General terms and conditions

1. Remuneration, Payment, Performance Protection, Deadlines

1.1 Unless otherwise agreed, the remuneration will be calculated based on expenditure at the provider's generally valid prices at the time of conclusion of the contract. Remunerations are generally net prices plus statutory sales tax. The provider can bill monthly. If services are paid according to expenses, the provider documents the type and duration of the activities and submits this documentation with the invoice.

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1.2 In principle, all invoices must be paid without deduction no later than 14 calendar days after receipt by a free paying agent.

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1.3 The customer can only offset or withhold payments due to deficiencies insofar as he is actually entitled to payment claims due to material or legal deficiencies in the service. Due to other claims for defects, the customer can only withhold payments to a proportionate extent taking into account the defect. Section 4.1 applies accordingly. The customer has no right of retention if his claim for defects is time-barred. Otherwise, the customer can only offset undisputed or legally established claims or exercise a withholding.

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1.4 The provider reserves ownership and rights to the services until full payment of the remuneration owed, justified deductions in accordance with Section 1.3. Sentence 2 is taken into account. Furthermore, the provider reserves ownership until all of its claims arising from the business relationship with the customer have been met. The provider is entitled to prohibit the customer from continuing to use the services for the duration of a delay in payment. The provider can only assert this right for a reasonable period of time, usually a maximum of 6 months. This does not constitute a withdrawal from the contract. Section 449 (2) BGB remains unaffected. If the customer or his customer returns the services, the receipt of the services does not constitute a withdrawal by the provider, unless he has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the provider. The customer may neither pledge nor provide security against objects subject to ownership or reservation of rights. As a reseller, the customer is only permitted to resell in the normal course of business on condition that the customer has effectively assigned to the provider his claims against his customers in connection with the resale and the customer transfers ownership to his buyer subject to payment. By concluding this contract, the customer assigns his future claims in connection with such sales against his customers to the provider, who hereby accepts this assignment. Insofar as the value of the provider's security rights exceeds the amount of the secured claims by more than 20%, the provider will release a corresponding share of the security rights at the customer's request.

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1.5 In the event of a permitted transfer of rights to use deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.

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1.6 If the customer fails to settle a claim in whole or in part on the contractual payment date, the provider may revoke agreed payment terms for all claims. The provider is also entitled to provide further services only against payment in advance or against security provided by a credit institution or credit insurer approved in the European Union. Prepayment must cover the respective billing period or — in the case of one-off services — their remuneration.

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1.7 In the event of economic failure on the part of the customer to fulfill its obligations towards the provider, the provider may terminate existing exchange contracts with the customer without notice by resignation, continuing debt relationships through termination, even if the customer files for insolvency. Section 321 BGB and Section 112 InsO remain unaffected. The customer will inform the provider in writing at an early stage of an impending payment invalidity.

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1.8 Fixed performance dates should be agreed exclusively in documented form. The agreement of a fixed performance date is subject to the provider receiving the services of its respective upstream suppliers in good time and in accordance with the contract.

2. Cooperation, duties to cooperate, confidentiality

2.1 Customer and provider each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider takes place via these contacts. The contact persons must immediately take all decisions relating to the execution of the contract. Decisions must be documented in a binding manner.

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2.2 The customer is obliged to support the provider as far as necessary and to create all conditions necessary for the proper execution of the order within its operational sphere. In particular, he will provide the necessary information and, if possible, enable remote access to the customer system. If remote access is not possible for security reasons or other reasons, the deadlines affected by this will be extended accordingly; the contractual partners will agree on an appropriate arrangement for further effects. The customer also ensures that expert personnel are available to support the provider. Insofar as it is agreed in the contract that services can be provided on site at the customer's site, the customer will provide sufficient jobs and work equipment free of charge at the provider's request.

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2.3 Unless otherwise agreed, the customer will ensure proper data backup and failure prevention for data and components (such as hardware, software) that is appropriate for their type and significance.

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2.4 The customer must immediately report deficiencies in writing in comprehensible and detailed form, providing all information relevant for defect detection and analysis. In particular, the work steps that led to the occurrence of the defect, the appearance and the effects of the defect must be specified. Unless otherwise agreed, the provider's appropriate forms and procedures will be used for this purpose.

