A. General section
1. These General Terms and Conditions (GTC) apply to all business relationships between us, Cristie Data GmbH, Nordring 53-55, 63843 Niedernberg, and our customers if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law. Without us having to refer to the GCT again in each individual case they also apply to future contracts the customer concludes with us.
2. Our GCT shall apply exclusively. Any deviating, conflicting or supplementary GCT of the customer shall not become part of the contract, even if we are aware of them, unless we expressly agree to their validity in writing. Our GCT shall also apply in cases where we perform the service for the customer without reservation in the knowledge of the customer’s conflicting or deviating GCT.
3. In the event of ambiguities and contradictions between individual contractual documents, the validity of which has been agreed between the customer and us, the more specific document shall be deemed to take precedence over the more general document, unless a different provision is made in the respective document. Therefore, the following chronological order of precedence with the first-mentioned documents shall apply: (1) our order confirmation; (2) confirmation of service rendered, (3) our quotation, (3) GCT of Cristie Data GmbH.
4. We are entitled to amend these terms and conditions by written notice to the customer. Such amendments shall come into force 45 days after notification, unless the customer objects. If the customer objects, either contracting party shall be entitled to terminate the contract within a period of 3 months.
II. Conclusion of Contract, Quotation Documents; Scope of Services
1. Our quotations are non-obligatory unless otherwise stated in the latter. This also applies in cases where we have provided the customer with catalogues, technical documentation (e.g., drawings, plans, accountings, calculations, references to DIN), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights. Prior to passing them on to third parties, the customer requires our explicit consent. We reserve the right to make technical changes and other changes within reasonable scope.
2. The client’s order shall be deemed to be a binding offer of contract which we may accept within three weeks.
3. The acceptance of the contractual offer shall be effected by order confirmation on our part, signing of the confirmation of service rendered or signing of a contract by both parties, at the latest, however, by delivery of our service.
4. The details of the scope of services shall in each case be derived from our order confirmation, the confirmation of service rendered, our quotation or the contract signed by both parties, depending on how the contract is concluded with the customer (hereinafter all referred to as “contract documents”).
5. The conclusion of the contract is with reservations to correct and timely delivery by our suppliers. This shall only apply if we have concluded a congruent covering transaction with our supplier and are not supplied through no fault of our own. We shall inform the customer immediately of the non-availability of the service. We will immediately refund any consideration already received.
III. Territory of Service and Forwarding, Delivery and Period of Delivery, Default in Acceptance on Part of the Customer
1. We provide our services or respectively transmit / send them worldwide.
2. Delivery or service dates or deadlines are only binding where we have given a written guarantee that they will be met.
3. Compliance with our delivery and performance obligations and deadlines shall be subject to the timely and proper fulfilment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
4. Delivery or service performance dates stated by us shall be calculated from the time of conclusion of the contract. If we do not specify a delivery time or any deviating delivery time to the customer for a standard product to be delivered, it shall be approximately three weeks.
5. If we are unable to meet binding delivery or service dates or deadlines for reasons, which we are not responsible (non-availability of the service) for, we shall attempt to inform the customer of this without delay and at the same time inform him of the expected new delivery or service deadline. If the service is also not available within the new delivery or service period, we shall be entitled to withdraw from the contract in full or in part; we shall immediately refund any consideration already paid by the customer.
6. In case of default on our part, determined as per statutory provisions, a written demand note shall be required in any event.
7. We shall be entitled to render service in parts, provided this is not unreasonable for the customer.
8. If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred to us in this respect, including any additional expenses. Further claims shall remain reserved.
IV. Prices and Terms of Payment
1. Unless otherwise agreed, our prices are net prices plus the respective statutory value added tax and “ex works”, including packaging and excluding delivery fees, unless explicitly agreed otherwise.
2. Services not included in the scope of services which are additionally performed by us at the customer’s request or additional expenses which are caused by incorrect information provided by the customer, by transport delays for which we are not responsible or by the failure of third parties to perform in a timely or professional manner, insofar as they are not our agents, shall be additionally charged to the customer. Upon request we shall inform the customer of the respective costs in advance and free of charge.
3. The deduction of a discount requires a special written agreement. Invoice amounts are due without deduction within 14 days of the invoice date. After expiry of this period, the customer shall be in default of payment – even without a separate reminder. During the period of default or in the event of deferral, the customer shall pay interest on the debt at a rate of 9 percentage points above the base interest rate applicable at the time. We reserve the right to assert further damage caused by default.
4. In the event of late payment, we shall charge a flat-rate processing fee of 5,00 € for reminders. This does not apply to the first reminder.
5. The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established, is undisputed or is mature for adjudication. Counterclaims entitling the customer to the right to withhold within the meaning of § 320 of the German Civil Code (BGB) are also excluded from the restraint. The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
6. If the customer is in default of payment, any outstanding deliveries and other contractual services shall only be implemented by us upon advance payment.
7. If we have agreed on partial payments or instalments with the customer and the customer is in arrears with more than two partial payments or instalments, the entire remaining debt of the customer shall become due for payment immediately, unless the customer proves not being responsible for the arrears.
V. Price Increases
1. We are entitled to adjust the prices to be paid on the basis of the contract concluded between us and the customer at our reasonable discretion to the development of their production costs, which are decisive for the price calculation. The relevant points in time for the calculation of the change in the production costs are the point in time of our quotation on which the contract is based or the respective last point in time of a price adjustment and the point in time of the actual purchase of the individual cost elements for the fulfilment of the contract. A price increase shall be considered and a price reduction shall be made if the essential price-setting factors, e.g., the costs for the deployment of the required personnel, the costs for the procurement of the required hardware, or if the costs for the required energy increase or decrease. Increases in one type of cost, e.g., electricity procurement costs, may only be used for a price increase to the extent that they are not offset by possible decreases in other areas, e.g., personnel costs. In the event of cost reductions, e.g., in electricity procurement costs, we shall reduce the prices to the extent that these cost reductions are not fully or partially offset by increases in other areas. When exercising our reasonable discretion, we shall choose the respective points in time of a price change in such a way that cost reductions are not taken into account according to standards that are less favourable for the customer than cost increases, i.e., that cost reductions have at least the same effect on prices as cost increases. Upon request, we shall provide the customer with the price calculation on which the contract was based at the time of the conclusion of the contract with the emphasis of the respective production costs which are also used as a basis for the calculation of a price adjustment.
