under this agreement does not infringe upon any patent or copyright of any third party.
12.2 In the event that the use of the the iii-services performed would be subject to an action based on the infringement of intellectual property rights, iii shall assume, at its own expense, the defense against such third party claims of infringement both in court and out of court upon the condition that the Customer has informed iii in writing immediately of such claim. iii shall indemnify the Customer for any damages incurred upon the condition that the Customer has provided to iii full information and full assistance for the defense of such claims and to the extent that such claims have not been caused by the own conduct of the Customer.
12.3 The Customer shall be entitled to terminate the Agreement for iii-services if iii would be unable to provide the Customer with a license which is not contested by a third party after iii has been able to use all legal arguments and remedies to defend such claim.
13. Duration and termination
13.1 This General Terms & Conditions for iii-services shall come into effect when signed by both parties and shall be concluded for an indefinite duration. Each party has the right to terminate this General Terms & Conditions for iii-services with a prior written notice of three months. In case parties concluded an Agreement for iii-services for a duration which has not lapsed yet at the time of the termination of the General Terms & Conditions for iii-services, parties agree that the termination of the General Terms & Conditions for iii-services will only take effect at the end of the duration and termination of the services specified in the Agreement for iii-services.
13.2 Each party is entitled to terminate the Agreement for iii-services and the General Terms & Conditions for Consultancy Services immediately and without intervention of the court in case of non-respect of the confidentiality and copyright provisions by the other party and upon any other default of the other party, provided such default was not cured after notification thereof in writing and in case of bankruptcy, dissolution, liquidation or any similar procedure affecting the other party. In case the Customer would terminate an Agreement for iii-services without good cause, iii shall retain its full claim to the remuneration that is agreed for the whole project reduced by any costs that iii would save, such indemnification being minimum 60 % of the total remuneration agreed for the services.
13.3 Each notice of termination must be in writing. Termination will not affect the obligations of article 8 and 9.
14. Final provisions
14.1 This General Terms & Conditions for iii-services and the Agreements for iii-services concluded in the framework hereof constitute the entire and only agreement and understanding between parties with respect to the iii-service arrangement between parties. Amendments and additions to this framework must be in writing and signed by both parties. There are no oral side agreements.
14.2 In case of any contradiction between the iii Performance Catalogue and the terms of this General Terms & Conditions for iii-services/ Agreement for iii-services, the terms of the General Terms & Conditions for iii-services/ Agreement for iii-services will prevail. The terms of the Agreements for iii-services will further prevail over the terms of the General Terms & Conditions for iii-services.
14.3 If one or more parts of this agreement would be invalid or void, this shall not effect the validity of the remaining provisions. Parties undertake to replace the invalid or void part with provisions that have the same commercial effect and are legally valid.
14.4 This General Terms & Conditions for iii-services and the Agreements for iii-services are governed by German law.
14.5 The Courts of Munich will have exclusive jurisdiction.
B) Software services such as SaaS-licences and implementations projects
(The following GTC contain also legal information about your rights according to long-distance transaction law and about electronic business transactions.)
These General Terms & Conditions (GTC) apply to all deliveries and services related to emilQ DAILY® and its branch, function and customer-related solutions such as myDAILY®ENTERPRISE, myDAILY®CAMPUS, myDAILY®AUTOMOTOVE, myDAILY®4WIND, myDAILY®HRM and further derivates. emilQ DAILY® is a cloud-based SaaS platform and brand of the Institute for Innovation & Improvement GmbH & Co. KG. All rights reserved.
2. Contracting party
All contracts are accomplished with the service provider:
Institute for Innovation & Improvement GmbH & Co. KG
T: +49 89 8 99 88 4 – 84
F: +49 89 8 99 88 4 – 86
VAT-ID according to § 27a German Value Added Tax Act: DE 307506189
3. Conclusion of contract
3.1 The service descriptions and prices are considered as nonobligatory incl. VAT. Applicable are the service descriptions and prices at the point of time of conclusion of the contract. The presentation of products on our website and in the SaaS configurator is not a legally binding offer for the conclusion of a contract, but solely an invitation to order.
