A) General information, scope and terminology
1. The following Terms and Conditions apply to all service and delivery contracts as well as obligations arising from the inception of contractual negotiations, initiation of contracts or similar commercial contacts with companies, legal bodies under public law or special funds under public law (hereinafter referred to as “the Customer”). These Terms and Conditions also apply to future contracts and commercial contacts in the version incorporated at the latest at the conclusion of this contractual obligation.
2. Our Terms and Conditions apply exclusively; Customer terms that differ from or supplement them in a manner unfavourable to us do not apply even if we do not explicitly object to them.
3. Contractual content consists solely of written agreements; no ancillary agreements have been made. Contractual amendments or additions are only valid with our written confirmation.
4. In cases of continuing obligation, the Customer will be notified in writing of any changes to provisions and provided with a reference to the affected provisions. These changes are considered accepted by the Customer if the Customer proceeds with the continuing obligation without objecting within an appropriate period of time.
5. Unless otherwise indicated, “goods” are defined as items contractually owed to the Customer, including software, even when provided by intangible means, e.g. through electronic transmission.
B) Quotes, Quote Documents, Price Estimates, Assumptions, Subsequent Offers
1. Our offers are non-binding. Customer offers are considered accepted upon written confirmation by us, e.g. through an order confirmation or invoice for advance payment, or upon performance of the delivery or service.
2. We reserve ownership of and copyright to all documents provided to the Customer, in particular data media, documentation, images, drawings and calculations; they may not be used for others then the contractual purposes, nor made available to any third party. They must be returned to us postage paid as soon as the contract ends or their contractual purpose is fulfilled.
The Customer is obliged to keep the information and data contained therein confidential. This applies in particular to documents and information that are designated confidential. We are entitled at any time to request that documents be returned if their confidentiality is deemed to be at risk. The obligation to maintain confidentiality shall remain unaffected by the termination of the agreement.
3. The Customer is required to carefully verify the accuracy and adequacy of our offer. This applies in particular to project offers containing specific assumptions that we have used in our calculations and service descriptions, and which are designated as such in the offer. The Customer must inform us of any inaccurate assumptions so that we can revise the offer.
4. We are entitled to subcontract.
5. Any costs incurred while preparing a cost estimate requested by the Customer must be reimbursed by the Customer according to the time spent preparing it.
C) Quality of Goods or Services
1. Our goods are intended exclusively for the Customer. The Customer must advise us if it intends to supply goods purchased from us to a consumer, a third company or a reseller that in turn intends to supply goods to a consumer or a third company.
2. Technical data sheets provided by us or the manufacturer form an integral part of the quality agreement. Other public statements are only valid if expressly agreed in writing in the agreement.
3. We reserve the right to make standard technical modifications, particularly improvements, up until delivery, provided that quality is not significantly altered nor the interests of the Customer unreasonably impaired.
4. Statements regarding quality or durability of goods or services do not constitute a guarantee within the meaning of Section 276(1) of the German Civil Code (BGB), nor do they constitute a guarantee within the meaning of Section 443 BGB unless we expressly provide such a guarantee in writing. Any guarantee provided by a third-party manufacturer of a product will be passed on to the Customer; the scope of such a manufacturer’s guarantee is determined by the third-party manufacturer’s guarantee conditions.
5. If goods are created or modified on the basis of Customer`s specifications, we are not required to inspect these specifications unless obligated to do so under a special agreement. The Customer is not entitled to claim defects arising from such specifications or from hardware or software delivered by a third party and used by the Customer.
D) Additional provisions regarding software quality
1. Unless expressly agreed otherwise, the contractually covered software is standard software, i.e. not custom-made for the Customer’s needs. Software delivery contracts are thus considered as purchase contracts. The parties agree that, under the current state of technology, it is impossible to develop standard software which functions flawlessly under all conditions of use.
2. Unless agreed otherwise, software will be delivered in a version compatible with the current versions of Microsoft Windows operating systems.
3. The manufacturer’s original user documentation will be provided for all third-party standard software. We are not required to deliver any additional documentation beyond this. If requested, the Customer may consult the original user documentation before entering into the contract. Documentation is also delivered in the form of the software’s online help resources. The Customer may request more extensive written documentation before entering into the contract, for which we will then submit an offer.
