General Terms and Conditions  
Bilfinger Connected Asset Performance  BCAP®

Preliminary remarks
The Parties hereby agree a joint digitalisation project in which they wish to avail themselves of the opportunities of a comprehensive digitalisation of the production and maintenance process for processing facilities of the Customer. 
Together with BCAP®, Bilfinger has created a concept for digitalisation in the process industry. BCAP® has committed itself technologically to a state-of-the-art cloud architecture combining various data sources of the Customer. Data sources may be e.g. process control systems, maintenance systems, energy management systems and others. 
Based on its data, the Customer obtains access to modules via the BCAP® Portal. To a certain extent, BCAP® also comprises consulting services enabling the Customer to reap the full potential of digitalisation. 
1.	Definitions
BCAP® Order	
The document, signed by both Parties in their own hand through persons representing them, in which the scope of the Digitalisation Project is agreed.
BCAP®	
Bilfinger Connected Asset Performance, the concept of Bilfinger for digitalisation of the process industry. 
BCAP® GTCs		
These General Terms and Conditions.
Bilfinger	
Bilfinger Digital Next GmbH, Langer Anger 3-5, 69115 Heidelberg, Germany.
BCAP® Platform	
Cloud-based platform for networking data from production, preventive maintenance and engineering, including self-learning systems.
Digitalisation Project	
The project agreed by the Parties with the BCAP® Agreement, consisting of the phases BCAP® Start-Up and BCAP® Live. 
Customer		
The company defined in the BCAP® Order.
Performance Specification	
The performance specification applying to the respective Module. 
Performance Agreement	
The document, signed by both Parties in their own hand through persons representing them, in which the services to be performed for the respective phase are agreed. 
Module		
Modules offered by Bilfinger under BCAP® that may additionally be selected by the Customer.
Module GTCs	
The General Terms and Conditions that apply to the respective Module that the Customer has reserved in the BCAP® Order.
Parties	
Bilfinger and the Customer.
BCAP® Agreement	
The agreement between Bilfinger and the Customer relating to the Digitalisation Project with its integral parts as agreed in clause 2. 
2.	Integral parts of the Agreement
2.1	The BCAP® Agreement governs the contractual relationships between the Parties under the Digitalisation Project. It covers the following integral parts of the Agreement:
(a)	BCAP® Order in its most recent version as amended, 
(b)	Performance Agreement BCAP® Taste, BCAP® Start-Up and Performance Agreement BCAP® Live, depending on the phase reached by the Digitalisation Project,
(c)	Module GTCs with scope of application solely for the respective Module,
(d)	Performance specifications with scope of application solely for the respective Module, 
(e)	BCAP® GTCs.
2.2	In the event of any discrepancies between integral parts of the Agreement, the integral part of the Agreement first specified in clause 2.1 in each case shall prevail. 
2.3	Any conflicting or derogating general terms and conditions of the Customer shall not become an integral part of the Agreement.
3.	Scope of performance
3.1	In the BCAP® Order, the Parties shall agree on the scope of the Digitalisation Project, in particular:
(a)	commencement and end of the individual project phases,
(b)	booking of Modules,
(c)	definition of facilities concerned, and
(d)	remuneration.
3.2	Changes to the BCAP® Order in the course of the Digitalisation Project are part of the nature of the cooperation between the Parties. However, such changes shall be valid only if a new BCAP® Order is mutually signed by the Parties in their own hand through persons authorised to represent them. Each BCAP® Order shall enter into force on being signed by both Parties and shall apply until a new BCAP® Order is signed, with the result that the most recent version as amended shall apply. The BCAP® Orders shall be consecutively numbered. 
3.3	Bilfinger shall provide the following services under the BCAP® Agreement:
(a)	Consulting services
Bilfinger shall assist the Customer with analysis, consulting and training relating to the full range of options of the BCAP® Platform on which the data from production, preventive maintenance and engineering as well as further possible facility systems (e.g. energy management) can be networked and processed. Further details are governed by the Performance Agreement at the respective phase.
(b)	Licensing of Modules
To the extent agreed in the BCAP® Order, the Customer shall obtain access to Modules available on the BCAP® Platform and further defined in the Performance Specification of the respective Module. Insofar, the non-exclusive provision of the BCAP® Platform and of the Module by Bilfinger for use by the Customer via a remote data connection shall be an integral part of the Agreement. The right to use the BCAP® Platform and the Modules shall be limited to the Customer’s own employees. The use and licensing of the Modules shall be subject to the respective Module GTCs. In the event of discrepancies between the BCAP® GTCs and the Module GTCs, the Module GTCs applicable to the Module concerned in each case shall prevail.
