General Terms and Conditions

1. Area of application

The legal relationship between Tessitura and the customer is based exclusively on the contract concluded between the parties, which includes these GTC. General terms and conditions of the customer are excluded. Counter-confirmations by the customer with reference to his terms and conditions are hereby rejected.

2 Subject matter of the contract, scope of services

2.1 Tessitura provides the client with the Odeon software for use to the agreed extent for the duration of the contractual relationship (the "Service"). Odeon is operated and maintained on Tessitura servers.

2.2 Tessitura will adapt the Service at its own discretion in the form of patches, updates and upgrades if this (i) serves technical progress or (ii) appears necessary to prevent misuse or to remedy security problems. In addition, Tessitura is authorised to adapt the Service if (i) applicable law requires such changes, (ii) the changes are beneficial to the Client or (iii) the changes are of a purely technical nature and have no material impact on the Client. All updates and changes must be announced to the customer with reasonable advance notice.

2.3 Instruction of the customer in the use of the service or training is not owed unless contractually agreed.

2.4 Tessitura shall send the client access information and instructions that he requires for use to the agreed extent. The customer is not permitted to provide this access data to external third parties.

3. provision of the software, availability, technical requirements

3.1 Tessitura provides the service for use at the network access point of its own service location (the "transfer point"). The customer is responsible for the Internet connection between the customer and the transfer point.

3.2 Tessitura ensures an average annual availability of the software of 99 %. The decisive factor is the availability of the software at the transfer point. Not included in the calculation of availability are (i) the regular maintenance windows, which can be up to [6] hours per week and are usually carried out between [22:00] and [4:00] Central European Time, (ii) times of non-availability due to mandatory unscheduled maintenance work necessary to eliminate faults, (iii) times of non-availability due to circumstances beyond the control of Tessitura, in particular force majeure and for which Tessitura is not responsible.

4. provision of hardware ("Haas")

If the customer not only purchases the service from Tessitura, but also hardware, this hardware is provided as "Hardware-as-a-Service (HaaS)" according to agreements concluded between the parties, subject to the following supplementary conditions:

4.1 Provision

4.1.1 Provision of hardware: During the term of the contract, Tessitura shall provide the customer with the contractually agreed hardware (the "system") in the form of a rental agreement. 

4.1.2 Operational readiness: Tessitura undertakes to establish the operational readiness of the system at the client's premises in accordance with the contract after prior consultation. Prior to the provision of the system by Tessitura, the client must ensure that the cooperation and performance obligations incumbent upon him have been fulfilled. The client cannot derive any claims against Tessitura from delays that are based on omitted or insufficient co-operation, if Tessitura is not responsible for the delay. A written commissioning report is to be prepared on the operational readiness of the system. The customer undertakes to confirm and accept the proper establishment of operational readiness by signing the commissioning report. Acceptance shall be deemed to have been granted when the customer puts the system into operation.

4.1.3 Safety stock: To ensure operational readiness, a safety stock is created on site at the customer's premises. The scope of the safety stock depends on the contractual agreements. The safety stock may only be used in agreement with Tessitura for the replacement of failed hardware.

4.2 Onboarding

4.2.1 Introduction: Tessitura carries out a one-off onboarding (usually after installation of the hardware and operational readiness at the customer's premises) for the customer in a suitable and appropriate form (e.g. in person or digitally) and to an appropriate extent by qualified Tessitura personnel, unless otherwise agreed.

4.2.2 Documentation: Tessitura shall provide the customer with the documentation sheets as PDF files. The customer may reproduce the PDF files for his own training purposes and use them for the training of his own employees. Disclosure to third parties is prohibited and the customer guarantees to treat the PDF files confidentially.

4.3 Service level services
Tessitura undertakes to provide service level services for maintenance purposes in relation to the hardware provided. The scope of the service level services is determined in each case by the maintenance contract to be agreed separately.

4.4 Rights and obligations of the customer

4.4.1 Technical requirements: The client undertakes to provide Tessitura with all documents, information and/or data required for the provision of the services completely, correctly, in good time and free of charge. This applies in particular with regard to the client's IT systems. The client shall ensure that the software used is up-to-date and corresponds to the desired security settings. Tessitura will provide IT security support in test scenarios at the client's request.

4.4.2 Duties and obligations to co-operate: The client undertakes to support Tessitura to the extent necessary and to create all conditions necessary for the proper execution of the contract in his sphere of operation. If the cooperation of the customer is not provided for in the schedules of the parties, the customer must provide the cooperation in a timely and proper manner, but in any case in such a way that the agreed service is not impaired.