4. We are required to provide the object code of purchased software via data media. We are not required to provide or disclose the software source code.
5. If we are required to install software, the Customer must ensure that the hardware and system-environment requirements indicated, particularly regarding network connections and all cabling, are met prior to installation.
6. If we will be delivering hardware, the Customer must ensure an appropriate hardware and software environment for any hardware or software—whether proprietary or purchased from another supplier—that we will be connecting to it.
7. The Customer is responsible for setting up appropriate monitor workstations and ensuring their compliance with legal workplace-safety regulations; this is neither owed nor will it be verified by us.
8. The Customer will ensure the presence of competent, trained employees during trial use and installation, and, if necessary, suspend other work on the computer system. The Customer is responsible for backing up all of its data prior to each installation.
E) Usage rights
1. Usage rights are transferred to the Customer only upon full payment. Any usage granted prior to full payment may be revoked at any time.
3. Unless agreed otherwise, the Customer receives non-exclusive right to use the software for an indefinite period of time. This right is non-transferable. The Customer is not permitted to grant usage rights to any third party. Usage is limited to a single computer unless a network licence (multi-user licence) is purchased. Software must be fully erased from any hardware being replaced by new hardware. Software may not be installed on multiple hardware units at the same time, whether for storage, use or to keep on hand.
4. In the case of network licences, usage rights are granted for the agreed workstations within the contractually specified local network. The Customer is required to prevent any usage by a third party.
5. Unless required otherwise by law, the Customer is not authorised to duplicate, distribute, make publicly available, lease, modify or edit software or any written documentation provided.
6. Copyright and registration information, particularly software registration codes, may not be removed or altered.
7. We are entitled, without prejudice to other rights, to demand a contractual penalty determined on a case-by-case basis in accordance with Section 315 BGB for each case in which the Customer culpably violates the above provisions. The amount of the contractual penalty may be reviewed by the competent court.
8. Third parties as defined in Section E include Customer affiliates as well as geographically or organisationally separate facilities, such as branch offices.
F) Prices, Remuneration
1. All prices are quoted ex works in euros (EUR), including original packaging but excluding shipping, insurance and packaging costs, as well as the VAT applicable at the time of delivery.
2. Our list prices or usual prices apply unless stated otherwise in the order confirmation.
3. For delivery periods or continuing obligations lasting longer than six weeks, we are entitled to pass on to the Customer any increase in procurement, delivery or personnel costs (wages, non-wage labour costs) arising in the meantime by raising the affected prices enough to offset the increased costs.
4. In the case of a contract for work under which we are the Party producing the work, if the Customer terminates said contract in accordance with Section 648 BGB before performance has started, we are entitled to 5 % of the agreed total remuneration. We are entitled to claim a higher, appropriate amount of remuneration.
5. If, after entering into the contract, we find any assumptions made in the offer and subsequently adopted in the contract to be inaccurate (see Section B(3)), the Customer is required to remunerate any additional work at the agreed rates or our usual rates if we do not submit a follow-up offer.
6. Any multi-use pallets used to deliver goods will be exchanged according to the following provisions. Upon delivery of palletised goods, the Customer must return an equal number of exchangeable pallets of the same type and quality, or deliver them to us carriage paid within one month. Exchangeability is determined by UIC leaflet 435-4 (International Union of Railways). According to the indented purpose, transferred pallets become the property of the recipient; they must be compensated with pallets of the same type and quality. If pallets are not returned on time, if they are not exchangeable, or if they are not of the same type and quality, we are entitled to invoice the Customer for the price of new pallets. The Customer is free to provide evidence supporting an “old-for-new” deduction or lower loss amount.
G) Terms of Payment
1. The Customer also consents to receiving electronic invoices. We may submit invoices through an intermediary or authorised representative. Unless otherwise agreed, invoices will be sent to the general address, fax number or e-mail address indicated by the Customer.
2. Payment is due in full immediately unless otherwise indicated in the order confirmation or these Terms and Conditions. If no payment due date is set, the applicable legal provisions will determine when payment is considered overdue.
3. Payments are considered on time if funds are available to us by the payment due date. Cheques or bills of exchange count towards payment—in the amount corresponding to the full value minus all expenses—only once they have been redeemed. We are not required to redeem cheques or bills of exchange by the payment due date.