(c)	Modules of third-party providers
Where applicable, third-party providers make available Modules on the BCAP® Platform. In this regard, an agreement relating to the use and licensing of the respective Module shall be entered into exclusively and directly between the third-party provider and the Customer. Bilfinger shall act as representative for the third-party provider and shall not be a party to the agreement between the third-party provider and the Customer. 
3.4	Bilfinger shall be entitled to avail itself of the assistance by vicarious agents (Erfüllungsgehilfe) in providing the services agreed under the BCAP® Agreement. Bilfinger shall impose on all vicarious agents a confidentiality undertaking to the same extent as Bilfinger undertakes towards the Customer to maintain confidentiality.
3.5	The hardware and software needed by the Customer on site shall not be part of Bilfinger’s performance obligation. Such investments shall be borne by the Customer. 
4.	Cooperation and project management
4.1	The Customer shall be closely involved in the Digitalisation Project and in the development of solutions. The Customer understands that its contributions are indispensable for the success of the Digitalisation Project. 
4.2	The Customer shall assist Bilfinger in providing the services ordered to the extent which is reasonable, required and expedient. The Customer shall among other things procure that Bilfinger shall receive all required information and documents in good time and in complete form, that the conditions necessary for performance of the services on its operating site have been fulfilled (such as IT and communications infrastructure, expedient premises and office services), and that specialist personnel of the Customer are available in such sufficient number as to ensure the framework conditions required for the performance of services.
4.3	In particular, Bilfinger shall rely on the following cooperation services of the Customer:
(a)	The Customer shall appoint a project manager who, together with the project manager of Bilfinger, shall be responsible for implementing the Project.
(b)	Provision of the systems, their specification and access to interfaces
(c)	Provision of the data incl. their explanation
(d)	Drawing up the reports (dashboards & reports) which are to be retrievable from the BCAP® Platform
(e)	Releasing the Customer’s employees from their duties so that they may complete the online training
(f)	Notifying without undue delay with regard to changes to facilities and systems
(g)	Installation of any infrastructure installations and adaptations needed
(h)	Access for employees of Bilfinger and for employees of vicarious agents to the Customer’s factory and to the necessary technical facilities, including the provision at no charge of Customer premises and  social facilities needed in this connection
(i)	Provision at no charge of energies needed.
4.4	Unless otherwise agreed under the BCAP® Order, the Parties agree a Steering Committee which shall be constituted of one person each from a Party, i.e. of two persons in total. These shall be persons other than the project managers. Each Party shall be entitled to delegate a representative to the Steering Committee other than the previously specified person. The other Party may object to the change in delegation for good cause. Good cause shall exist among other things if the representative does not possess the requisite professional qualification. 
4.5	The Steering Committee shall have a quorum when all its members are present. No particular form shall apply to convocations of the Steering Committee. 
4.6	The Steering Committee shall escort the Digitalisation Project and shall take all necessary decisions. In particular, it shall draw up a schedule and take the decision on which measures are clarified. All decisions shall be taken unanimously. 
4.7	Decisions having a binding effect on one or both Parties shall not be valid unless agreed in an updated BCAP® Order.
4.8	Only Bilfinger may issue instructions to its employees.
4.9	Only the Customer may issue instructions to its employees. 
5.	Term, termination
5.1	The BCAP® Agreement is entered into for an indefinite term. 
5.2	Either Party shall be entitled to end the BCAP® Agreement by way of ordinary termination subject to the following termination notice periods. The termination notice must have reached the member of the Steering Committee of the respective other Party in writing no later than four weeks before the desired end of the Agreement:
(a)	three months from commencement of the Phase BCAP® Start-Up and thereafter every three months up to commencement of the Phase BCAP® Live.
(b)	twelve months from commencement of the Phase BCAP® Live and thereafter every six months.
5.3	Each Party is reserved the right to terminate the BCAP® Agreement for good cause. 
5.4	For BCAP® Taste, the periods agreed and defined in the BCAP® Order shall apply.
6.	Remuneration and payment
6.1	The amount of remuneration shall be agreed in the BCAP® Order.
6.2	Invoicing shall take place on a monthly basis. The payment term shall be 14 days net. 
7.	Joint marketing
7.1	After successful introduction, the Parties shall agree on a quotation of the Customer by which both Parties may advertise their cooperation.
7.2	Other publications relating to the cooperation shall be permitted only in a manner as previously agreed on between the Parties in text form sufficiently in advance. 
8.	Exchange of data and use of know-how and work results
8.1	In order for Bilfinger to fulfil its obligations under the BCAP® Agreement, the Customer must transfer data from its IT and/or production systems to Bilfinger or to an authorised agent of Bilfinger. The transfer must take place permanently and/or periodically, either via automated interfaces yet to be implemented or by means of secure data transfer. The transferred data shall be stored, processed, prepared and the agreed results produced by IT systems managed by Bilfinger employees. The results shall then be made available to the Customer via the BCAP® Platform as part of the agreed services. 