4.4.3 The customer shall make the following contributions:
Communication:

• Before the start of the project, the customer shall appoint a responsible German or English-speaking project manager who shall act as the central point of contact for Tessitura in all matters at least until the final acceptance of the project;
• Roles, contact details and project responsibilities are defined and documented at the latest at the project kick-off with Tessitura;
• The customer must check the products purchased from Tessitura upon receipt for conformity with the quantity, identity and externally recognisable damage and transport damage. If the customer discovers damage or defects, Tessitura must be notified immediately. Hidden defects that are not discovered during the incoming goods inspection must be reported to Tessitura within 3 working days of discovery;
• Notification of environmental changes and other operating conditions;
• Notification of changes to system components.

Other commitments:

• A contact person is on site for the duration of the installation
• Accessibility to the hall during installation is guaranteed. In the event of a delay in installation due to access restrictions on the part of the customer, Tessitura is authorised to invoice the additional costs demonstrably incurred.
• During installation, it must be ensured that the machine in question is out of operation and that Tessitura's technicians can install the sensors etc. Furthermore, a machine operator must be provided by the customer who can run the machine in test mode for Tessitura in order to test the function of the installation.
• The customer is responsible for backing up the system and the data.
• For comprehensive system monitoring, updates and the management of incidents, problems and changes, the Tessitura support team needs access to the system. This can be done via an encrypted VPN connection (Internet access) or a site-to-site (S2S) VPN. For remote support, the customer must grant access to the relevant system components (e.g. Citrix Terminal Server Access). If remote access cannot be granted, no system monitoring can be carried out.

4.5 If the customer does not, not in time or not completely fulfil the obligations to cooperate, the customer cannot assert any claims against Tessitura due to delay in performance.

4.6 Damage or loss: In the event of loss, theft or damage to a device, the customer must compensate Tessitura for the damage, even if he is not at fault.

5 Reporting requirements

5.1 Compliance with deadlines: If Tessitura discovers during the fulfilment of the contract that compliance with deadlines in accordance with the schedule and service plan is jeopardised, Tessitura shall inform the client immediately.

5.2 Execution of the contract: Tessitura will inform the customer immediately if it is recognised that

• the customer's specifications are materially incorrect, incomplete or contradictory, or
• cannot be performed as agreed, or
• the system environment are not suitable to bring about operational readiness. As far as possible with reasonable effort, Tessitura will at the same time inform the customer of the consequences recognisable to him and await his decision before taking further measures. The customer shall inform Tessitura of this decision without delay. Tessitura is authorised to check and test the specifications, deliveries and system environment only insofar as this is necessary to establish operational readiness.

6. fees

6.1 The client shall pay Tessitura the ongoing fees as agreed in the contract. Unless otherwise stated, the fees are subject to statutory VAT and are payable at the end of each month.

6.2 If remuneration per person-day is agreed for additional services, a "person-day" means the time spent by an employee of 10 hours. For less than 5 hours, half a person-day is charged.

6.3 Travel costs associated with the service (overnight stays, flights, train and car journeys) and expenses are initially agreed with the customer and invoiced monthly after approval.

6.4 All payments under this Agreement shall be made within fourteen (14) days of receipt of the relevant invoice.

6.5 All payments due shall be made in euros and electronically by bank transfer to the account details provided by Tessitura. If the customer receives notification of a change in bank details, this is only to be observed in order to avoid fraud if the change is confirmed by Tessitura by telephone Tessitura grants the customer the right to cancel the booking of services for a machine by unilateral declaration at any time, with effect from the beginning of the following month. In the event of cancellation, the basic fee remains unchanged, but the customer no longer owes the fee for the respective machine. This right is limited to a maximum volume of 10 % of the integrated machines (workers) based on the maximum number of machines ever integrated during the contract term.

7. rights of use to the services of Tessitura

7.1 Subject to payment of the agreed remuneration, the customer receives from Tessitura the simple and non-transferable right to use the services as intended for the duration of the contract to the agreed extent.

7.2 The software may only be used for the customer's own business purposes. In particular, the customer may not use the services

7.2.1. to third parties outside the agreed user group;

7.2.2. modify, decompile, disassemble, reconstruct or in any other way edit the software, unless legally authorised to do so;

7.2.3. use it to distribute illegal content; and/or

7.2.4. sell, sub-licence, rent, transfer or in any other way commercially exploit outside the contractual purposes.

7.3 Tessitura reserves the right to delete infringing content as well as content with viruses or other harmful components. The customer will be informed of the deletion; in the event of imminent danger, notification will only be given after the deletion if necessary.