4. We are entitled to apply the Customer’s payment to the oldest outstanding invoice even if the Customer has specified its appropriation.
H) Right of Set-off, Right of Retention, Assignment,
1. The Customer may set off only those claims which are undisputed or have been established with legal effect. Rights of retention may only be exercised by the Customer in the case of undisputed or legally established claims arising from the same legal relationship.
2. Entitlements against us may not be assigned unless Section 354a of the German Commercial Code (HGB) applies.
I) Delivery, Transfer of Risk
1. All deliveries are made ex-works. We assume no responsibility for the cheapest shipping method.
2. Except in cases where the location of performance and success is the recipient’s location, the risk of loss or damage is transferred to the Customer upon hand over of the goods to the commissioned delivery-person , even if we deliver the shipment ourselves and regardless of how transport costs have been agreed.
3. We will obtain transport insurance for the delivery at the Customer’s expense if requested prior to shipment.
J) Performance Default, Delivery Proviso, Performance Impediments, Delayed Acceptance
1. All dates and deadlines for the provision of services by us are only binding if described as such by us.
2. Even if a calendar date has been designated or an event has to precede the delivery of performance, and appropriate time has been arranged to accommodate this, we shall be in default only after receiving a reminder from the Customer.
3. We procure hardware and standard software from suppliers. Consequently, we may withdraw from the contract if, despite having placed orders with suppliers covering the exact extent of the Customer’s order, we receive deliveries late or deliveries are incorrect.
4. The delivery and performance periods are extended accordingly if any obstacles to performance arise for which we are not responsible. This applies in particular to defective or missing deliveries made to us (see Paragraph 1), force majeure, war, natural disasters, traffic disruptions, disrupted operations, obstructed imports, energy and raw material shortages, government action, labour conflicts and breach of cooperation obligations by the Customer. We are entitled to withdraw from the contract if the performance obstacle continues with no foreseeable end and the purpose of the contract is jeopardised. In the absence of a general withdrawal right, the Customer may withdraw from the outstanding part of the contract if the performance obstacle lasts longer than two months.
5. The delivery and performance periods are also extended while the Parties negotiate changes to delivery or performance, or while we draft a follow-up contract should assumptions made in our offer and adopted in the contract be found to be inaccurate.
6. Performance of our delivery obligation is subject to the timely and proper fulfilment of the Customer’s obligations.
7. If the Customer does not accept goods within the time stipulated, does not request services within the time stipulated or defaults on acceptance, we are entitled to dispose of the goods and the personnel and/or material resources as we see fit and set a new delivery period. We can claim 10% of the agreed price (excluding VAT) as compensation for damages due to default and 30% of the agreed price (excluding VAT) as compensation for damages due to non-fulfilment without providing any evidence, unless it can be demonstrated that actual damages were significantly less. We reserve the right to claim actual damages if these are higher.
K) Endagerment of claims
1. If, after entering into the contract, we find that the Customer may be unable to perform consideration, the Customer must provide security for its consideration if no advance performance has been stipulated. If our contractual obligation consists of producing a work, rendering a service without a work result or delivering products specifically procured for the Customer and difficult to sell otherwise (i.e. not commonly in demand), we may require the Customer, at our option, to pay in advance an amount equal to our procurement costs or 50% of the Customer’s consideration (with security provided for the remaining amount).
2. In addition, Section 321 BGB applies with the proviso that we may, even if other claims arising from the same legal relationship are jeopardised within the meaning of Section 273 BGB, refuse performance.
3. If payment by instalments has been agreed and if the Customer is wholly or partially in arrears with at least two consecutive instalments, the remaining receivable amount will become due in full. Any deferral agreements become invalid if the Customer defaults on performance or if the conditions of Section 321 BGB are met with respect to a receivable.
L) Retention of Title
1. We reserve the right to retain ownership of all objects delivered by us until all payments from the entire commercial relationship have been made. In derogation from Section 449(2) BGB, we are entitled to demand, without withdrawing from the contract, that objects be returned if the Customer fully or partially defaults on the purchase price.
