Legal framework for Engineering, Consulting & Interim, Recruiting & Contracting, Quality & Testing, AI Trainings & digital products, and Expert & Appraisal Services
These General Terms and Conditions (GTC) apply to all contracts, deliveries and services between DiNC-POSiTiVE e. K., Mathildenstr. 22, 58507 Lüdenscheid, Germany (hereinafter “DiNC-POSiTiVE”) and its customers, regardless of the specific business area under which the contract is concluded.
They apply in particular to services in the areas of Engineering Services, Consulting & Interim Management, Recruiting & Contracting, Quality & Testing (including ISTQB, ASPICE and V&V services), AI Trainings & Workshops, the development and provision of digital products and AI agents, as well as Expert and Appraisal Services (including court and out-of-court expert opinions and technical inspections).
These GTC apply exclusively to businesses within the meaning of Sec. 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law. Deviating or supplementary terms of the customer shall only become part of the contract if expressly confirmed in writing by DiNC-POSiTiVE.
Offers made by DiNC-POSiTiVE are subject to change and non-binding unless expressly marked as binding, and are valid for 30 calendar days from the date of the offer unless stated otherwise.
A contract shall only be concluded upon written order confirmation, contract signature, electronic confirmation (e.g. by email), or by commencement of service delivery by DiNC-POSiTiVE.
Verbal side agreements require written confirmation by DiNC-POSiTiVE to be effective.
The specific scope of services results from the respective offer, contract or service description. Offers regularly include the individual service items, prices, any recurring costs, and the applicable payment and contractual terms.
Unless a work contract (Werkvertrag) with a clearly defined deliverable is expressly agreed, DiNC-POSiTiVE owes careful performance of the agreed services (service contract / Dienstvertrag), not a specific economic or technical success.
Any changes or extensions of the scope of services (change requests) require written agreement or documented agreement in text form (e.g. email) and may affect prices and deadlines.
Engineering, consulting and interim management services are provided in accordance with the state of the art and recognized professional standards.
DiNC-POSiTiVE performs its services independently and, in professional terms, free of instructions. Integration into the customer's work organization does not take place unless expressly agreed in a form meeting the applicable legal requirements.
The customer shall provide, in a timely manner and to the extent required for service delivery, all information, documents, system access and points of contact necessary for the performance of the services.
DiNC-POSiTiVE supports customers in the placement of specialists and executives as well as in the placement of self-employed, project-based contractors (freelancers/contractors).
There is no entitlement to a successful placement unless expressly agreed. Where a placement fee is agreed, it becomes due upon conclusion of an employment or service relationship between the customer and the placed individual.
The final selection and hiring decision lies solely with the customer. DiNC-POSiTiVE assumes no liability for the professional performance, reliability or conduct of placed individuals; verifying suitability and references as part of the selection decision is the customer's responsibility.
When self-employed contractors are placed, the customer shall ensure that the cooperation is genuinely conducted on a self-employed basis (no risk of bogus self-employment / Scheinselbständigkeit); DiNC-POSiTiVE does not perform any status determination in this respect unless separately commissioned.
To the extent DiNC-POSiTiVE offers temporary employment (employee leasing) within the meaning of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG) in an individual case, this is provided exclusively on the basis of a valid permit under Sec. 1 AÜG (permit number: [TO BE COMPLETED IF APPLICABLE]).
For leased employees, the statutory requirements regarding equal pay/equal treatment (after expiry of any statutory transition periods), maximum permitted leasing duration, and disclosure of the leasing arrangement to the hirer apply.
This section only applies if DiNC-POSiTiVE actually holds a corresponding permit. If no permit is held, this section must be deleted in its entirety, and the respective services must not be described or offered as temporary employment/employee leasing.
Expert opinions, appraisal statements and technical inspections (including software, electronics and IT forensics expert opinions, opinions related to insurance claims, and court and out-of-court expert opinions) are prepared independently, neutrally, and to the best of knowledge and belief, based on the information available at the time of preparation.
They are intended exclusively for the purpose defined in the respective assignment. Disclosure to third parties or use for other purposes requires the prior written consent of DiNC-POSiTiVE, unless disclosure is legally required (e.g. to courts).
Expert opinions constitute technical assessments and do not replace a legal evaluation by an attorney or a legally binding decision by courts or authorities.
For court-ordered expert opinions, the applicable procedural rules (e.g. German Code of Civil Procedure – ZPO, German Code of Criminal Procedure – StPO) and the instructions of the commissioning court take precedence; these GTC apply supplementarily to the extent legally permissible.