7.4 The customer may only reproduce the services insofar as this is covered by the intended use of the services in accordance with the current service description.

7.5 After termination of the contract, the rights of use end automatically without the need for a declaration by Tessitura.

7.6 If the customer wishes to increase the scope of use of the service agreed upon conclusion of the contract (e.g. adding further modules or functions), he may do so with a lead time of two weeks to the 1st of the next calendar month by e-mail to XX without this leading to an extension of the contract. The fees for the remaining term will be adjusted in accordance with the addition.

7.7 The Services may contain open source software components. The use of these components is exclusively subject to the corresponding terms of use of the open source software components that are transmitted and/or referenced as part of the open source software components. Tessitura will inform the customer about the use of open source components and the customer will observe the corresponding terms of use.

7.8 If Tessitura provides APIs or add-ons for third-party software, this third-party software is not covered by the granting of rights. The customer is responsible for obtaining the corresponding rights of use.

8. support services

8.1 Support requests can be sent to the Tessitura ticket system.

8.2 Support requests are generally processed on working days (NRW) between 8 a.m. and 6 p.m. in accordance with the service levels in Annex A.

8.3 Support requests must be reported in text form with a comprehensible description of the error symptoms, which should, if possible, be substantiated by recordings, screenshots or other documents proving the defects. The report of the defect should enable the error to be reproduced.

9 Obligations of the customer to co-operate; rights of use to data and analysis data

9.1 Access data for using the services must be kept secret and not made accessible to third parties.

9.2 The customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programmes for this purpose.

9.3 The Customer is solely responsible for the content and data uploaded by him/her in the context of using the Services (the "Content(s)") and must ensure that these do not infringe any third-party rights or applicable law.

9.4 The Client indemnifies Tessitura against all claims, disputes, losses, damages, expenses, costs (including court costs and legal fees) and liabilities ("Losses") arising out of or in connection with (i) a culpable breach of the Client's contractual obligations or (ii) a breach of third party rights by the Client's content distributed via the Services.

9.5 The contents stored by the customer on the storage space intended for him may be protected by copyright. The client hereby grants Tessitura the right to make the contents stored on the server accessible to the client via the Internet when the client requests them and, in particular, to reproduce and transmit them for this purpose and to reproduce them for the purpose of data backup. The customer warrants that the corresponding rights have been licensed to third parties if necessary.

10. warranty

The statutory provisions on warranty in tenancy agreements apply. However, the application of Section 536a (2) BGB (tenant's right of self-remedy) is excluded.

11 Liability of Tessitura for damages

11.1 In the following cases, Tessitura shall be liable for damages or compensation for futile expenses to an unlimited extent and in accordance with the statutory limitation periods:

11.1.1. in the event of intent and gross negligence on the part of Tessitura,

11.1.2. injury to life, limb or health,

11.1.3. in the case of guarantees or fraudulent concealment of defects by Tessitura and

11.1.4. in the case of claims against Tessitura under the Product Liability Act.

11.2 In cases of simple negligence, Tessitura is liable for a breach of essential contractual obligations by Tessitura or one of its legal representatives or vicarious agents for the contract-typical, foreseeable damage that should have been prevented by the breached obligation. An essential contractual obligation is an obligation whose fulfilment is essential for the proper execution of this contract or whose breach jeopardises the achievement of the purpose of the contract and on whose compliance the customer can regularly rely.

11.3 Liability in accordance with clause 11.2 is limited to a total of EUR 500,000 for personal injury, EUR 500,000 for financial loss, property damage and damage to activities, and EUR 2,500,000 for loss of data.

11.4 The above liability regulations apply accordingly to the legal representatives and vicarious agents of Tessitura.

12. secrecy

12.1 The parties undertake to keep confidential information confidential. "Confidential Information" means all commercial, technical, scientific and other information of the Parties relating to any business strategies, ideas, intellectual property rights, developments, know-how, co-operation and production of the Parties that has already been disclosed or will be disclosed under this Agreement.

12.2 Such information of a party is excluded from the obligation of confidentiality,

12.2.1. which were already in the possession of the receiving party before handover;

12.2.2. which were already publicly known at the time of handover;

12.2.3. which become generally known after their transfer by publication or in any other way, unless this occurs as a result of a breach of this confidentiality obligation;

12.2.4. the other party has given its prior consent in text form (including e-mails) to their disclosure to third parties and if the third parties are obliged to maintain confidentiality in accordance with this agreement;

12.2.5. for which there is a legal obligation to surrender or disclose.

12.3 Disclosure for the purpose of preparing or implementing this agreement to persons subject to professional secrecy is possible.