2. A price change on the basis of the above agreement can only be based on a change in production costs. The increase of the profit calculated by us due to a price increase is excluded.
3. In the event of a price change, the customer shall be entitled to demand evidence from us of the change in its production costs. We shall then present our production costs to the customer, e.g., by means of supplier confirmations or invoices relating to the relevant points in time.
4. We shall notify the customer of price changes without delay after we have become aware of a change in costs which is significant for the customer.
5. In the event of a price increase of more than 5% compared to the previous total price, the customer has the right to terminate the current contract. The termination must be received by us no later than 10 days after notification of the price amendment.
VI. Place of Fulfilment, Default of Acceptance by the Customer
1. Place of fulfilment for all obligations of the business relations between us and the customer is Niedernberg, unless otherwise agreed. If we are liable for installation and assembly, the place of fulfilment shall be the installation or assembly site.
2. If the customer is in default of acceptance, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time he is in default of acceptance. In the event of a required acceptance, the risk shall pass to the customer upon expiry of a reasonable period of time after receipt of the notification of completion.
VII. Transport and Packaging
1. Should our services be transported to the customer, they shall always be transported at the customer’s expense, unless otherwise agreed. In the absence of special instructions from the customer, we shall determine the dispatch at our due discretion. Where this is the case, we do not owe the commissioning of special packaging for the delivery or the commissioning of the cheapest and fastest shipping service provider.
2. We are entitled, but not obliged, to take out transport insurance after consultation with the customer, whereby the costs for insurance shall be borne by the latter.
3. Transport damage must be reported to us immediately (e-mail is sufficient). Any claims to which we are entitled versus the transport company shall be transferred to the customer at the customer’s request if the customer bears the risk of the transport.
VIII. Customer Duties, Cooperation, Indemnity
1. The customer shall – in addition to the cooperation explicitly stipulated in these GCT – always cooperate to a reasonable extent in the implementation of the concluded contract and support us in the performance of our services at his own expense.
2. The customer is obliged to provide all information required enabling us to provide our services, as far as this is not unreasonable for the customer. The customer must also inform us of any change that could affect us in the provision of our services. In particular, the customer shall notify us of errors and defects in their IT environment or the software used by them.
3. Where we provide the customer with essential information for accessing our services, in particular access data consisting of a customer ID and password, the customer undertakes to manage all access data with the usual care, in particular to secure the latter and to regularly change it. If the customer becomes aware of an unauthorised third party having obtained knowledge of a password, the customer shall inform us promptly and change the password immediately. Passwords may only be stored in encrypted form on PCs, USB sticks or other media suitable for permanent electronic storage
4. The customer is solely responsible for and not entitled to use our services in the following manner:
- in a manner prohibited by laws, regulations, directives or official orders
or ordinances, in particular in breach of data protection provisions,
copyright provisions and other regulations on freedom of information and
other regulations, such as rules under commercial law and accounting
- in a manner infringing the right of third parties;
- in a manner attempting to access or interfere with any services, devices,
data, account or network without authorisation;
- in a manner to spread spam or malware; or
- in a way that impairs or could impair the granting of use of SaaS, PaaS
or IaaS services by us to the customer or to third parties. This applies in
particular to the provision, publication or use of the content stored in our
5. Before sending data and information to us, the customer shall check them for viruses and use state-of-the-art antivirus programs.
6. Unless otherwise agreed, the customer shall remain solely responsible for maintaining the security of their IT environment, their working environment as well as their network and the applications used by them. In this case, we are not responsible for the customer’s IT system or hardware and software. This does not apply to the customer’s hardware that we have integrated into our data centre and manage as part of our services.
7. The customer bears the exclusive responsibility for the activation, configuration and management of their back-ups and the replications of the backups. The customer shall regularly check the status of their back-ups and replications and carry out regular recovery tests on their own responsibility. This does not apply where we owe the management of the backups within the scope of our agreed services.
8. The customer is obliged to create backup copies of his data and programmes before using our services.
9. Furthermore, the customer is under obligation to grant us or our proxies access to their buildings, their IT environment and the software operated by the customer, insofar as this is necessary for the rendering of our services or for the rectification of deficiencies.
10. With regard to the fulfilment of orders in accordance with the information or documents provided by the customer, the customer shall guarantee that the production and delivery of the services carried out in accordance with the customer’s information and documents do not infringe the property rights of third parties. We are not obliged to check whether the information or documents handed over by the customer for the performance of the service infringe or could infringe the property rights of third parties. The customer is obliged to indemnify us from all possible claims, lawsuits, their effects, losses or damages (e.g., for reimbursement of the costs of a warning letter) arising from the infringement of third-party property rights by the customer’s information or documents upon our first demand. We are entitled to take our own appropriate measures to defend ourselves against third party claims or to pursue our rights. The indemnification also includes the reimbursement of costs which we have incurred or will incur as a result of the legal prosecution/defence. However, we undertake to coordinate with the customer on our course of action. We shall inform the customer without delay of any such claim by third parties.
11. We are not obliged to check whether the information or documents handed over by the customer for the performance of the service infringe or could infringe the property rights of third parties. The customer is obliged to indemnify us on first demand against all possible claims, lawsuits, their effects, losses or damages (e.g., for reimbursement of the costs of an adhortatory letter) arising from the infringement of third-party property rights by the customer’s information or documents. We are entitled to take our own appropriate measures to defend ourselves against claims of third parties or to pursue our rights. The indemnification also includes the reimbursement of costs which we have incurred or will incur as a result of the legal prosecution/defence. However, we undertake to coordinate with the customer on our course of action. We shall inform the customer without delay of any such claim by third parties.
12. If we take the view that the customer does not or does not properly perform a cooperation or customer obligations incumbent upon him, we shall inform the customer thereof by setting a deadline. If the necessary cooperation or customer obligation is not fulfilled even after expiry of the grace period, we shall be released from our obligation to deliver the relevant service and to comply with any service levels in this respect, to the exclusion of any further legal consequences. In this case, the customer remains obliged to pay the remuneration.
13. The services to be provided by the customer represent real obligations and not merely simple duties. If and to the extent that the customer does not perform the services owed by him, does not perform them on time or does not perform them as agreed and this has an impact on our rendering of services, we shall be released from rendering the services concerned. The corresponding service deadlines shall be postponed by a reasonable period of time plus a reasonable ramp-up phase. Without prejudice to further rights, we shall be separately remunerated for additional expenses incurred and proven on the basis of the agreed conditions.
