General Terms and Conditions of
ROKOCO GmbH and
ROKOCO Predictive Analytics GmbH,
Grünwald, Germany



I. General provisions

  1. Scope

    1. These General Terms and Conditions apply to both ROKOCO GmbH and ROKOCO Predictive Analytics GmbH.
    2. These General Terms and Conditions shall only apply if you are an entrepreneur within the meaning of § 14 BGB (German Civil Code), i.e. act in the exercise of your commercial or self-employed professional activity.
    3. These General Terms and Conditions apply to the entire business relationship of both ROKOCO GmbH and ROKOCO Predictive Analytics GmbH, unless contractual agreements deviating from the provisions of these General Terms and Conditions are made. These General Terms and Conditions are an integral part of all our contracts which we conclude with you regarding the deliveries or services offered by us. They shall also apply to all future deliveries, services or offers, even if they are not separately agreed again.
    4. All our deliveries, services and offers are made exclusively based on these General Terms and Conditions. Your terms and conditions or third parties shall not apply, even if we do not separately object to their validity in individual cases. Even if we refer to a letter that contains or refers to your terms and conditions or those of a third party, this does not constitute agreement to the application of those terms and conditions.


  2. General description of services

    1. Our services consist either individually or in combination of the following
      • from consulting services,
      • from valuation of pension benefits,
      • from various software solutions, which we make available to you for your ongoing operation by means of a user license,
      • from software development services that you entrust us with,
      • from the delivery of data records.
    2. What we make available to you in detail results from our respective contractual agreement.
    3. All our services are based on complex actuarial and financial methods. The assessment and interpretation of our benefits requires actuarial and financial mathematical as well as statistical expertise and actuarial experience.
    4. Unless expressly agreed otherwise, our duties do not include checking the documents submitted to us for correctness, completeness and regularity. If, however, we discover obvious errors in the documents or assumptions, we will point them out to you.
    5. The fact that we make recommendations on a changed allocation of portfolios as part of our assignment does not constitute investment advice or portfolio management. We do not recommend the purchase or sale of specific financial instruments; we do not make investment decisions and have no right of disposal over financial instruments in your portfolio. We do not guarantee the success of a change in allocation based on our recommendations.
    6. If we make recommendations on reinsurance transactions in connection with our assignment, this does not constitute reinsurance brokering. We do not broker either reinsurers or reinsurance contracts.
    7. If we provide actuarial consulting services of any kind within the scope of our assignment, this shall not constitute a functional outsourcing. You remain responsible for the provision and proper filling of all important functions and in particular the key functions yourself.


  3. Scope of use

    1. The contractual services may only be used by you for the contractually specified purpose.
    2. Any use of our services for marketing purposes of any kind is prohibited.
    3. A transfer to third parties requires our written consent, unless our consent to the transfer to certain third parties already results from the order content.


  4. Legal deficiencies

    1. In accordance with the provisions of this Clause 4, we warrant that our services are free from industrial property rights or copyrights of third parties. We shall only be liable for infringements of third-party rights by our performance if the performance is used unchanged in accordance with the contract and, in particular, in the contractually agreed operational environment, otherwise in the intended operational environment.
    2. We shall only be liable for infringements of third-party rights within the European Union and the European Economic Area as well as at the place of contractual use of the service. Clause 12.1 sentence 1 shall apply accordingly.
    3. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
    4. You shall not be entitled to accept any claims of third parties until you have given us reasonable opportunity to defend the rights of third parties in any other way.
    5. If the rights of third parties are infringed by one of our services, we will, at our own discretion, at our own expense and with due consideration of your interests
      • give you the right to use the service, or
      • to make the service free of any infringement of rights.
    6. If we fail to do so within a reasonable period of time, you shall be entitled to withdraw from the contract or to reduce the remuneration accordingly. Your possible claims for damages are subject to the restrictions of clause 5 of these General Terms and Conditions.
    7. Claims by you for defects of title shall become statute-barred in accordance with clauses 12.4 - 12.6. Clause 12.7 shall apply mutatis mutandis to our additional expenditure.