As part of innovation and product services, DiNC-POSiTiVE develops, configures or operates software, AI-based systems (e.g. digital employees / AI agents), and other digital products for the customer.
Where a specific, acceptance-capable deliverable is agreed, Section 13 (Acceptance) applies accordingly. Otherwise, development and configuration services are treated as a service under Section 3.
Usage rights to software individually developed for the customer are governed by Section 14. Open-source and third-party components are used subject to their respective license terms, which will be provided to the customer upon request.
Where AI systems (e.g. third-party language models) are used in the course of service delivery, their output serves as professional support and a basis for decision-making; it does not replace independent professional, legal or economic review by the customer or DiNC-POSiTiVE. DiNC-POSiTiVE gives no warranty as to the accuracy, completeness or currency of AI-generated content; suggestions that are identifiable as AI-generated are professionally reviewed before being incorporated into binding documents.
For AI trainings and workshops, the customer receives a simple, non-transferable right to use the training materials provided, for internal use only, unless expressly agreed otherwise. Disclosure to third parties or reproduction for commercial purposes is not permitted without prior written consent.
Testing and quality assurance services (including test analysis, test design, test automation, code review, ASPICE-compliant testing, and verification & validation) are performed in accordance with the agreed test concept and/or the agreed professional standards.
DiNC-POSiTiVE owes the careful performance of the agreed testing and inspection activities, but not the freedom of the tested system from defects or the complete detection of all possible defects; testing services cannot, as a matter of principle, guarantee that a system is entirely free of defects.
Findings, test results and release recommendations are documented and handed over to the customer; the final release decision for a system or release remains with the customer.
Recurring, typically monthly, operating costs may apply for the operation, further development, AI usage, maintenance and support of delivered digital products or AI agents; the amount is set out in the respective offer.
Where a minimum contract term is agreed, the contractual relationship shall automatically renew for successive periods of [TO BE COMPLETED, e.g. 12] months upon expiry, unless terminated in text form by either party with [TO BE COMPLETED, e.g. 3 months'] notice to the end of the respective term.
Third-party fees (in particular app store, cloud, AI usage or platform fees) shall be borne additionally by the customer, unless expressly stated in the offer as included in the operating costs, and shall be passed on in accordance with the then-current terms of the respective third-party provider.
Remuneration is based on the agreed offer or contract. Unless stated otherwise, all prices are net prices plus applicable statutory value-added tax.
Unless otherwise agreed, invoices are payable within 14 days of the invoice date without deduction. In the event of late payment, DiNC-POSiTiVE is entitled to charge statutory default interest and the statutory default lump sum.
For continuing obligations, DiNC-POSiTiVE is entitled to adjust prices, with reasonable prior notice (at least 6 weeks), to reflect increased costs (e.g. personnel, licensing or AI usage costs); in this case, the customer has a special right of termination effective as of the date the price adjustment takes effect.
The customer undertakes to provide, completely, correctly and in a timely manner, all information, documents, access and decisions required for the performance of the services.
Delays, additional expenses or defects resulting from insufficient, late or incorrect cooperation by the customer shall be borne by the customer and entitle DiNC-POSiTiVE to reasonably adjust deadlines and, where applicable, to charge additional remuneration for the extra effort involved.
Where a specific deliverable (work performance) has been agreed, it will be provided to the customer for acceptance. The customer shall inspect the deliverable without undue delay, and at the latest within 10 business days of provision, and either declare acceptance or notify DiNC-POSiTiVE of any defects in a specific and comprehensible manner.
If no material defects are notified within this period, the deliverable is deemed accepted. Productive use of the deliverable likewise constitutes acceptance, unless the customer simultaneously notifies material defects.
Where DiNC-POSiTiVE creates software, documentation, expert opinions or other copyright-protected works individually for the customer as part of an assignment, the customer shall, upon full payment of the agreed remuneration, receive a simple, geographically and temporally unrestricted right to use the respective deliverable for the contractually intended purposes, unless the offer expressly provides for a more extensive (e.g. exclusive) right of use.
Rights to methods, frameworks, internal tools, templates and generally reusable software components that were not specifically developed for the customer remain with DiNC-POSiTiVE or the respective licensors.
Expert opinions and documentation may only be used for the purpose defined in the respective assignment; publication or disclosure to third parties requires the prior written consent of DiNC-POSiTiVE, unless otherwise legally required.
Both parties undertake to treat all confidential information, trade and business secrets obtained in the course of the cooperation as strictly confidential and to use them only for the purposes of performing the contract.