Without prior consultation with the customer, we are entitled to use subcontractors at our own expense. Using a subcontractor does not release us from our contractual obligations.
X. Open-Source Software
Within the scope of our service provision, we are entitled to use or supply opensource software or components. However, the use of open-source software that is subject to so-called copyleft licence conditions (for example the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL) or the Mozilla Public License (MPL)) requires a prior separate agreement between the parties.
XI. Confidentiality and Non-Disclosure
1. Subject to the following provisions, all information, facts, documents, data and/or knowledge, in particular technical and/or economic information, design documents, specifications, drawings, samples, prototypes, test results, source codes, object codes as well as data of customers of ours and/or secret know-how and our corporate secrets, i.e. identifiable knowledge which is only accessible to a limited group of persons, are confidential, e.g. in the form of non-publicly known information about manufacturing processes or audit results as well as all information, facts, documents, data, knowledge, know-how and/or trade secrets of and/or about our business partner(s) (e.g. customers, clients, suppliers, service providers, cooperation partners, trading partners, research and development partners) which the customer receives from us in the course of the cooperation, whether in writing, in text form, electronically, verbally, visually or in any other form. Confidential information also includes all copies made thereof, own prepared materials and summaries.
2. The confidential information may be used by the client exclusively for the implementation of the cooperation with us.
3. The customer undertakes to protect all disclosed confidential information from access by third parties and to store it with at least the care with which they handle their own confidential information, but at least with the care that is customary in such cases. The Confidential Information shall not be disclosed to any third party unless expressly permitted under this agreement. The confidential information may only be disclosed to third parties with our prior consent in text form. Insofar as disclosure to such third parties is required, we may not unreasonably withhold consent.
4. Disclosure shall be permitted, irrespective of our consent, to the extent that the customer is required to do so pursuant to a governmental or judicial order or mandatory legal requirement, provided that, wherever practicable and lawful, the customer notifies us promptly and prior to such disclosure to allow us to exercise our rights and/or take action to challenge the validity of any such requirement and the customer does what he reasonably can to ensure the confidential information is being kept confidential.
5. Any disclosure of confidential information to the customer by the companies affiliated with us pursuant to §§ 15 ff. AktG (German Companies Act) shall be deemed to be a disclosure by us to the client.
6. Prior to the disclosure of Confidential Information by the customer to third parties, such third parties shall be bound to secrecy to the same extent as the customer is bound to secrecy by this contract. For the disclosure to employees, the customer shall ensure that the confidential information received is only made accessible to those employees of the customer whose involvement is necessary for the implementation of the project. The aforementioned employees shall also be obliged to maintain secrecy to the extent permitted by labour law, unless a fundamental obligation to maintain secrecy has already been ensued within the scope of the employment relationship.
7. A confidentiality obligation does not exist with regard to information, which
- was already apparent at the time of their disclosure or have become
apparent after their disclosure without breach of this contract;
- were already known to the client at the time of their disclosure;
- have been lawfully made available to the customer by a third party after
their disclosure, without any restriction as to confidentiality or use, or
- have been developed by the customer independently and without
recourse, either directly or indirectly, to confidential information or in
accordance with the exceptions regulated in this subpar.
8. The customer is obliged, at our request (at least in text form), to return or destroy all confidential information received to which no rights have been transferred. However, the customer shall be entitled to retain confidential information or copies thereof,
- insofar as the law applicable to him/her compulsorily requires retention in
order to comply with legal obligations; or
- provided that back-up copies of electronically exchanged confidential
information are routinely made.
However, if no longer periods are specified by law, the confidential information may be retained for a maximum of ten (10) years from the termination of the contract. No right to disclose or pass on arises from the above retention right.
9. Any breach of confidentiality by employees and/or by a third party to whom the customer has disclosed confidential information shall be deemed to be a breach of confidentiality obligations by the customer.
10. The customer’s confidentiality obligations shall continue for 3 years after the termination of cooperation
XII. Principles of Liability for Defects
1. Information in our descriptions of the goods and/or services valid at the time of conclusion of the contract concerning performance, dimensions, weights, restrictions on use and maintenance requirements shall form part of the contract. They are to be regarded as approximate and serve as a benchmark for determining whether the goods and/or services are defective in accordance with the following provisions. We accept no liability for public statements made by third parties, e.g., advertising statements.
2. We reserve the right to deliver the purchased good with technically modified components insofar as these are of equivalent quality and performance and if there is no agreement on quality between us and the customer with regard to the replaced component. This also applies if the components do not correspond exactly to the specifications as termed prior to or in the contract.
3. Claims for defects shall neither exist in the case of natural wear and tear, nor in the case of damage occurring after the transfer of risk as a result of incorrect or negligent handling, the use of unsuitable operating materials, chemical, electrochemical or electrical influences (insofar as we are not responsible for such influences), unsuitable and/or improper use, excessive stress, defective construction work, faulty assembly by the customer or third parties, unsuitable building ground or due to special external influences which are not assumed under the contract. Where improper repair work or modifications are carried out by the customer or third parties, there shall also be no claims for defects for these and the consequences arising therefrom.
4. Claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with the provision in section A, XIII of these GCT and are otherwise excluded.
5. A warranty or assurance in the sense of an accentuation of liability or from the assumption of a special obligation to guarantee shall only be deemed to have been given if the terms “warranty” or “assurance” are expressly stated by us.
XIII. Other Liabilities
1. We shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions, unless otherwise provided in these GCT, including the following provisions.
2. We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of plain negligence, we shall only be liable in accordance with statutory provisions, subject to a milder standard of liability
- for damages arising from injury to life, limb or health,
- for damages arising from the not inconsiderable breach of a crucial
contractual obligation (obligation the fulfilment of which is a prerequisite
for the proper implementation of the contract and the compliance to the
latter of which the contractual partner regularly relies on and may rely
on); in this case, however, our liability is limited to compensation for the
foreseeable, typically occurring damage. Indirect damage and
consequential damage, such as loss of profit, are also only eligible for
compensation insofar as such damage is typically to be expected when
the goods and/or services are used as intended, in particular if they are
the result of defects in the goods and/or services.
3. The limitations of liability resulting from section A XIII 2 of these GCT shall also apply where the customer demands compensation for futile expenses instead of a claim for damages in lieu of service.