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2.5 The customer will provide the provider with appropriate support upon request in examining and asserting claims against other parties in connection with the provision of services. This applies in particular to recourse claims made by the provider against upstream suppliers.

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2.6 The contractual partners are obliged to maintain secrecy about trade secrets and other information described as confidential (e.g. in documents, documents, databases) that become known in connection with the execution of the contract and neither to use nor disclose them beyond the purpose of the contract without the written consent of the other contractual partner. The respective receiving contract partner is obliged to take appropriate secrecy measures for trade secrets and information described as confidential. The contractual partners are not entitled to obtain trade secrets from the other contractual partner by observing, examining, dismantling or testing the subject matter of the contract. The same applies to other information or objects received during the execution of the contract. The transfer of trade secrets and other information described as confidential to persons who are not involved in the conclusion, execution or execution of the contract may only take place with the written consent of the other contractual partner. Unless otherwise agreed, the obligation to maintain secrecy for other information described as confidential expires five years after the respective information becomes known, but not before termination in the case of continuing obligations. Trade secrets must be kept secret for an unlimited period of time. The contract partners will also impose these obligations on their employees and any third parties employed.

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2.7 The contract partners are aware that electronic and unencrypted communication (e.g. via email) involves security risks. In this type of communication, they will therefore not make any claims based on the lack of encryption, unless encryption has been agreed beforehand.

3. Disruptions in the provision of services

3.1 If a cause for which the provider is not responsible, including a strike or lockout, affects compliance with deadlines (“disruption”), the appointments are postponed for the duration of the disruption, including, if necessary, an appropriate restart period. A contractual partner must immediately inform the other contractual partner of the cause of a malfunction that has occurred in its area and the duration of the postponement.

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3.2 If the expenses increase due to a malfunction, the provider may also demand compensation for the additional expenses, unless the customer is not responsible for the fault and its cause is outside his area of responsibility.

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3.3 If the customer can withdraw from the contract due to improper performance by the provider and/or claim compensation instead of the service, the customer will, at the provider's request, explain in writing within a reasonable period of time whether he asserts these rights or wishes to continue to provide the service. In the event of a withdrawal, the customer must reimburse the provider for the value of previously existing usage options; the same applies to deteriorations due to intended use. If the provider is in default with the provision of services, the customer's damage and reimbursement of expenses due to the delay for each completed week of delay is limited to 0.5% of the price for the part of the contractual service that cannot be used due to the delay. The default liability is limited to a maximum of 5% of the remuneration for all contractual benefits affected by the default; in the case of continuing debt relationships, based on the remuneration for the respective affected benefits for the full calendar year. In addition and priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply. This does not apply if a delay is based on gross negligence or intent on the part of the provider.

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3.4 In the event of a delay in performance, the customer has a right of withdrawal within the framework of legal provisions only if the provider is responsible for the delay. If, as a result of the delay, the customer is entitled to claim damages or reimbursement of expenses in lieu of performance, he is entitled to claim 1% of the price for the part of the contractual service that cannot be used as a result of the delay, but a maximum of 10% of this price in total; in the case of continuing debt relationships based on the remuneration for the respective services concerned for the full calendar year. In addition and priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply.

4. Defects and reimbursement of expenses

4.1 The provider guarantees the contractually owed quality of the services. There are no claims due to material defects for an only insignificant deviation of the provider's services from the contractually agreed quality. Claims due to deficiencies also do not exist in the event of excessive or improper use, natural wear, failure of components of the system environment, software errors that are not reproducible or otherwise verifiable by the customer, or damage caused by particular external influences that are not required under the contract. This also applies to subsequent changes or repairs by the customer or third parties, unless this does not make the analysis and elimination of a material defect difficult. Section 6 shall apply in addition to compensation and claims for reimbursement of expenses.

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4.2 The limitation period for claims for material defects is one year from the start of the statutory limitation period. The legal deadlines for recourse in accordance with Section 478 BGB remain unaffected. The same applies insofar as the Act in accordance with Section 438 (1) No. 2 or Section 634a (1) No. 2 BGB prescribes longer time limits, in the event of an intentional or grossly negligent breach of duty by the provider, in cases of fraudulent concealment of a defect and in cases of injury to life, body or health, as well as for claims under the Product Liability Act. The processing of a material defect report from the customer by the provider will only result in the suspension of the limitation period, provided that the legal requirements for this are met. This does not result in a new start of the statute of limitations. Subsequent performance (new delivery or repair) can only have an effect on the limitation period of the defect triggering the replacement.