2. The Customer is required to treat with care the purchased item or any objects wholly or jointly owned by us in accordance with this section. In particular, the Customer is required, at its own expense, to sufficiently insure such items for replacement cost against fire, water damage, theft and vandalism. Any required maintenance and inspections must be carried out by the Customer in a timely manner at the its own expense.
3. The Customer must notify us immediately in writing in the event of an attachment or other third-party intervention so that we can file a court action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the intervening third party is unable to reimburse the judicial and extrajudicial costs incurred for a court action filed in accordance with Section 771 ZPO, the Customer will be held liable for our loss.
4. The Customer is entitled to further process or resell delivered items within the ordinary course of its business. If goods subject to retention of title are further processed by the Customer, we (as the producer) benefit from this processing and gain ownership of the new object; if such processing involves materials from multiple owners or if the final product has a higher value than the goods subject to retention to title, we will gain joint ownership of the new object in proportion to the value of the goods subject to retention with respect to the new object. In the event that we should not gain such ownership, the Customer transfers future ownership (or joint ownership in the proportion described above) to us at the present time. If the object delivered is combined or inseparably mixed with other objects to form a uniform object, and if one of the other objects is to be considered as the main object, we will (insofar as we own the main object) grant the Customer joint ownership of the uniform object in the proportion described in Sentence 2. In the event of a resale, the Customer assigns to us, at the present time, all receivables in the amount of the final invoice sum, including VAT, owed to the Customer by its customer or a third party on account of the resale. The Customer is still authorised to collect the debt even after the assignment, provided the Customer has met the prerequisites for transferring payment to us and provided that none of the conditions pertaining to the endangerment of claims (Section 321 BGB) apply. Our right to collect payment ourselves remains unaffected. Upon request by us, the Customer must disclose the assignment and provide us with the documents and information required to claim the receivable.
5. Upon request by the Customer, we undertake to release security due to us upon request by the Customer insofar as its value exceeds the corresponding receivable by more than 20%. We reserve the right to choose which security to release.
M) Limitation of Liability
1. Recognition of limitations of liability
We are not liable for ordinary negligence by our governing and supervisory bodies, legal representatives, employees or other agents. These limitations of liability do not apply to:
1.1. Damages arising from injury to life, limb or health due to negligent breach of obligation or worse,
1.2. Other damages arising from grossly negligent (or worse) breach of obligation, or negligent breach (or worse) of material contractual obligations (obligations whose fulfilment is indispensable to the proper performance of the contract and on whose fulfilment the other contractual Party may rely as a matter of course),
1.3. Damages falling under the scope of protection regarding guarantees (within the meaning of Section 276(1) BGB) or guarantee (Section 443 BGB) provided by us.
2. Amount of limitations of liability
With the exception of the cases described in Sections M (1.1, 1.3 and 1.4) above, our liability for ordinary negligence or grossly negligent conduct by agents of ours who are neither legal representatives nor senior executives (ordinary agents) is limited to the damages typically expected at the time the contract is entered into and, in the case of compensation for futile expenses, to the amount of positive interest. In the event of data loss through ordinary negligence, we are liable only for the costs that would be required to recover data that was properly and regularly backed up by the Customer.
3. Liability arising from pre-contractual obligations and commercial contacts
Section M also applies to the Customer’s entitlement to damages with respect to obligations arising from the inception of contractual negotiations, initiation of contracts or similar commercial contacts. If a contract is concluded between the Customer and us, the Customer waives all entitlements outside the scope of liability described in Section M at the present time.
4. Tortious claims
Section M also applies to tortious claims made by the Customer.
5. Limitation of liability for the benefit of third parties
The liability exclusions and limitations described in Section M also apply to the personal liability of employees, representatives and agents.
6. Without prejudice to Section N(6), the Customer’s other entitlements to damages and compensation of futile expenses lapse after one (1) year. This does not apply to the entitlement to claim damages for injury to life, limb or health. Moreover, it does not apply to Customer’s entitlements under ProdHaftG or in the case of guarantees (Section 276(1) BGB) or guarantees (Section 443 BGB), nor to its entitlements to other damages arising from intentional or grossly negligent breach of obligation.
7. Indemnity against third-party claims
The Customer indemnifies us against all claims made by the Customer’s agents or other third parties deployed by the Customer that exceed the scope of liability described in Section M; this includes claims arising from pre-contractual obligations and commercial contacts.