4. The limitations of liability resulting from section A XIII 2 and A XIII 3 of these GCT shall also apply in the event of breaches of duty by and for the benefit of persons for whose fault we are responsible according to statutory provisions, such as our employees, workers, representatives, bodies and agents. They shall not apply in case where we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods or services, for claims of the customer under the Product Liability Act as well as for liability for claims based on defects of the goods and/or services.
5. To the extent that we provide general technical information, advice or recommendations without being contractually obliged to do so, we shall – without prejudice to any liability arising from a separate contractual relationship, illicit act or other legal provision – not be obliged to compensate for any damage resulting from observing the advice or recommendation.
6. The customer may only withdraw from or terminate the contract due to a violation of duty which does not consist of a defect, if we are responsible for the violation of duty.
XIV. Force Majeure
1. In the event of force majeure or other events beyond the control of the respective party, such as natural disasters, disruptions in the supply of energy and raw materials, acts of government, industrial disputes, riots, armed or terrorist conflicts, epidemics, pandemics, entailing unforeseeable consequences for the performance of services, the respective party affected shall be released from its service obligations for the duration of the disruption and to the extent of its effect. An automatic termination of the contract is not associated with this. The parties are obliged to notify each other immediately in writing of such an event as well as of the cessation of the event and to adjust their obligations to the changed circumstances in good faith and trust.
2. The party concerned shall make all reasonable efforts to remedy the effects of the event or to limit the effects as far as possible. For the period in which one party is unable to fulfil its contractual service obligation, the other party shall be exempt from their service obligation in return.
3. If the proper accomplishment of the contractual relationship is impossible for one of the parties due to such events or if one of the parties is no longer able to properly fulfil the contractual relationship due to such events and if this is not only of a temporary nature, the respective other party shall be entitled to terminate the contract and withdraw from the contract. The parties agree that a hindrance to performance/service delivery as described above is not only of temporary duration if the hinderance continues for more than 3 months.
4. The parties agree that it shall also be considered a case of force majeure within the meaning of this agreement if a supplier of a party is affected by an event of force majeure within the meaning of this agreement.
XV. Retention of Title
1. We shall retain title to our goods and/or services (hereinafter referred to as “reserved goods”) until all our current and future claims arising from an ongoing business relationship (secured claim) have been paid in full. The retention of title extends to the full value of the products resulting from processing, mixing or combining the goods subject to retention of title, whereby we are regarded as the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their title remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods and/or services delivered under retention of title.
2. The customer is obliged to treat the goods subject to retention of title with care; in particular, he is obliged to sufficiently insure them at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is necessary, the customer must undertake this in good time at their own expense.
3. The customer is entitled to resell the goods subject to retention of title in the ordinary course of business; however, he now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims which accrue to him from the resale against his customers or third parties. We accept the conveyance. The customer shall remain authorised to collect this claim even after the conveyance. Our authorisation to collect the claim ourselves remains unaffected thereof. However, we undertake not to collect the claim as long as the customer meets his payment obligations towards us from the proceeds collected from him, he is not in default of payment and, in particular, if no application for the opening of conciliation or insolvency proceedings has been filed or cessation of payments exists. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors or third parties of the assignment.
4. We shall release the goods subject to retention of title and the items or claims replacing the latter insofar as their value exceeds the amount of the secured claims by more than 10%. The selection of the items to be released thereafter shall be at our discretion.
5. In the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back the goods subject to retention of title and the customer shall be obliged to surrender these goods. Our retraction of the goods subject to retention of title does not constitute a withdrawal from the contract. After taking back the goods subject to retention of title, we shall be entitled to utilise them. The proceeds of the realisation shall be credited against the customer’s liabilities – net of reasonable utilisation costs.
6. Pledges or transfers by way of the securiing of the goods subject to retention of title are inadmissible. The customer must inform us immediately in writing in the event of seizures or other interventions by third parties in or on the goods subject to retention of title.
XVI. Auditing Rights
1. If a volume-based or user-based remuneration or service has been agreed with the customer, the parties agree that a monthly verification of the data volume used or the user accesses shall be carried out. These reviews also serve invoicing purposes.
2. If the contractually agreed volume of the customer is used up or if more users than agreed have accessed our services, the customer may use additional volume or subsequently license additional user accesses. In the event that the agreed volume or the agreed accesses are exceeded, we shall be entitled to charge the customer for the additionally used volume or the additional user accesses on a pro rata basis in accordance with the agreed remuneration or in accordance with a separate quotation.
3. We and/or regulatory authorities shall have the right to access the Customer’s premises, data centre and IT environment during the Customer’s normal business hours to verify the Customer’s compliance with the requirements of these GCT and the Agreement and applicable laws. The Client will co-operate and cooperate with us in such inspections and audits. The inspections and audits will be conducted in such way as not to interfere with the Client’s business more than necessary and shall not be of excessive duration. We will give the client prior notice of a possible audit with at least five working days’ notice. This notice period does not apply in case the audit is carried out by a regulatory authority. At the client’s request and expense, the audit may also be carried out by us through an expert bound to secrecy towards third parties. Each party shall bear their own costs for the performance of an audit. In the event that after the audit it turns out the client has not paid the contractual remuneration to us, the client shall reimburse us for the costs of the audit and pay the contractual remuneration without delay.
XVII. Data Protection
1. The parties undertake to comply with the provisions of data protection law applicable to them.
2. Where we process personal data of the customer, we do so exclusively as an agent of the customer and thus in commissioned processing. The agreement on commissioned processing shall be concluded separately.
Within the framework of the legal requirements (§ 7 UWG) = German section 7 UC (Protection against Unfair Competition Act), it may also be possible for us to use the customer’s contact details provided in the context of the order to send the customer advertising by e-mail, fax or post, even without explicit consent, if the customer has ordered goods or services from us, we have received the e-mail address in this context and the customer has not objected to receiving information by e-mail. The advertising content is limited to goods or services similar to those already ordered by the customer.
1. We are entitled to name the customer as a reference customer after consent. The customer shall not refuse consent without good cause. We are entitled to name the customer in particular in publications on the internet, print media and in presentations.
2. The customer shall release advertising material such as brand logos, etc. to us for this purpose and undertakes to grant us all necessary rights of use in this respect.