8.2	The Customer may use the know-how and work results gained on the basis of its data and made available on the BCAP® Platform without limitation in time, territory or content.
8.3	The data, know-how and work results stored on the BCAP® Platform shall be kept available by Bilfinger for a further three months after the end of the Agreement. During that period, a data transfer may be requested by the Customer which Bilfinger shall perform jointly with the Customer in return for a reasonable compensation for expenses. After such period, the possibility of accessing the data, know-how and work results shall expire for the Customer. 
8.4	The BCAP® Platform and, where applicable, also Modules shall be based on an artificial intelligence which relies on being trained on as large an amount of data as possible. By uploading data, the Customer grants Bilfinger an irrevocable, non-exclusive, royalty-free right, unlimited in territory and transferable to affiliates of Bilfinger, 
(a)	to store and to reproduce the data specifically uploaded by the Customer to such extent and for such period as required to provide the services owed by Bilfinger under the BCAP® Agreement;
(b)	to use the data specifically uploaded by the Customer once for training the artificial intelligence and to store and reproduce the same to the extent required for such purpose; and
(c)	to store, reproduce in abstract form without limitation in term, the elements from the data and their relationships and to use the same for providing and further developing the BCAP® Portal and its Modules, and for developing, providing and further developing other products and services such as automated engineering, engineering assistant, etc..
8.5	In the relationship to the Customer, Bilfinger shall retain sole title to all copyright, database and other rights in BCAP®. This shall apply in particular to all data, all know-how and all machine learning models created from the training pursuant to clause 8.4(b). Bilfinger shall be entitled to store, to reproduce, without limitation in term and territory, all data, know-how and all machine learning models created from the training pursuant to clause 8.4(b) and to use the same for providing and further developing the BCAP® Portal and for developing, providing and further developing other products and services such as automated engineering, engineering assistant, etc..
8.6	Bilfinger shall store the raw data transmitted by the Customer exclusively in the cases specified in clauses 8.4(a) and 8.4(b). After completion of training, the data shall no longer be available to Bilfinger in their raw form. Bilfinger shall moreover ensure that in the cases specified in clause 8.4(c) it shall not be possible to make any inferences about the Customer.
8.7	Instructing third parties, e.g. for additional analyses, shall be allowed after an equivalent confidentiality agreement has been entered into with a third party. In this regard, however, the data must be redacted in such a way that no direct link to the Customer can be established. This shall not apply if the Customer waives such requirement. 
9.	Power of disposal over rights of use; indemnification in the case of third-party rights
The Customer warrants that it is the proprietor of all copyright and other rights in the data provided to Bilfinger which it needs to place into the BCAP® Portal and to be permitted to use the BCAP® Portal and the Modules, including use of the elements from the data and their relationships for training, on a permanent basis for several customers, the artificial intelligence on which the BCAP® Portal and, where applicable, also Modules are based. The Customer shall indemnify Bilfinger on first demand from all claims asserted by third parties against Bilfinger on the grounds of alleged rights in the Source Files being infringed by the use provided for in clause 8.4 and shall bear the related legal defence costs to a reasonable extent in the event Bilfinger should decide to defend itself against such claims.
10.	Data protection and confidentiality
10.1	The Customer and Bilfinger mutually undertake to comply with data protection and data security in accordance with the state of the art and the legal provisions in force. 
10.2	The BCAP® Platform is not intended for processing personal data. The Customer undertakes not to transfer any personal data to Bilfinger via the BCAP® Platform. The same shall apply to the Modules. 
10.3	If in the individual case a Module requires personal data to be processed, the Parties shall agree on separate provisions for that purpose in the Module GTCs and/or in the BCAP® Order. 
10.4	User administration of the BCAP® Platform and the Modules shall take place via the systems of the Customer. In this connection, the Customer shall transfer to Bilfinger as personal data only the user name and the authorisations associated with such user name. Such data shall be processed by Bilfinger or its authorised agents solely for the automated decision on access to the respective service. Personal data needed in the context of contractual performance and provision of services shall be processed by Bilfinger in accordance with the data protection provisions in force.   
10.5	The Parties undertake to maintain strict secrecy about all confidential matters of which they become apprised in connection with the BCAP® Agreement, in particular business or trade secrets of the respective other Party, and shall neither disclose the same to third parties nor exploit the same in any other way. Within the meaning of this provision, third parties shall not be advisors, attorneys and similar persons who are entrusted with safeguarding the interests of the respective Party. Entities affiliated with Bilfinger within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz – AktG) shall not be deemed third parties within the meaning of this provision. 