N) Claims Arising from Defects (Material and Legal Defects)
1. Obligation to inspect and report. The Customer’s rights in cases of material defect are subject to its obligation to properly inspect goods and notify us of defects (Section 377 HGB).
2. Material defects in used items. When buying used goods, the rights of the Customer due to material defects are excluded. goodThis does not apply to any entitlement to damages or entitlements under a guarantee (guarantee, Section 276(1) BGB) or guarantee (Section 443 BGB) provided by us, or if we fraudulently concealed the defect (Section 444 BGB).
3. Cure. We are entitled to cure the defect at our option by repairing the defect or delivering a defect-free item (cure). If the cure is unsuccessful, the Customer may request a price reduction. Alternatively, as long as the defect does not involve building work, the Customer may choose to withdraw from the contract. Any obligation on our part to bear the cure’s costs, in particular costs relating to work, material, transport and the provision of transport routes, is excluded in all cases insofar as expenses increase because the item purchased was transported, after delivery, to a location other than the residence or business establishment of the recipient, unless such transport is required for the proper use of the item. The Customer’s right under Section 439(3)1 BGB to demand the expenses required to remove the defective item and install or affix the repaired or re-delivered item is limited to an amount equal to 150% of the item’s purchase price in defect-free condition or 200% of the price reduced due to the defect. The Customer’s right to damages and compensation for recourse expenses (Section 478(2) BGB) remains unaffected by the provision in this Paragraph.
4. Material defects of delivered hardware and software
a) In derogation to Paragraph 3 above, where third-party hardware or standard software is delivered or where third parties are hired to perform maintenance services, we may, for the purpose of repairing the defect or delivering a defect-free item, assign our corresponding entitlements against our suppliers, the manufacturer or other third parties to Customer. In this case, before the Customer can exercise its right to claim re-delivery by us, compensation for self-help expenses, damages in lieu of performance, contract withdrawal or a price reduction, it must first claim re-delivery, damages or compensation for self-help expenses from our supplier or the manufacturer, if necessary by judicial means, unless this is unreasonable for the Customer. If, in doing so, the Customer incurs costs for which it is not able to exact payment despite legal enforcement, we are required to compensate the Customer for them.
b) The above also applies if we have customised, configured or otherwise altered the software or hardware to meet Customer’s needs, unless the material defect was caused by our performance.
5. Tampering by the Customer. The Customer forfeits its entitlement with respect to defects if it tampers with goods, in particular with the program code, in any way that is not expressly authorised in the contract, operating manual or other user manuals, unless the Customer can explain and prove that the defect was not caused by its tampering.
6. Rights of recourse (Section 445a BGB)
The following are only valid when the end customer is an entrepreneur (Section 14 BGB): Customers only have a right of recourse if we are responsible for the defect (Section 276 BGB); if the Customer is held liable by a client for cures, they are only entitled to recourse if we have been given the opportunity to provide this cure. Customers only have a right of recourse if we had not been in a position to refuse cures. Only expenses incurred for successful cures are eligible for recourse. If the Customer’s client has taken back the item, or if the purchase price has been reduced, the Customer only has a right of recourse if the cure could not have averted the need for return or reduction.
7. Limitation of claims arising from defects unless this is excluded under the following terms:
Statutory provisions governing the limitation period will apply in cases of intentional or grossly negligent breach of obligation; fraudulent concealment of a defect; entitlements arising from injury to life, limb or health; entitlement under ProdHaftG or a guarantee (guarantee, Section 276(1) BGB) or guarantee (Section 443 BGB); or if we have fraudulently concealed the defect (Section 444 BGB). All of the Customer’s other material defect-related entitlements lapse after one (1) year. The same shall accordingly apply to
entitlements arising from legal defects with the following exceptions: without prejudice to sentence 1, entitlement lapses after five (5) years if the defect which gave rise to it consists of the fact that a third party has a real right to the purchased item and that, consequently, the return of this item may be demanded by virtue of this right.
Rights of recourse in the event that the end customer is an entrepreneur. In these cases, the suspension of the statute of limitations in accordance with Section 445b Para. 2 BGB is also excluded.