3. The customer has the right to revoke the granted rights of use in writing at any time with effect for the future where there is solid ground. Print media already created at this time may be used further by us.
XX. Applicable Law, Jurisdiction, Miscellaneous
1. These GCT and the entire legal relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods (CISG). The prerequisites and effects of the reservation of title pursuant to section A, XV of these GCT are subject to the law of the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective thereafter.
2. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship shall be our place of business. We are, however, also entitled to bring an action at the general place of jurisdiction of the customer.
3. The customer undertakes to impose the obligations arising from these terms and conditions and the contractual documents on any legal successors and/or universal successors
4. A written contract or our written confirmation shall be authoritative for the content of ancillary agreements, amendments and supplements, also with regard to this clause.
5. In the event of the invalidity of one or more provisions in these GCT, the remaining provisions shall remain in force.
B. Special Conditions for the Sale of Goods, in Particular Hardware and Standard Software
1. Where we owe the sale, i.e., the permanent transfer of standard goods and/or services for a fee, additionally the following provisions of this section shall apply.
II. Passing of Risk
The risk of accidental loss and accidental deterioration shall pass to our customer as soon as the goods have been handed over to the agent carrying out the transport. This also applies to partial deliveries for the respective partial delivery. If the shipment is delayed at the request of the customer, the risk shall pass with the notification of readiness for shipment.
III. Rights of Use of Standard Software
1. If and when we owe the permanent provision of standard software, the customer shall be granted the simple, non-exclusive, non-sublicensable, transferable right, unlimited in time, limited in content to the scope of the contract and limited in location to the territory of the member states of the European Union (EU), to use the software in his business for his own purposes. Prerequisite for this is the customer’s fulfilment of all his obligations under the contract, in particular his payment obligations. The customer does not acquire any further rights to the software. All exclusive and further rights shall remain entirely with us and/or the third-party providers, unless they have been explicitly granted to the customer.
2. If it is evident from any of the services and descriptions offered by us, or if it is apparent from the service certificate or documentation from us or from the customer, that our services contain a product from a third-party provider and/or source code or a module that originates from us or from a third-party provider, the customer must observe the relevant terms and conditions on licensing and use and breach of contract in respect of such products, source code or modules. We shall send the relevant terms and conditions to be observed by the customer to the customer free of charge at the customer’s request. In the case of software products, the corresponding terms and conditions shall be presented to the customer in the course of the initial installation of the software. The customer then has the option to save the conditions. If the customer accepts the terms and conditions, a direct contract of use is concluded between the customer and the third-party provider.
3. The customer has neither a right to inspect the source code nor a right to be provided with the source code of standard software.
IV. Liability for Defects in Purchased Services
1. The statutory provisions of sections 433 et seq. of the German Civil Code (BGB) shall apply to the customer’s rights in respect of material defects and defects of title in the context of the sale of goods and/or services unless otherwise stipulated in these GCT.
2. Our liability for defects is excluded for used goods. This does not apply where we have fraudulently concealed the defect or have given a guarantee for the quality of the goods, nor to claims for defects based on the fact that we have breached our obligations through gross negligence or wilful misconduct, nor to claims for damages by the customer in the event of injury to life, limb or health or in the event of a breach of essential contractual obligations by us.
3. The customer shall immediately inspect the delivered goods for defects and notify us of obvious defects within a period of 7 working days from delivery, hidden defects within 7 working days from knowledge, at least in text form; otherwise, the assertion of warranty claims with regard to the defect not notified in time or not properly notified shall be excluded (§§ 377, 381 HGB = German Commercial Code). The goods shall then be deemed to have been approved.
4. If there is a defect, we are entitled, at our discretion, to remedy the defect or to deliver a defect-free item. If supplementary performance is impossible or disproportionate, we are entitled to refuse it. In this case, an appropriate reduction amount shall be agreed or the customer may – if the defect or violation of duty is significant – withdraw from the contract in accordance with the statutory provisions. We are entitled to make the subsequent performance owed dependent on the customer paying the remuneration due. The customer shall however, be entitled to retain an appropriate part of the remuneration proportional to the defect.
5. In the event of supplementary performance, we shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs (cf. sections 439 (2) and (3) of the German Civil Code (BGB)), if there is actually a defect and insofar as these are not increased by the fact that the goods have been taken to a place other than the place of fulfilment unless the transfer corresponds to the intended use of the goods.
6. From the customer we can demand for costs incurred resulting from unjustified demand for removal of defects (in particular appraisal and transport costs), unless the absent deficiency was not identifiable for the customer.
7. The customer’s rights due to defects shall expire by limitation one year after the statutory commencement of the limitation period. This period does not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty on our part or on the part of our agents, nor to cases of entrepreneurial recourse (§§ 478, 479 BGB) (German Civil Code), to our liability for fraudulent intent, for guaranteed characteristics or for claims by the customer under the Product Liability Act (ProdHaftG); these claims are subject to the statute of limitations in accordance with the statutory provisions.
8. If the goods are used for a building in accordance with their customary use and cause the building to be defective (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall remain unaffected.
C. Special Terms and Conditions for Contractual Rental Services, in particular SaaS Services
Where we owe the leasing, i.e., the temporary provision of goods and/or services for a fee (e.g., by way of Software as a Service (SaaS), Platform as a Service (PaaS) or Infrastructure as a Service (IaaS)), additionally the following provisions of this section shall apply.
II. Scope if Service
1. Within the framework of rental contract services, we can in particular provide the following services to the customer:
- Infrastructure as a Service (IaaS) services, i.e., the temporary provision
of data centre infrastructure via the internet;
- Platform as a Service (PaaS) services, i.e., the temporary provision of a
development environment as well as tools for the development of new
applications on our data centre infrastructure via the internet;
- Software as a Service (SaaS) services, i.e., the temporary provision of
software on our data centre infrastructure via an internet connection;
2. Depending on the agreement the contractual rental services shall be rendered:
- via an apt multi-client server;
- in form of „Dedicated Service“ via a server specifically used by the client;
- via a server used specifically by the customer, which is equipped with
additional physical security barriers; or
- via hardware provided by the customer, which is integrated into our data
Unless explicitly agreed with the client, no ownership rights, in particular with regard to the data centre infrastructure, are transferred to the client.