  5. Our general liability

    1. Our liability for damages, for whatever legal reason, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this Clause 5 to the extent that this depends on culpability.
    2. We are always liable to you
      1. for damages caused by us, our organs, legal representatives, employees or other vicarious agents intentionally or grossly negligently,
      2. in accordance with the Product Liability Act (Produkthaftungsgesetz) and
      3. for damages resulting from injury to life, body or health for which we, our organs, legal representatives, employees or other vicarious agents are responsible,
      4. for guarantees given in accordance with clause 5.5 of these provisions.
    3. We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, except in so far as a material contractual obligation has been breached thereby, the fulfilment of which is essential for the proper performance of the contract or the breach of which endangers the achievement of the purpose of the contract and on the observance of which you may regularly rely.
    4. Insofar as we are basically liable for damages, this liability is limited to the foreseeable damage typical for the contract in the case of material damage and financial loss, even if this is a violation of essential contractual obligations. This also applies to lost profits and missed savings. Liability for other remote consequential damages is excluded.
    5. In the case of an individual claim, liability shall also be limited to the contract value, in the case of current remuneration to the amount of the remuneration per contract year, but not to less than € 150.000,-. Clauses 12.4 - 12.6 shall apply mutatis mutandis to the limitation period. We and you may agree in writing on further liability at the time of conclusion of the contract, usually against separate remuneration. Priority shall be given to an individually agreed liability sum. The liability according to clause 5.2 remains unaffected by this paragraph.
    6. We shall only be liable for damages arising from a guarantee declaration if this has been expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations set out in clauses 5.4 - 5.5.
    7. If data or components (e.g. hardware, software) need to be restored, we shall only be liable for the expenditure required to restore the data or components (e.g. hardware, software) if you have properly backed up the data and taken precautions against failure. In the event of slight negligence on our part, this liability shall only arise if you have carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This shall not apply insofar as this has been agreed as our performance.
    8. Sections 5.1 to 5.6 shall apply mutatis mutandis to your claims for reimbursement of expenses and other liability claims against us. Sections 11.3 to 11.5 shall remain unaffected.
    9. You and we are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. With this type of communication you will therefore not assert any claims based on the absence of encryption, unless encryption has been agreed beforehand.
    10. The above exclusions and limitations of liability shall apply to the same extent in favour of our organs, legal representatives, employees and other vicarious agents.


II. Special provisions for software services and related service and work contracts

  1. Access

    1. If contractually explicitly agreed, we provide access to our software as a cloud solution via the Internet. As a rule, however, integration takes place in the customer's data center.
    2. Additional services, such as the development of customer-specific solutions or necessary adaptations, require a separate written agreement.
    3. We may provide updated versions of the Software. We will notify you electronically of updated versions and related usage notices and make the updated version available accordingly.


  2. Scope of use

    1. The contractual software may only be used by you for the contractually specified purpose.
    2. Additional rights, in particular to the software or any infrastructure services provided in the respective data processing centre, shall not be transferred or otherwise granted. Any further use beyond that contractually agreed or granted with these General Terms and Conditions requires our prior written consent.
    3. Unless otherwise contractually agreed, you may not have our software used by third parties or make it accessible to third parties. Furthermore, it is not permitted to duplicate, sell or temporarily transfer, rent or lend our software in whole or in part.
    4. We are entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract may not be impaired by this more than insignificantly.
    5. In the event of a user exceeding the scope of use in violation of the contract or in the event of an unauthorized transfer of use, you must provide us immediately on request with all information available to you for the assertion of our claims due to the use in violation of the contract, in particular the name and address of the user.
    6. We are entitled to revoke your access authorization and/or terminate the contract if you significantly exceed the permitted use or violate regulations for protection against unauthorized use. In connection with this, we can interrupt or block access to the contractual services. In principle, we will set you a reasonable period of grace beforehand to remedy the situation. The sole revocation of the access authorization shall not be deemed to be a termination of the contract at the same time. We can only maintain the revocation of the access authorization without notice for a reasonable period of time, a maximum of 3 months.
    7. Our claim to remuneration for the use exceeding the agreed use remains unaffected.
    8. You shall be entitled to reinstate the access authorization and the access possibility after you have proven that the use contrary to the terms of the Agreement has ceased and that a future use contrary to the terms of the Agreement has been prevented.