11.	Non-solicitation
During the term of validity of the BCAP® Agreement and for a period of six months after it has ended, the Customer undertakes not to employ, whether directly or indirectly, employees of Bilfinger or of its vicarious agents.
12.	Copyright in software
The software edited by Bilfinger as part of the Order is copyright protected. All rights in the software, in particular the comprehensive copyright with all authorisations in the programs, documents, concepts and information provided in the context of performance of the Order, shall be retained exclusively by Bilfinger and/or Bilfinger’s licensors, also to the extent such items were created through specifications or collaboration of the Customer. In these items, the Customer shall have the authorisations to use the same in its own company, namely exclusively for the functions which Bilfinger provides to the Customer via the BCAP® Platform.
13.	Liability for defects
13.1	If the BCAP® Platform or a Module is defective because their suitability for contractual use is impaired to a more than merely insignificant extent, Bilfinger shall be liable in accordance with the statutory provisions for defects in material and defects in title, subject, however, to the limitations set by the provisions of clause 14. For defects in the BCAP® Platform already present when the BCAP® Platform was delivered to the Customer, Bilfinger shall be liable only if such defects are attributable to Bilfinger. For defects in the Modules already present when the Module was delivered to the Customer, Bilfinger likewise shall be liable only if such defects are attributable to Bilfinger.
13.2	The Customer shall notify any defects without undue delay.
14.	Limitation of liability
14.1	The Parties shall pay damages and make compensation for wasted expenses, regardless of the legal grounds (e.g. under obligations created by legal transactions and obligations similar to legal transactions, material defects and defects in title, breach of duty and tort) only to the extent provided for in this clause 14.
14.2	The liability for intent, gross negligence and assumption of a guarantee is unlimited.
14.3	In the event of a simple negligent breach of a cardinal obligation (obligation the fulfilment of which is essential for the proper performance of the contract, the observance of which the user regularly relies on and may rely on and the breach of which endangers the achievement of the purpose of the contract), the parties shall be liable to the extent of the typical damage foreseeable at the time the contract was concluded, but limited to a maximum of the order value.
14.4	The right of objection to contributory negligence remains open for the other Party. In particular, each Party is obligated to comply with all legal provisions, safety information, warnings and other product-related information according to the state of the art and in the country concerned, and the obligation to back up data on a regular basis according to the state of the art.
14.5	In the event of injury to life, limb and health and claims under the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG), the statutory provisions shall apply without limitations.
14.6	Apart from that, the Parties exclude liability amongst each other. 
14.7	Unforeseeable and unavoidable events which are beyond the Parties’ control and for which the Parties are not responsible, such as force majeure, war, industrial action, natural disasters shall not release them from their duty to effect timely delivery or performance during the period of such events. Agreed time limits shall be extended by the duration of the impairment; the respective other Party shall be notified of the occurrence of the impairment in an appropriate manner. If the end of the impairment is not foreseeable or lasts longer than two months, either Party shall be entitled to terminate the Agreement for good cause.
14.8	Each Party shall at all times use updated antivirus programs and take appropriate measures to protect their own IT systems and data. However, the Parties agree that IT systems cannot be completely secured and that it is possible for third parties to gain access to IT systems and data. The Parties themselves shall each bear responsibility for the risks arising from this. 
15.	Miscellaneous provisions
15.1	If declarations under the BCAP® Agreement are made to the other Party, they must be directed to the member of the Steering Committee delegated by the other Party.
15.2	Bilfinger shall notify the Customer in text form of any amendments to the BCAP® Agreement or the Module GTCs no later than four weeks before the proposed effective date of such amendments. The Customer’s consent shall be deemed to have been given if it has not informed its refusal thereof in text form before the proposed effective date of the amendments. 
15.3	The place of performance for all services of Bilfinger shall be Heidelberg unless a derogating place of performance is agreed with the Customer. The place of performance for all payments is Heidelberg.
15.4	Should any provision of the BCAP® Agreement be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of the BCAP® Agreement. The same shall apply if the BCAP® Agreement should be found to have a gap. In lieu of the invalid provision or in order to fill the gap, such provision shall be deemed to have been agreed which – to the extent permitted by law – achieves the purchase that the Parties pursued by the invalid provision or – in the case of a gap – by the BCAP® Agreement as a whole.
15.5	The BCAP® Agreement shall be governed by and construed in accordance with German substantive law on contracts. German international private law and the UN Sales Convention are excluded. 
15.6	The courts of competent jurisdiction for Heidelberg shall have exclusive jurisdiction over all disputes arising in connection with the BCAP® Agreement or relating to its validity.

Last updated: 25 July 2019