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4.3 The provider may demand compensation for its expenses insofar as a) it takes action on the basis of a report without there being a defect, unless the customer was unable to recognize with reasonable effort that there was no defect, or b) a reported fault cannot be reproduced or is otherwise demonstrable by the customer as a defect, or c) additional expenses due to improper fulfilment of the customer's obligations (see also paragraphs 2.2, 2.3, 2.4 and 5.2) applies.

5. legal deficiencies

5.1 The provider is only liable for violations of third-party rights as a result of its service if the service is used without change in accordance with the contract and in particular in the contractually agreed otherwise in the intended operating environment. The provider is only liable for violations of third-party rights within the European Union and the European Economic Area and at the place of contractual use of the service. Section 4.1 sentence 1 applies mutatis mutandis.

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5.2 If a third party claims to the customer that a service provided by the provider violates his rights, the customer shall immediately notify the provider. The provider and, if applicable, its sub-suppliers are entitled, but not obliged, to ward off the claims made at their own expense, to the extent permitted. The customer is not entitled to accept third-party claims before he has given the provider a reasonable opportunity to defend the rights of third parties in any other way.

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5.3 If a service provided by the provider infringes the rights of third parties, the provider will, at its own discretion and at its own expense, a) grant the customer the right to use the service or b) make the service free of infringement or c) withdraw the service with reimbursement of the remuneration paid by the customer for this purpose (minus an appropriate compensation for use) if the provider is unable to obtain any other remedy with reasonable effort. The interests of the customer are adequately taken into account.

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5.4 Customer claims due to legal errors expire in accordance with Section 4.2. Section 6 shall apply in addition to compensation and claims for reimbursement of expenses by the customer, and Section 4.3 shall apply mutatis mutandis to additional expenses incurred by the provider.

6. General liability of the provider

6.1 The provider is always liable to the customer a) for damage caused intentionally or grossly negligently by him and his legal representatives or vicarious agents, b) under the Product Liability Act and c) for damage resulting from injury to life, body or health for which the provider, his legal representatives or vicarious agents are responsible.

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6.2 The provider is not liable in the event of slight negligence, except insofar as it has breached an essential contractual obligation, the performance of which enables the proper execution of the contract in the first place or whose violation jeopardizes the achievement of the purpose of the contract and on whose compliance the customer may regularly rely. In the event of property and property damage, this liability is limited to the contract-typical and foreseeable damage. This also applies to lost profits and missed savings. Liability for other removed sequential damage is excluded. For an individual claim, liability is limited to the contract value; in the case of ongoing compensation, to the amount of compensation per contract year, but not to less than €50,000. Section 4.2 applies mutatis mutandis to the limitation period. When concluding the contract, the contracting parties may agree on further liability, usually in return for a separate payment, in writing. Priority is given to an individually agreed liability amount. Liability in accordance with Section 6.1 remains unaffected by this paragraph. In addition and priority, the liability of the provider due to slight negligence under the respective contract and its execution for damage and reimbursement of expenses, irrespective of the legal basis, is limited in total to the percentage of the remuneration agreed upon conclusion of the contract. Liability in accordance with section 6.1 b) remains unaffected by this paragraph.

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6.3 Under a warranty statement, the provider is only liable for damages if this has been expressly accepted in the warranty. In the event of slight negligence, this liability is subject to the restrictions set out in Section 6.2.

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6.4 If data or components (such as hardware, software) need to be restored, the provider is only liable for the effort required to restore data with proper data backup and failure prevention by the customer. In the event of slight negligence on the part of the provider, this liability only occurs if the customer has carried out data backup and failure prevention appropriate to the type of data and components prior to the fault. This does not apply insofar as this is agreed as a service provided by the provider.

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6.5 Sections 6.1 to 6.4 apply mutatis mutandis to claims for reimbursement of expenses and other liability claims made by the customer against the provider. Sections 3.3 and 3.4 remain unaffected.

7. Data protection

The customer will conclude agreements with the provider that are necessary under data protection law for the handling of personal data.