  3. Software fault management

    1. We accept your fault reports, assign these fault categories (Clause 8.3 of these General Terms and Conditions) and carry out the measures for the analysis and correction of faults on the basis of this assignment.
    2. We accept your proper fault reports during our normal business hours and provide them with an identifier. At your request, we will confirm the receipt of a fault report by informing you of the assigned identifier.
    3. Unless otherwise agreed, we will assign fault reports received to one of the following categories after initial inspection:
      1. "Serious disruption"
        The disruption is based on an error in the contractual services which makes the use of the contractual services, in particular the software, impossible or only permitted with serious restrictions. You can't reasonably avoid this problem and therefore can't perform urgent tasks.
      2. "Other malfunction"
        The disruption is based on an error in the contractual services which restricts the use of the contractual services, in particular the software, by you more than insignificantly, without there being a serious disruption.
      3. "Other message"
        Fault messages that do not fall into the categories "serious fault" and "other fault" are assigned to the "other messages". "Other notifications" shall only be treated by us in accordance with the contractual agreements made for this purpose.
    4. In the case of reports of "serious disruption" and "other malfunction", we will immediately initiate appropriate measures on the basis of the circumstances notified by you in order to first locate the cause of the fault.
    5. If, after initial analysis, the notified malfunction does not appear to be a defect in the contractual services, in particular the software provided, we will inform you of this immediately.
    6. Otherwise, we will initiate appropriate measures for further analysis and correction of the notified malfunction or, in the case of third-party software, we will send the malfunction report together with the analysis results to the distributor or manufacturer of the third-party software with a request for remedy.
    7. We will immediately make available to you existing measures to circumvent or correct an error in the contractual services, in particular the software provided, such as instructions for action or corrections to the software provided. They must immediately take over such measures to circumvent or rectify faults and immediately report any remaining faults to us again when they are used.


  4. Non-contractual use, compensation for damages

    1. For each case in which a contractual service is used without justification in your area of responsibility, you must pay compensation in the amount of the remuneration that would have been due for the contractual use within the framework of the minimum contractual period applicable to this service.
    2. You reserve the right to prove that you are not responsible for the unauthorized use or that there is no damage or significantly less damage.
    3. We remain entitled to claim further damages.


  5. Cooperation, duties to cooperate, confidentiality

    1. We and you shall each designate a responsible contact person for our cooperation. Unless otherwise agreed, all communication between us shall take place via these contact persons. The contact persons must immediately bring about all decisions relating to the execution of the contract. The decisions shall be documented in a binding manner.
    2. You are obliged to support us to the extent necessary and to create in your sphere of business all conditions necessary for the proper execution of the order. In particular, you will provide us with all necessary information and, if possible, if our software runs on your systems, enable remote access to your system. If remote access is not possible for security reasons or other reasons, the affected periods shall be extended accordingly; we shall agree an appropriate regulation for further effects. They shall also ensure that competent personnel are available to assist the Provider.
    3. If it has been contractually agreed that services can be rendered on your premises, you shall provide us with sufficient workstations and equipment free of charge upon request.
    4. If software and data are in the cloud, we are responsible for data backup. If the Software is installed at your data center under the terms of the Agreement, and nothing to the contrary is contractually agreed, you will provide proper backup and disaster recovery for data and components (such as hardware, software) appropriate to their nature and importance.
    5. Before using our software, you agree to test it in a suitable test environment to ensure trouble-free live operation.
    6. Defects shall be reported immediately in writing in a comprehensible and detailed manner, providing all information relevant to the identification and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be indicated.
    7. You shall provide us with reasonable assistance upon request in examining and asserting claims against other parties in connection with the provision of services. This applies in particular to any recourse claims against third parties.
    8. You and we as contractual partners are obliged to maintain secrecy regarding business and trade secrets as well as other information designated as confidential which becomes known in connection with the execution of the contract. The disclosure of such information to persons who are not involved in the conclusion, execution or performance of the contract may only take place with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information becomes known, but not before its termination in the case of continuing obligations.
    9. You and we as contractual partners will also impose these obligations on your employees and any third parties you may employ.