O) Customer Cooperation in the Event of Defects
1. In the event of a repair, the Customer must provide us with the information required to diagnose and resolve the fault(s), if necessary upon request. For repairs involving remote data transmission or telephone communication, the Customer must provide a trained, competent employee to help. For on-site cures, we must be given unobstructed access to the defective goods and, if necessary, other work on the Customer’s hardware or network must be suspended.
2. The Customer is required to provide a sufficiently detailed description of the hardware or software defect to reproduce the defect.
3. If the Customer claims its right to claim cure by us, and it is subsequently found that the claim is unsubstantiated (e.g. user error, improper handling of goods, absence of defect), the Customer is required to reimburse us for all costs incurred by the inspection of goods and re-delivery or repair, unless the Customer is not responsible for making the claim.
4. If a system outage is caused by us, we will recover the data using the latest data backup performed by the Customer before the outage. The Customer must provide the corresponding data in a machine-readable format.
5. The Customer must inform us immediately if a claim is made against the Customer for the violation of a third party’s rights, or if an injunction against further use of the delivered item has been issued against the Customer.
P) Partial Performance
2. If we receive only partial delivery or performance from a third-party hardware or standard-software manufacturer, the Customer’s interest remains unaffected if we provide a cure (through our own means) that is deemed reasonable to the Customer. Hotline services are considered an acceptable cure in cases involving documentation.
Q) Right of Return
The Customer does not have a contractual right to return goods unless we expressly grant the Customer such a right in writing. Such rights of return apply only to physical objects, in other words not to software delivered through intangible means (i.e. not on CD or DVD). In no case is the Customer entitled to demand a right of return. Goods returned without a right of return having been agreed in advance will be rejected without exception. Any right of return granted to the Customer by us applies only to goods that have already been paid for. Goods that were custom-made, configured, adapted or processed; promotional and clearance goods; goods that are clearly marked as discontinued or in the process of being discontinued; and goods that otherwise differ from the current series standard are categorically excluded from any right of return. The right to return goods expires no later than 2 weeks after goods have been received, and is effective only if returned goods are received by us before expiry of the return period.
1. Software must be unopened in its original packaging, including storage media and accompanying documentation.
2. Hardware, including accessories, documentation and the full, unaltered original packaging must be returned in new condition, without any damage.
The Customer is responsible for the cost and risk of returning goods. Acting in its own interest, the Customer must choose the most secure means of delivery and ensuring adequate insurance. Partial returns are subject to a separate agreement.
R) Hardware and Software Maintenance
Hardware and software maintenance requires a separate contract, subject to our supplementary terms and conditions for hardware and software maintenance (see: EGB).
S) Seller Employees Working on Customer Sites
1. The Customer must provide suitable facilities and equipment at its own expense for any services provided by our employees or agents, unless we have assumed responsibility for this.
2. The Customer must ensure, at its own expense and through appropriate organisational and physical means, that our employees or agents are not incorporated into the Customer’s business operations.
3. The Customer has no authority to direct our employees or agents. Within the scope of a service contract or a contract to produce a work, the Customer is authorised to give direction only to our legal representatives or individuals duly empowered for this purpose.
1. The following provisions apply to cases in which performance acceptance is contractually or statutorily mandated.
2. Upon our request, acceptance of partial performance will be carried out for performance components which can be delimited and used independently of one another, or performance components that serve as the foundation for further components, provided that such components can be inspected separately. The last partial acceptance is equivalent to the final acceptance.
3. If the performance requiring acceptance includes the delivery of hardware or standard software, we are entitled to invoice the Customer for such delivery regardless of the acceptance of the remaining performance.
We are required by law, and with respect to our suppliers, to comply with national and international export restrictions (in particular those stipulated by European Union and United States law) and to impose them on the Customer. The Customer is required to comply with these regulations as well. Upon request, we will provide the Customer with information regarding the goods and services subject to contractual submission agreements under US export law.
It is the Customer’s sole responsibility to ensure that export requirements are met. We are not obliged to deliver goods or provide services at locations where there are export restrictions. In this case, the Customer will, at our option, provide an alternate address or pick up goods at our location.
V) Suspension of Statute of Limitations during Negotiations
The time limits imposed on the Customer entitlements can only be suspended during negotiations if we have agreed in writing to enter into negotiations. The suspension will expire 3 months after the most recent written statement of consent.