4. Cancellation right for users
4.1 As far as you are a real person and conclude contracts for delivery of goods or services for predominately private purposes, you are free to make us of the cancellation right for users described below.
4.2 If you are on the contrary an entrepreneur in the legal sense according to § 14 German Civil Code and act within commercial or independent activities, the cancellation right does not apply.
4.3 Cancellation policy
4.4 Expiration of cancellation rights
For contracts for digital content which is not supplied on a tangible medium, the right of withdrawal extinguishes, if the supplier has started the execution of the contract, after the user has particularly agreed that the contractor for the execution of the contract will begin before the end of the withdrawal period, and the user has confirmed, that he loses his right of withdrawal by its agreement with the beginning of the execution of the agreement. Should the contract be downloaded or streamed, the customer waives with execution of the download or streaming process before the end of the withdrawal period on the right of withdrawal.
4.5 Cancellation form
Prices described on the product pages, if not described differently, refer to one piece or one article. They are expressed in Euros, are the total price and include VAT as applicable, and any other price components, but in addition optional shipping costs.
In case of SaaS services the performance position "DAILY SLA/Datenhosting, Backups & Updates" (Service-Level-Agreement) is automatically inculded. It contains service-/provider cost such as PaaS/IaaS/hoster administration), regular backups according to the Round-Robin-Schedule (DAILY, weekly & monthly), continuous updates of software and additional features, unlimited data storage (user content such as data and documents), daily access to customer service hotline (mon -fri. from 07 am to 07 pm) as well as continous technical support (reaction time: mon - fri < 4 hours). An advanced SLA (DAILY SLA pro) can be claimed/signed for additional maintenance services.
6. Shipping costs
6.1 No shipping costs apply for the online delivery of goods or services e.g. like software provided via e-mail, download or online access (SaaS).
6.2 Klickandpay collects for payment by klickandpay (Mastercard/VISA), a processing fee of 2.45% + EUR 0.30 on the payment amount for Euro payments. This klickandpay handling fee can be passed on directly to our customers by being added to the total invoice amount.
6.3 Additional taxes, custom duties and fees
No additional taxes, duties or costs occure for deliveries to EU countries.
Deliveries to non-EU countries may be subject to additional duties and fees. See examples below:
Concerning import sales tax:
Specifically for Switzerland:
7. Delivery, data storage and backups
7.1 The delivery of our software products and services is regularely worldwide provided as SaaS (Software-as-aService).
7.2 Period of delivery
Online delivered products are usually available within 48 hours. Individually configured customer systems are excepted from this regulation and are provided according to agreement.
7.3 Data storage and backups
The SaaS data storage takes place in cooperation with one of the Institute's authorised hosting partners. Data backups take place according to the so-called Round Robin Schedule (daily, weekly and monthly).
8.1 As payment methods, we offer the use of the Internet payment service klikandpay/PAYMILL, which includes the possibility of payment methods such as MasterCard and VISA. In addition, there is the possibility of payment of project, configuration and customisation services in accordance with the SEPA direct debit procedure. Software license fees are solely debited by SEPA direct debit procedure, Master Card, Maestro or VISA. In case of annual license subscriptions (15% discount compared to monthy subscriptions) this takes place in advance on the first working day of the particular 12-month-licence period (+/- five working days). In case of monthly license subscriptions the SEPA direct debit procedure takes place in advance on the first working day of the month (+/- five working days). In the case of projects, consultancy or other services, with extend over a longer period of time, there is the option of monthly payment on invoice within 7 days after reception. Other payment methods are not accepted. User-induced manual intervention in the automated payment process (recurring entries due to insufficient account coverage, etc.) will be charged with 15, - EUR plus any additional costs incurred by third parties (bank charges, etc.).