12.4 This confidentiality agreement ends 3 years after the end of the contract. At the end of the contract, all Confidential Information must be deleted or returned to the disclosing party. Proof must be provided upon request. This does not apply to copies on backups or other backup systems for compliance purposes.

13. data protection and data security

13.1 The customer shall comply with the applicable data protection regulations when using the software.

13.2 As part of the execution of the contract, Tessitura processes personal data as intended, for which the client is responsible under data protection law. For the execution of this order processing, Tessitura and the client agree on the validity of the data protection agreement attached to these General Terms and Conditions. Order processing contract.

13.3 The data uploaded by the customer in the course of using the software shall remain the property of the customer and shall not be passed on to third parties.

13.4 Up to three months after termination of the contract, the customer is entitled to have his data exported in a common format.

14. naming as reference

Tessitura may name the client as a reference, using the client's company logo, if the planned use is notified in advance in text form and the client does not object in text form within 5 working days. The customer may subsequently object to the use in text form at any time.

15. notifications

Notifications from the customer shall be sent by e-mail to or by post. Verbal notifications must be confirmed immediately in text form. The customer must inform Tessitura immediately of any changes to customer data or other circumstances that affect the contractual relationship.

16. force majeure

16.1. Force majeure of any kind, in particular unforeseeable operational, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of labour, energy, raw materials or materials, strikes, lockouts, pandemic or epidemic-related restrictions, official orders or other obstacles for which the contractor is not responsible and which delay, prevent or make unreasonable the provision of services by Tessitura shall release Tessitura from the obligation to perform for the duration and extent of the disruption, including a reasonable restart phase.

16.2 If the service is delayed by more than eight weeks as a result of the disruption, Tessitura is entitled to withdraw from the contract.

16.3 Each contracting party shall inform the other contracting party immediately of the cause of any disruption occurring in its area and the duration of the postponement.

17 Contract term and cancellation

17.1 The term of this Agreement shall be as agreed between the Parties in the Main Agreement. Unless expressly stipulated otherwise, the initial term of this contract is 3 years (36 months).

17.2 The contract shall be automatically extended by one (1) further year in each case if neither party cancels in writing at least six (6) months before the end of the contract term. The application of § 545 BGB is excluded.

17.3 The right to extraordinary termination without notice for good cause remains unaffected by this. Good cause justifying termination without notice shall be deemed to exist in particular if

17.3.1. the other party fails to remedy and/or rectify a breach of contract for which it is responsible within a reasonable period of at least ten (10) working days following a corresponding warning by the other party;

17.3.2. insolvency proceedings have been opened against the assets of a participant or the opening of such proceedings has been rejected for lack of assets;

17.3.3. if a party exhibits a serious impairment of its assets, which manifests itself, for example, in a significant deterioration in creditworthiness or in repeated payment delays of more than 20 business days;

17.3.4. the customer repeatedly commits a breach of contract for which a warning has already been issued;

17.3.5. the customer repeatedly violates the obligations to co-operate incumbent upon him and/or a service by Tessitura becomes impossible as a result.

17.4 Written form of cancellation: Any cancellation must be in writing to be effective.

17.5 Upon termination of the contract, the customer must cease using the service. The customer shall return the provided hardware to Tessitura within ten (10) working days after termination of the contract in a condition corresponding to the contractual use. This includes in particular provided data carriers, operating instructions and installation manuals. The copies and downloads made will be completely and irretrievably deleted or destroyed, unless storage is required by law.

18. final provisions

18.1 Only the German language version of these GTC is bindingly agreed between the parties. If Tessitura provides translations of these GTC, these are for information purposes only. In the event of contradictions, the German version shall take precedence.

18.2 This contract is only transferable to a third party with the express written consent of the other contracting party. Notwithstanding this, Tessitura is authorised at any time and without further consent of the customer to transfer the contract to affiliated companies within the meaning of §§ 15 ff. AktG (German Stock Corporation Act) and to have rights and obligations arising from the contract fulfilled or exercised in whole or in part by third parties.

18.3 The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the registered office of Tessitura.

18.4 The place of fulfilment is the registered office of Tessitura.

18.5 The law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.

18.6 Additions and amendments to the contract must be made in writing to be effective. This also applies to this written form requirement itself. There are no verbal collateral agreements.

18.7 Should a provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a breach of §§ 305 ff. BGB, the invalid provision shall be replaced by a valid provision that comes as close as possible to the economic intentions of the parties. The same applies in the event of a loophole. In the event of an invalid term, the legally permissible term shall apply. 

ANNEX A

Service levels

SLA conditions