A. General section
I. Scope
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
law; - 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
data centre
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.
IX. Subcontractors
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.
XVIII. Advertising
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.
XIX. Recommendation
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
I. Applicability
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
I. Applicability
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
centre.
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
I. Applicability
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
conditions; - 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
deteriorated; - if the move is necessary to maintain or improve the efficiency of the data
centre; - 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
provision.
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.
IX. Termination
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.