This obligation shall continue indefinitely after termination of the contractual relationship to the extent it concerns trade secrets within the meaning of the German Trade Secrets Act (GeschGehG), and otherwise for a period of 5 years after termination of the contract.
DiNC-POSiTiVE processes personal data exclusively in compliance with applicable data protection laws, in particular the GDPR and the German Federal Data Protection Act (BDSG). Further information can be found in the privacy policy published on the website.
Where DiNC-POSiTiVE processes personal data on behalf of the customer (in particular in the context of software, AI agent or testing services with access to customer data), the parties shall enter into a separate data processing agreement (DPA) pursuant to Art. 28 GDPR prior to the commencement of such processing.
Where third-party AI services (e.g. language model APIs) are used in the course of service delivery, DiNC-POSiTiVE will, upon request, inform the customer about the services used and any data transfers to third countries and the safeguards in place for such transfers (e.g. EU standard contractual clauses).
DiNC-POSiTiVE shall be liable without limitation in cases of intent and gross negligence, for injury to life, body or health, and to the extent mandatory statutory liability provisions apply (e.g. under the German Product Liability Act).
In cases of slight negligence, DiNC-POSiTiVE shall only be liable for breach of material contractual obligations (cardinal obligations), i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may regularly rely. In such cases, liability is limited in amount to the foreseeable, typical damage, but in any event capped at the coverage amount of DiNC-POSiTiVE's professional/commercial liability insurance of [INSURANCE AMOUNT TO BE COMPLETED] per claim.
Any further liability, in particular for indirect damages, loss of profit and data loss, is excluded to the extent permitted by law. DiNC-POSiTiVE shall only be liable for data recovery to the extent the customer has ensured regular data backups in accordance with the state of the art.
Events of force majeure (including natural disasters, war, pandemics, official orders, or failures of communication networks or third-party cloud/AI services beyond DiNC-POSiTiVE's control) release the affected party from its performance obligations for the duration and to the extent of the impairment, without giving rise to claims for damages.
If such an event persists for more than 60 days, either party is entitled to terminate the affected contract with reasonable notice.
Where a continuing obligation rather than a one-off project is agreed (e.g. interim assignment, support agreement, maintenance), the terms and notice periods stated in the respective offer apply; Section 10 applies additionally with respect to recurring operating costs.
The right of either party to terminate for good cause remains unaffected. Good cause on the part of DiNC-POSiTiVE exists in particular in the event of the customer's default in payment of more than 30 days despite a reminder.
The customer may only set off undisputed claims or claims that have been finally and legally established by a court. The customer is only entitled to exercise a right of retention to the extent its counterclaim is based on the same contractual relationship and is undisputed or has been finally and legally established.
DiNC-POSiTiVE is entitled to engage qualified subcontractors, freelance staff or other vicarious agents to perform the contractual services, provided this does not conflict with legitimate interests of the customer worthy of protection. DiNC-POSiTiVE shall remain the customer's sole contractual partner and responsible for the proper performance of the services in such cases.
For customers domiciled outside Germany, the following applies in addition: unless otherwise agreed, invoicing is in Euro; bank charges for cross-border payments are borne by the customer. Where personal data is transferred to countries outside the EU/EEA in the course of service delivery, this is only done on the basis of appropriate safeguards within the meaning of the GDPR (e.g. EU standard contractual clauses).
Mandatory provisions of the law of the customer's home jurisdiction that protect the customer remain unaffected by the choice of law in Section 25, to the extent legally required.
DiNC-POSiTiVE is entitled to name the customer as a reference and use it in marketing materials in a general form (company name, logo, brief project description without confidential content) after completion of the project, unless the customer expressly objects in writing. The customer may object to this right at any time, with effect for the future.
DiNC-POSiTiVE is entitled to amend these GTC with effect for the future to the extent necessary to adapt to changed legal or technical circumstances and provided this does not unreasonably disadvantage the customer. The customer will be informed of material amendments in text form; if the customer does not object within 6 weeks, the amended GTC are deemed accepted. The customer will be separately notified of this consequence in the amendment notice.
The laws of the Federal Republic of Germany apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of jurisdiction for all disputes arising out of or in connection with this contractual relationship is, to the extent legally permissible, Lüdenscheid, Germany; DiNC-POSiTiVE is also entitled to bring claims at the customer's general place of jurisdiction.
Amendments and additions to this contract require text form; this also applies to any change to this written-form requirement.
Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision.