8.2 By selecting the payment through klickandpay, you will be redirected to the SSL encrypted klickandpay website. Here follow the prompts to make your payment by Mastercard or VISA. During the course of the payment of your order via klickandpay, you will be constantly informed by status messages. When using the Internet payment service klickandpay you initiate an immediate charge to your credit card account. The exact time of exposure of your account depends on both the internal processing time of the Internet payment service klickandpay, and the handling time of your bank or credit institution. We have no influence on either.
8.3 SaaS-related goods and services are delivered after full licence/service payment (value date of the payment amount to our account) through online access. Non-terminated Saas subscriptions (see also 13. Termination) are getting prolonged automatically for the same time as its booked duration (monthly or yearly).
8.4 Upgrades/Downgrades: Current SaaS subscription services/user licenses (web apps, SMART add-ons, number of users etc.) can be extended/upgraded at any time, according to the given user slots (10, 25, 50, 100, 250, 500...) in the myDAILY®CONFIGURATOR. In the case of monthly subscriptions, SaaS services can be reduced from the following month with a lead time of one full month. In the case of yearly subscriptions (15% discount compared to monthly subscriptions), SaaS services can be reduced from the following year (12-month service intervall) with a lead time of three full months to the end of the 12-month service/subscription intervall.
Overdraft of ordered user slots: The ordered amount of users can be temporarely exceeded without any additional contractual efforts. This is to enable flawless execution in daily business. Thus, the peak amount of addtional users per month is extra charged in the following month based on the currently contracted price per user plus an additional administration fee of 5 euros per invoice.
8.5 If you fall into arrears and you are a consumer according to § 13 German Civil Code, then you will be charged with an interest rate of 5 percentage points per annum above the base rate according to § 247 German Civil Code. If you fall into arrears and you are an entrepreneur in terms of § 14 German Civil Code, then you will be charged with an interest rate of 8 percentage points per annum above the base rate according to § 247 German Civil Code. In both cases we reserve the right to prove a bigger damage caused by delay and assert this.
8.6 Invoicing to entrepreneurs within the meaning of § 14 German Civil Code takes place by post at separate request. The customer who is a consumer in terms of § 13 German Civil Code declares that he agrees to electronic invoincing (e-mail). With electronic invoicing emilQ DAILY® will send the invoices in PDF format by e-mail to the e-mail address of the customer. Electronic invoices are considered as delivered by entering the inbox of the email address, regardless of the date on which the customer actually obtains such messages. The customer expressly agrees that no bills will be sent to him in writing. If the customer still requests an invoice by post, emilQ DAILY® is entitled to apply an extra fee of EUR 2,50.
8.7 A right to set off is available only if your claims are legally established in court or are undisputed or acknowledged in writing by us.
8.8 You can exercise a lien only if the claims are based on the same contractual relationship.
9. Reservation of title
The goods remain our property until full payment. Before transfer of ownership, a pledge, security transfer, processing or transformation is not allowed without our agreement.
The warranty is subject to legal regulations. During the warranty period of two years from delivery, you have the legal right to remedy (at your option: removal of defects or replacement) and - if the legal requirements are fulfilled - the legal rights to reduction or cancellation as well as damages.
11.1 emilQ DAILY® excludes any liability for slightly negligent breaches of duty, unless damages are affected from injury to life, limb or health or guarantees or claims under the Product Liability Act. This shall not affect the liability for breach of duties during the fulfillment of the execution of the contract and on whose compliance the customer may trust regularly (so-called contractual obligations or cardinal obligations). The described above liability relief also applies to breaches of statutory and agents of emilQ DAILY®.
12. Final conditions
12.1 These Terms and Conditions (GTC) and the respective contract cover the entire agreement. Verbal agreements outside these Terms and Conditions and the respective contract have not been met. Oral side agreements, amendments, supplements, promises, assurances / quality guarantees and the like have not been agreed. Any contractual arrangement or amendment must be in writing. This also applies to a waiver of the written form requirement.
12.2 Place of fulfillment for all obligations of the contractual relationship between the parties is the headquarters of the Institute for Innovation & Improvement GmbH & Co. KG, unless the parties agree otherwise or write statutory provisions for a different place of performance for the obligations of emiLQ DAILY®.