3. Our IaaS, PaaS and SaaS services are provided over the Internet for use via remote data access. The customer’s access to the internet is not the subject of our services. The customer bears sole responsibility for the establishment, functionality and bandwidth of his Internet access, including the transmission paths, as well as his own IT environment required for access to our services. The exact requirements can be enquired from us.
III. Usage Rights on Standard Software
1. Insofar as SaaS or PaaS services are owed, the customer shall be granted the simple, non-exclusive, non-sublicensable, non-transferable right, limited in terms of time and content to the term of the contract and the scope of the contract and locally to the territory of the member states of the European Union (EU), to use the software or platform in his business for his own purposes. The prerequisite for this is that the customer fulfils all his obligations under the contract, in particular his payment obligations. The customer does not acquire any further rights to the software or platform. All exclusive and further rights shall remain entirely with us and/or the third-party providers unless they have been explicitly granted to the customer.
2. In case it is obvious from any of the services and descriptions offered by us, or it is evident from the confirmation of service rendered or any documentation provided by us or by the customer, that our services contain a product of a thirdparty provider and/or a source code or a module originating from us or a third-party provider, the customer shall observe the relevant terms and conditions on licensing and use and breach of contract with regard to such products, source codes or modules. Upon the customer’s request, we will send him the respective terms and conditions to be observed free of charge. In the case of software products, the customer shall be notified of the relevant terms and conditions in the course of the initial installation of the software. The customer then has the option to save the conditions. Upon acceptance of the terms and conditions, a direct contract of use shall be concluded between the customer and the third-party provider.
3. We are responsible for ensuring that we have the necessary rights and licences to provide software to our customer as part of SaaS or PaaS services. If the contractual partners have agreed that the customer must provide a right of use or a licence for another software or functionality, the customer is solely responsible for ensuring that it has a corresponding licence. The customer is further exclusively responsible for and warrants to us the right to use any such software or functionality provided by the customer for contractual purposes and for the provision of our services.
4. The customer has neither a right to inspect the source code nor a right to be provided with the source code.
IV. Customer Obligations
1. The customer undertakes to check his contents stored on our servers for harmful components using appropriate means (e.g., virus scanner and Trojan protection) before they are saved. For this purpose, he shall use means corresponding to the respective current state of technology.
2. The customer undertakes to use our services exclusively for the intended purpose and only for internal business processes. He is not entitled to make the services made available to him available for use by third parties, either in return for payment or free of charge. The customer is responsible for all his employees or other persons who use our services in his scope of business.
3. The Client undertakes to establish and maintain the remote data connection necessary for the use of the SaaS, PaaS and/or IaaS services. The configuration of the customer’s IT environment required for the use of the SaaS, PaaS and/or IaaS services is the responsibility of the customer, unless otherwise agreed between the parties.
4. The customer is obliged to notify us immediately of any defects in our rental contract services.
5. The customer is responsible for using only hardware and software that has either been recommended or approved by us.
6. The customer remains solely responsible for maintaining the security of their IT environment, their working environment as well as their network and the applications used by them.
7. Unless otherwise agreed, the customer shall install the contractual software and/or platform required for the use of the services within the agreed time after the conclusion of this agreement.
V. Our Rights and Obligations
1. We are entitled to interrupt our service provision in order to carry out maintenance and repair work on our data centre infrastructure. The maintenance and repair shall be carried out by remote access as far as possible. Repairs will primarily be carried out by remote diagnosis and remote maintenance measures. Where possible, we will use maintenance time windows outside normal business hours and inform the customer of planned maintenance windows in good time. Within normal business hours, maintenance time windows will only be set up taking into account the interests of the customer and if there is an important reason. The exact availability of our services results from the contractual documents.
2. We are entitled to temporarily interrupt the connection of our services to the internet (blocking of the systems) if there is sufficient suspicion of illegal use by the customer, in particular as a result of a warning from an alleged infringer – unless this is obviously unfounded – or as a result of investigations by state authorities. The blocking shall be limited, as far as possible, to the allegedly infringing content or action. The customer shall be notified immediately of the blocking, stating the reasons, and be requested to refrain from/remove the allegedly unlawful use or to substantiate and, if necessary, prove the lawfulness thereof. The blocking shall be lifted as soon as the suspicion is invalidated.
3. We are entitled to block access to our services if the customer is in default of payment of the remuneration in full or in part (plea of non-performance of contract). The obligation to pay the contractually agreed remuneration shall not be affected by the blocking. We may make the renewed activation of our services dependent on the settlement of all outstanding claims against the customer. Further rights remain unaffected by this provision.
4. As soon as we become aware that hindrances or impairments (may) occur which may have an effect on our performance, we shall inform the customer without delay, stating the reason and the expected duration of the hindrance.
5. We have the right to provide our services, including the rectification of defects, by way of remote service, as far as this is technically possible. In case a corresponding service provision is not possible, we are obliged to send staff to the customer in order to the services being rendered on site.
VI. Warranties for Defects in Rental Services
1. The statutory provisions of §§ 535 et seq. of the German Civil Code (BGB) (tenancy law claims for defects) shall apply to the customer’s rights in respect of material defects and defects of title within the framework of the temporary transfer of our goods (rental) BGB (tenancy law claims for defects) shall apply unless otherwise stipulated in these GCT. During the term of the contract, we guarantee that the contractually agreed quality of the rented goods will be maintained and that no rights of third parties will prevent the contractual use of the rented goods / services. We shall remedy any material defects and defects of title in the rented property within a reasonable period of time.
2. If a defect in the rental object arises in the course of the rental relationship, or if a measure is required to protect the rental object against an unforeseen hazard, or if a third party claims a right to the rental object, the customer must notify us of this in writing without delay, but within 3 working days at the latest, describing the more detailed circumstances of the defect. If the customer fails to notify us, he shall be obliged to compensate us for the resulting damage. Insofar as we were unable to remedy the situation as a result of the failure to notify us, the customer shall not be entitled to assert the rights set out in § 536 BGB (in particular reduction), to claim damages in accordance with § 536a para. 1 BGB, or to terminate the contract without setting a reasonable deadline for remedying the situation in accordance with § 543 para. 3 sentence 1 BGB.
3. The lessor’s liability without fault for initial defects is excluded.
4. The provisions of section A XIII of these GCT shall apply to our liability for damages and reimbursement of expenses of the rentee pursuant to § 536a BGB.