W) Special provisions for temporary usage permission
1. If we agree to permit Customer usage of an item, e.g. hardware, software or storage capacity (cloud computing) temporarily, these Terms and Conditions will apply in accordance with the following provisions, which take precedence.
2. Unless otherwise agreed, remuneration for use is due monthly in advance; for incomplete months (at the beginning or the end of usage), remuneration will be prorated.
3. Strict liability for defects present upon conclusion of the contract is excluded unless the defect is related to a feature guaranteed by us (Section 276(1) BGB).
4. The Customer is not permitted to grant any third party permission to use the object, e.g. by sub-leasing it, nor may the Customer change the agreed location (or, if no location was agreed, the initial Customer location).
5. We are not required to provide maintenance during the term of the contract for the physical objects provided to the Customer or for software which the Customer uses on hardware in its direct possession. Such maintenance is the Customer’s responsibility. Prices are calculated based on this division of responsibilities. The Customer is free to request support or maintenance services (if applicable for a fee) from us or the manufacturer; we will assist, to the extent required, in obtaining any such services from the manufacturer. Any changes to the contractual item require our consent. In the case of hardware, this applies in particular to the installation of new hardware components or operating programs. Application software is installed at the Customer’s own risk and expense. In the case of software, any installation and use of updates requires our express consent and is done at the Customer’s own risk and expense. We are required to provide consent insofar as this is required to maintain the software. The Customer may not claim any reduction in usage fees. However, any entitlement to reimbursement of usage fees remains unaffected.
7. The Customer may only store or otherwise process content whose use does not violate German or any applicable foreign law; in particular, it cannot be subject to prosecution or fine, and it cannot violate data-protection legislation nor the property rights of third parties (e.g. copyrights, patents, trademarks or brand-related rights). If we provide cloud storage capacity and there is evidence that an aforementioned obligation has been violated or if a third party or public authority files a complaint (which is not clearly unfounded) with regard to content or usage-related actions, we are entitled to immediately block access temporarily until a legal assessment has been completed. Where possible, the Customer’s case should be heard prior to this.
8. The Customer is entitled to terminate for denial or withdrawal of contractual usage only once an appropriate grace period for replacement delivery has expired. No grace period is required if we have definitively and in earnest refused to provide replacement delivery, or if special circumstances exist which justify an immediate termination after weighing the interests of both Parties.
9. In the case of software for which the Customer has been granted usage permission, any and all full or partial copies of the software must be deleted after the contract has ended such that it is technologically impossible to restore them. The Customer must guarantee this in writing. We are entitled to verify this deletion at the Customer’s site at our own expense and upon giving prior notice; to do so, we are entitled to access all required equipment, such as the Customer’s computer and IT systems. The Customer must cooperate in this process to the extent required.
X) Data protection
We process personal data in accordance with statutory data protection requirements. In the case of commissioned data processing, our data protection regulations for commissioned data processing according to Para. 28 EU GDPR apply.
Y) Place of performance, choice of law, contract language, place of jurisdiction
1. In the case of contracts with merchant (Section 1 HGB), the place of performance for both Parties is the location of our company’s registered office.
2. These Terms and Conditions and all legal relationships between the Parties are subject to German substantive law. Insofar as terms and conditions of third-parties which are subject to foreign legislation apply between us and the Customer, this foreign law applies. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
3. The contract language is German.
4. If the Customer is a merchant, corporate body under public law or special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship the location of our company’s registered office; however, we are entitled to bring a case against the Customer in another place of jurisdiction. With respect to all other Customers, the location of our registered office is agreed as the place of jurisdiction for all disputes arising from the contractual relationship in the event that the Party against whom the case is being brought relocates its residence or usual address outside Germany after conclusion of the contract, or if this Party’s residence or usual address is unknown at the time the case is brought.
5. The invalidity of any provisions in these Terms and Conditions or any other provision agreed between the Parties does not affect the validity of the remaining provisions in these Terms and Conditions or any other agreement. For provisions in other agreements between the Parties, the Parties are required to replace invalid provisions with valid provisions that most closely resemble the invalid provisions.
As at: 01 December 2019