12.3 Place of jurisdiction for all claims arising from difficulties caused by the contractual relationships between the parties, in particular concerning the conclusion, the execution or the termination of the contract, - unless the parties are merchants, legal persons under public law or public law special funds - is the seat of the Institute for Innovation & Improvement GmbH & Co. KG. The Institute for innovation & Improvement GmbH & Co. KG, however, may alternatively sue the contractor at his general place of jurisdiction or any other permissible place of jurisdiction. This does not apply if mandatory legal provisions prescribe another place of jurisdiction.
12.4 For claims of any kind and no matter of direction, the law of the Federal Republic of Germany shall solely apply under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (known as CISG). This also applies to cross-border traffic. This does not apply if and insofar prescribe mandatory legal provisions applying other law.
12.5 Should any of these Terms and Conditions and / or the respective contract for factual or legal reasons be completely or partially invalid, that will not affect the effectiveness of the other provisions. Instead of the invalid provision, the relevant statutory provisions shall apply. The same applies if during the execution of the contract a gap requiring supplementation of these Conditions and / or the respective contract becomes apparent.
12.6 As far as the system provides specific offers, forms or content in other languages than German, it is always solely the text of the German version of contracts, offers or conditions applicable. The same counts for translation mistakes in other languages than german. It is solely the german version applicable.
13.1 The contractual services by SaaS subsciptions can be terminated as follows:
Annual subscriptions or contracts with a predefined run-time: with a notice period of 3 months to the 12-month-intervall (counted from the start date of SaaS operations/subscription).
Monthly subscriptions: with a notice period of one month to the end of the following month.
If not terminated, the SaaS subscription automatically renews by additional 12 months in case of annual subscriptions or contracts with a predefined run-time. Monthly subscriptions are automatically prolonged by one month.
13.2 Customer data (master and transaction data) will be archived for a further 5 years in the case of termination. Alternatively, all data can be transferred on customer request by means of a data carrier and deleted by the supplier.
Further information for remote business and E-commerce
Technical steps for contract finalisation
Acceptance and corrections to input mistakes
If you have found the desired item, you can add it by clicking the button [Add to cart] in the shopping cart and schedule it for purchase. You can check/view the content of the shopping cart at any time by clicking the cart button or icon. The products in the shopping cart can be removed at any time by clicking the button [Empty cart] or content can be modified. If you want to buy the products in your cart, click the button [Checkout]. After selecting the products you will be asked to register and create an account and enter your data. The mandatory information includes your following data: company name, legal representative, first name, last name, address, email, VAT ID and the following user information: username, password. In this way, you can log on for future purchases and visits with your username and password, and may make orders without having to re-enter your data. After registering you will receive an email with an activation link. You need to click n the link to activate your account. Then you can continue or cancel your order. Do you want to process your order, the next step is to choose your desired method of paymnent. After the selection of a payment method, an order page with all listed data and items is displayed, where you can check your entries again. By clicking the button [Order now] you finilize the checkout process. Instead, you can cancel the checkout process or edit the order data. Throughout the checkout process, you will receive further information.
Realisation of contract
You make a binding offer if you have gone through the online checkout process by entering the required information and by clicking on "Order now". Once you have placed your order, we will send you an e-mail confirming receipt of your order and its details (order confirmation). This order confirmation does not constitute acceptance of your offer, but is only to inform you that your order has reached us. The purchase contract is concluded when we accept your order either by sending an order confirmation via e-mail or deliver the goods to you.
Data storage and access
The contractual languages are English and German. In order to enable international use, English has also been applied as main system language of emilQ DAILY® (myDAILY®ENTERPRISE and myDAILY®CAMPUS).
Information about the essential characteristics of goods or services
Information refering to the essential characteristics of the goods or services can be found on the product descriptions pages.
Expiration of validity of tenders
Information on the validity of limited offers can also be obtained on our website.