VII. Obligations upon Termination
1. Upon termination of the contract, the customer must immediately discontinue the use of our services provided under the rental contract. The customer must then return, destroy or delete all documents, information, access data and in particular licence keys as well as software copies and the documents associated with the software at our discretion. Furthermore, the customer shall uninstall any from our side provided software.
2. We will disable the customer’s access on the termination date.
3. Where the customer has rented physical space in one of our data centres, the customer is obliged to take back the hardware owned by him immediately from the location of our data centre.
4. In the event of termination of the contract, the customer is entitled to take over his data stored on our systems or to transfer it to third parties. The customer is solely responsible for the transfer/migration of the customer’s data. The customer shall carry out any migration him-/herself or have it carried out by a third party. Support services provided by us in this regard and their remuneration are not included in our services. We shall support the customer with any necessary data transfer upon termination of the contract, whereby we shall additionally invoice the working time spent on this as per separate quotation.
5. The data stored by the client will be deleted 30 days after termination of the contract or after an agreed data transfer, unless the client informs us within this period that the transferred data is unreadable or incomplete. The customer alone is responsible for compliance with any retention periods under commercial and tax law.
D. Specific conditions for work and services
1. Where we owe the provision of work or services, such as the creation of individual software, the construction of a complete system, maintenance services or training services, the following provisions of this section shall apply additionally.
2. The term individual software within the meaning of this GCT includes both individual adaptation services and add-ons to standard software, as well as the new development of software together with the associated programme and user documentation.
II. Acceptance and Transfer of Risk
1. If we provide contractual services for the customer (e.g., the production of a storage system, maintenance or repair services), the acceptance of our service shall be effected by declaration of the customer in text form (e.g., by e-mail) or by the actual putting into use of the service by the customer.
2. The customer is obliged to declare acceptance if the work does not show any significant defects at the time of acceptance. Merely insignificant defects do not justify the customer’s right to refuse acceptance. If the customer does not declare acceptance, although he is obliged to do so, we are entitled to set the customer a deadline of 10 working days to declare acceptance. After effectless expiry of this period, acceptance shall be deemed to have taken place, provided that the customer does not present any significant defects in writing, stating reasons.
3. If the acceptance fails, the customer shall immediately provide us with a list of all defects preventing the acceptance.
4. We are entitled and the customer is obliged to demand or declare partial acceptance of definable parts of the performance. The regulations for acceptance shall apply accordingly to the partial acceptances.
5. If acceptance is to take place, this shall be decisive for the transfer of risk.
III. Rights of Use of Customised Software
1. If we owe the production of customised software, the customer shall be granted the simple, non-exclusive, non-sublicensable, transferable right, unlimited in time, limited in content to the scope of the contract and limited in location to the territory of the member states of the European Union (EU), to use the software in their business for their own purposes. The prerequisite for this is that the customer fulfils all his obligations under the contract, in particular his payment obligations. The customer does not acquire any further rights to the software. All exclusive and further rights shall remain entirely with us and/or the third-party providers, unless they have been explicitly granted to the customer.
2. If it is apparent from any of the services and descriptions offered by us, or if it is apparent from the confirmation of service rendered or any documentation provided by us or by the customer, that our services contain a product of a thirdparty supplier and/or source code or a module originating from us or a third-party supplier, the customer shall observe the relevant terms and conditions on licensing and use and breach of contract in respect of such products, source code or modules. We shall send the terms and conditions to be observed by the customer in each case to the customer free of charge at the customer’s request. In the case of software products, the corresponding terms and conditions shall be displayed to the customer in the course of the initial installation of the software. The customer then has the option to save the conditions. If the customer accepts the terms and conditions, a direct contract of use is concluded between the customer and the third-party provider.
3. The customer has neither a right to inspect the source code nor to be provided with the source code of standard software.
4. If and to the extent that our services include or comprise the development of a new or modified functionality, we or the relevant third-party provider shall, unless otherwise agreed, acquire all intellectual property rights, including copyrights, trademark rights, design rights, patent rights for the new or modified functionalities. The customer shall have the right to use such new developments or modifications, as well as any software provided, in accordance with the conditions in section D, III of this GCT, provided that the customer pays the appropriate remuneration under the contract.
IV. Our Rights and Additional Customer Obligations to Cooperate
1. We are free to arrange our working hours as we wish. However, we have to coordinate with the client for the cooperation with the client and for meeting deadlines.
2. We have the right to provide our services, including the rectification of defects, by way of remote service, as far as this is technically possible. In case a corresponding service provision is not possible, we are obliged to send staff to the customer to ensure the services can be provided on site.
3. If, within the scope of our so-called colocation services, we take over hardware that is the property of the customer, the customer shall be obliged to adequately insure the hardware that is integrated in our data centre and to provide us with a copy of the insurance certificate.
4. If we provide so-called colocation services, we shall be entitled to request the customer to relocate its hardware from our data centre areas to other data centre areas operated by us, provided there are compelling reasons, in particular:
- if the building or parts of the building where the customer’s hardware is
located is damaged or destroyed in such a way that we are no longer
able to provide the space on the agreed or otherwise legally required
- if the customer’s rental claim or right of use with regard to the building or
part of the building where the item is located is terminated or substantially
- if the move is necessary to maintain or improve the efficiency of the data
- if required in an emergency situation to eliminate significant problems in
the provision of services to the client or to other of our clients;
- if necessary to prevent the hardware from interfering with other
customers’ equipment or our data centre infrastructure;
- if this is s ordered by a court or an administrative or regulatory authority,
or where this is necessary due to a legal requirement or a regulatory
The relocation is planned and carried out in close coordination with the customer
5. As soon as we become aware that hindrances or impairments (may) occur which may have an effect on our service delivery, we shall inform the customer without delay, stating the reason and the expected duration of the hindrance.
V. Change Request
1. If the provision of services under a contract for work and services has been agreed, the customer may request changes to the scope of services owed under the contract for work and services at any time after conclusion of the contract, as far as this is reasonable for us. The customer shall submit the request for change at least in text form.
2. We shall examine the customer’s request for change and shall inform the customer within a reasonable period of time, in particular taking into account the nature and scope of the request for change, whether it is reasonable for us and, if not, why it is not reasonable.
3. If the reasonable change request has no influence on the agreed remuneration or deadlines, we will immediately start to implement the change request and will inform the customer accordingly.
4. If the reasonable request for change has an impact on the agreed remuneration or deadlines, we shall submit an offer for implementation, stating the deadlines and the impact on the agreed remuneration. The customer shall accept or reject our implementation offer without delay.