  6. Disturbances in the provision of services

    1. If a cause for which we are not responsible, including strike or lockout, impairs adherence to the deadline ("disruption"), the deadlines shall be postponed by the duration of the disruption, if necessary, including an appropriate restart phase. A contractual partner shall inform the other contractual partner immediately of the cause of a disturbance that has occurred in his area and of the duration of the postponement.
    2. If the expense increases due to a disruption, we can also demand payment for the additional expense, unless you are not responsible for the disruption and its cause lies outside your area of responsibility.
    3. If you can withdraw from the contract due to improper performance and/or claim damages in lieu of performance or assert such, you shall declare in writing at our request within a reasonable period of time whether you assert these rights or wish to continue to perform. In the event of rescission, you must reimburse us for the value of previously existing usage options; the same applies to deterioration due to intended use.
    4. If we are in default of performance, your compensation for damages and expenses due to the default shall be limited to 0.5% of the price for that part of the contractual performance which cannot be used due to the default for each completed week of the default. The liability for default shall be limited to a maximum total of 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, this shall refer to the remuneration for the respective services affected for the full calendar year. In addition, and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply. This shall not apply if a delay is due to our gross negligence or intent.
    5. In the event of a delay in performance, you shall only have a right of rescission within the framework of the statutory provisions if we are responsible for the delay. If you assert justified claims for damages or reimbursement of expenses instead of performance due to the delay, you shall be entitled to demand 1% of the price for that part of the contractual performance which cannot be used due to the delay for each completed week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations in relation to the remuneration for the respective services affected for the full calendar year. In addition, and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply.


  7. Defects as to quality and reimbursement of expenses

    1. We ensure the contractually owed quality of the services. There shall be no claims for material defects in the case of only insignificant deviations of the services from the contractual quality.
    2. Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible or otherwise verifiable software errors by the customer or in the event of damage resulting from special external influences not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless this does not impede the analysis and elimination of a material defect.
    3. For claims for damages and reimbursement of expenses, the provisions in clause 5 above these General Terms and Conditions shall apply in addition.
    4. The limitation period for material defect claims shall be one year from the start of the statutory limitation period. The statutory periods for recourse according to § 478 BGB remain unaffected. The same applies insofar as the law prescribes longer periods in accordance with § 438 Para. 1 No. 2 or § 634a Para. 1 No. 2 BGB, in the event of an intentional or grossly negligent breach of duty by us, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act (Produkthaftungsgesetz).
    5. The processing of a notification of material defects by you by us shall only lead to the suspension of the statute of limitations insofar as the statutory prerequisites for this exist. A restart of the statute of limitations does not occur as a result.
    6. A subsequent performance (new delivery or subsequent improvement) can only have an influence on the limitation period of the defect triggering the subsequent performance.
    7. We shall be entitled to demand reimbursement of our expenses to the extent that
      1. we take action on the basis of a notification without a defect being present, unless you could not reasonably have recognised that no defect was present, or
      2. a reported malfunction is not reproducible or otherwise demonstrable by you as a defect, or
      3. additional expenditure due to improper fulfilment of your obligations.


III. Data protection and final provisions

  1. Data protection

    1. Insofar as you provide us with personal data from you or from your area as part of our assignment or we can access this data, we will only process and use this data for the execution of the contract. We will follow your instructions for the handling of this data. Any adverse consequences of such instructions for the execution of the contract shall be borne by you. You will agree with us the details for handling your data in accordance with the data protection requirements.
    2. Without prejudice to our own responsibility to comply with all data protection regulations, you shall remain the person responsible in the contractual relationship. We are neither contract data processors nor jointly responsible for the processing in the sense of data protection law. If you process personal data (including collection and use), you warrant that you are entitled to do so in accordance with the applicable provisions, in particular data protection regulations, and in particular that you are entitled to make this data available to us or allow us access to it. In the event of a breach, you shall indemnify us against claims by third parties.
    3. The following applies to the relationship between us and you: You are responsible to the person concerned for the processing (including collection and use) of personal data, unless we are responsible for any claims of the person concerned due to a breach of duty attributable to us. They shall be responsible for examining, processing and responding to any enquiries, requests and claims of the data subject. This shall also apply if the person concerned makes use of our services. We will support you within the scope of our duties.
    4. We guarantee that your data will be stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area, unless otherwise agreed.


  2. Final provisions

    1. Insofar as our contracts or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed for filling these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole.
    2. If an individual provision of our contracts or these General Terms and Conditions becomes invalid or unenforceable in whole or in part, the validity of the remaining provisions shall remain unaffected.
    3. An amendment to our contracts or these General Terms and Conditions must be made in writing. This shall also apply to any waiver of the written form requirement.
    4. The law of the Federal Republic of Germany shall apply exclusively to our contracts and these General Terms and Conditions.
    5. The exclusive place of jurisdiction is Munich. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
    6. Only the German version of these General Terms and Conditions is legally binding.


V. 1.0/19_en
ROKOCO GmbH /
ROKOCO Predictive Analytics GmbH
Ludwig-Ganghofer-Str. 6
82031 Grünwald
T. +49 89 6200 9357 0
info@rokoco.com
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