5. If the preparation of the implementation offer requires extensive (technical) planning, we are entitled to make this dependent on the payment of an appropriate remuneration. In this case, we shall submit a corresponding planning quote with details of the remuneration. The customer shall accept or reject our planning quotation without delay.
6. If an agreement is reached on the change of services, the contract shall be adjusted accordingly. If no agreement is reached, the work shall be continued on the basis of the current contract.
VI. Support Services
1. Unless otherwise agreed in the contractual documents, the following provisions shall apply to agreed support services. The customer is obliged to report faults as follows.
2. Our support consists of a helpdesk function. Our support includes first and second level support. Our support, assistance and advice during normal business hours is included in the agreed support remuneration if the support is provided remotely from the helpdesk. The customer has to provide the technical prerequisites of an internet access and the possibility of remote maintenance at his own expense.
3. We are expressly not responsible for the restart of software or systems which are not the subject matter of the contract, for incidents caused by the customer’s own hardware, equipment or software or its IT environment, for incidents caused by modifications or interruptions of our services by the customer or by the customer’s software, for incidents caused by cyber attacks, virus, malware and similar events, for incidents caused by third parties or by incidents for which we are not responsible, caused by third parties or circumstances beyond our control, such as interruption of the customer’s internet connection, hardware defects or software errors not covered by our service, or for incidents caused by incorrect information provided by the customer. If we nevertheless provide services in the aforementioned cases, we are entitled to invoice these additionally in accordance with the agreed remuneration or a separate quotation.
4. Expressly excluded from our support is the planning and service of backups and replications which we are not responsible for, unless we explicitly owe such services.
5. If we are obliged to rectify the malfunction, we are entitled to provide a workaround solution until a programme version that rectifies the malfunction is available.
6. In the event that support services are not provided via remote support, we shall be entitled to additionally charge corresponding daily rates, travel costs, accommodation costs. Furthermore, we are entitled to additionally charge travel costs, travel time and overtime, provided the travel or overnight stay has prior been agreed between the customer and us.
7. Unless otherwise agreed, our support is available daily during the following business hours: 08:00 to 17:00 CET; except: Saturdays, Sundays, national holidays
8. The customer must inform us immediately of any incidents and/or defects or error patterns in our services by telephone or email. When reporting incidents, the customer must describe and demonstrate to us what the reported incident consists of and the customer must provide us with sufficient information to enable us to recreate or repeat the incident. The customer must promptly provide us, at our request, with data and information necessary to provide our support. Furthermore, the customer must immediately follow our instructions and verify and confirm our information in this respect. Furthermore, the customer must, if necessary, provide us with access to their premises, their IT environment and other objects to enable us rendering the support.
VII. Training Services
1. Unless otherwise agreed in the contract documents, the following provisions shall apply to agreed training services.
2. Within the scope of the training, we shall provide training and support services (“training services”) in consultation with the customer. The training services shall be specified in more detail between the customer and us.
3. We determine the content of the training services at our discretion, guided by the training needs of the customer.
4. The training dates shall be agreed and determined together with the customer if the training services are provided individually for a customer.
5. Unless otherwise agreed, all training courses shall be held in German.
6. The training documents shall only be made available to the customer on a permanent basis by separate agreement.
7. The customer shall support our training services by appropriate cooperation, in particular by providing the necessary infrastructure such as projector, WIFI, etc.. If the training services take place on the business premises of the customer, the customer shall in particular allow us access to these premises.
VIII. Liability for Defects in Services and Works
1. Insofar as our services are services or work services (e.g., support services, production of individual software, managed services, the construction of an overall system or the operation of the customer’s hardware as the customer’s own cloud by us in one of our data centres), we shall be liable for defects in these services inaccordance with the rules of service or work contract law (§§ 611 et seq. of the German Civil Code, 631 et seq. of the German Civil Code), to the extent that nothing to the contrary is stipulated in the following clauses.
2. The customer’s examination and complaint obligations pursuant to §§ 377, 381 of the German Commercial Code (HGB) shall apply accordingly to services under a contract for work and services. The customer is obliged to notify us in writing immediately, but at the latest within 7 working days after acceptance of the work, of any recognisable defect or other claims with regard to the work delivered, hidden defects within 7 working days from awareness of the defect. After expiry of this period, the work shall be deemed to be free of defects.
3. If a defect exists, we shall be entitled to choose whether to remedy the defect or to deliver a defect-free item. If supplementary performance is impossible or disproportionate, we are entitled to refuse it. In this case, an appropriate reduction amount shall be agreed or the customer may – if the defect or violation of duty is significant – withdraw from the contract as per statutory provisions. We are entitled to make the supplementary performance owed dependent on the customer paying the remuneration due. However, the customer is entitled to retain a part of the remuneration that is reasonable and proportionate to the defect.
4. In the event of supplementary performance of services under a contract for work and services, we shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs (cf. section 635 para. 2 BGB), if there is actually a defect and insofar as these are not increased by the fact that the goods were transported to a place other than the place of service, unless the transport corresponds to the intended use of the goods. We may demand reimbursement from the customer of the costs incurred as a result of an unjustified request to remedy a defect (in particular inspection and transport costs), unless the absence of a defect was not recognisable to the customer.
5. The customer’s rights in respect of defects under the contract for work and services shall come under the statute of limitations within 12 months of delivery of the goods or acceptance. This period does not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty on our part or on the part of our agents, nor to cases of recourse by the entrepreneur (§§ 478, 479 BGB) and claims arising from supplier recourse pursuant to §§ 445a, 445b BGB, for our liability for fraudulent intent, for guaranteed characteristics of quality or for claims by the customer under the Product Liability Act (ProdHaftG); these claims shall become statute-barred in accordance with the statutory provisions. The statutory periods shall also apply to claims based on defects in a building or for delivery items that were used for a building in accordance with their customary use and caused its defectiveness.
If the customer makes use of his free right of termination pursuant to § 648 BGB, the legal consequence of § 648 BGB shall apply with the proviso that instead of 5 per cent, we shall be entitled to 15 per cent of the agreed remuneration attributable to the part of the work performance not yet performed. The customer shall be at liberty to prove that no damage at all or not in the amount stated has been incurred. We reserve the right to assert a higher proven damage. In this case, the lump sum shall be offset.