8. Miscellaneous

8.1 The customer is responsible for complying with import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or service, the customer bears any customs duties, fees and other charges. The customer will handle legal or regulatory proceedings in connection with cross-border deliveries or services on his own responsibility, unless otherwise expressly agreed.

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8.2 German law applies. The application of UN sales law is excluded.

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8.3 The provider provides its services on the basis of its general terms and conditions (GTC). The customer's terms and conditions do not apply, even if the provider has not expressly objected to them. Acceptance of the services by the customer is considered acceptance of the provider's terms and conditions, waiving the customer's terms and conditions. Other conditions are only binding if the provider has accepted them in writing; in addition, the provider's terms and conditions apply.

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8.4 Amendments and additions to this contract should only be agreed in writing. Insofar as written form has been agreed (e.g. for cancellations, resignations), text form is not sufficient.

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8.5 The place of jurisdiction over a merchant, a legal entity under public law or a special public asset is the registered office of the provider. The provider can also sue the customer at his registered office.

Using software
1. Services

1.1 The provider provides the contractual services, in particular access to the software, in its area of disposal (from the data center interface to the Internet). The scope of services, nature, purpose and terms of use of the contractual services are set out in the respective service description, in addition to the software user manual.

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1.2 Additional services, such as the development of customer-specific solutions or necessary adjustments, require a separate contract.

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1.3 The provider may provide updated versions of the software. The provider will inform the customer of updated versions and corresponding usage instructions electronically and make them available accordingly.

2. Scope of use

2.1 The contractual services may only be used by the customer and only for the purposes agreed in the contract. During the term of the contract, the customer may access the contractual services via telecommunications (via the Internet) and use the functionalities associated with the software in accordance with the contract using a browser or other suitable application (e.g. “app”). The customer does not have any further rights, in particular to the software or any infrastructure services provided in the respective data center. Any further use requires the prior written consent of the provider.

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2.2 In particular, the customer may not make use of the software beyond the agreed scope of use or let third parties use it or make it available to third parties. In particular, the customer is not permitted to reproduce, sell or transfer, rent or loan software or parts of it for a limited period of time.

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2.3 The provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract must not be affected more than insignificantly.

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2.4 In the event of a user exceeding the scope of use in breach of contract or in the event of an unauthorised transfer of use, the customer must, upon request, immediately provide the provider with all information available to him to assert the claims due to the use contrary to the contract, in particular to provide the name and address of the user.

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2.5 The provider may revoke the customer's access authorization and/or terminate the contract if the customer significantly exceeds the permitted use or violates regulations to protect against unauthorized use. In connection with this, the provider can interrupt or block access to the contractual services. As a matter of principle, the provider must provide the customer with a reasonable period of grace to remedy the situation. The sole revocation of the access right is not considered a termination of the contract at the same time. The provider can only maintain the revocation of access rights without notice for a reasonable period of time, a maximum of 3 months.

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2.6 The provider's claim to payment for use in excess of the agreed use remains unaffected.

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2.7 The customer is entitled to reinstatement of access rights and access rights after he has proven that he has stopped using the contract and prevented future use contrary to the contract.

3. Availability, performance deficiencies

3.1 The availability of the services provided is set out in the service description.

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3.2 If there is only an insignificant reduction in the suitability of the services for use in accordance with the contract, there are no claims on the part of the customer due to deficiencies. The provider's liability independent of fault due to deficiencies that already existed at the time the contract was concluded is excluded.

4. Data protection

4.1 Insofar as the provider can access personal data of the customer or from his area, he will only act as an order processor and process and use this data only to execute the contract. The provider will comply with the customer's instructions for handling this data. The customer bears any adverse consequences of such instructions for the execution of the contract. The customer will agree with the provider the details of how the provider will handle the customer's data in accordance with data protection requirements.

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4.2 The customer remains responsible both in general in terms of order relationship and in terms of data protection law. If the customer processes personal data (including collection and use) in connection with the contract, he guarantees that he is entitled to do so in accordance with the applicable, in particular data protection regulations and, in the event of a violation, releases the provider from third-party claims.

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4.3 The following applies to the relationship between provider and customer: The customer is responsible for the processing (including collection and use) of personal data vis-à-vis the data subject, unless the provider is responsible for any claims made by the data subject due to a breach of duty attributable to him. The customer will responsibly review, process and answer any inquiries, requests and claims made by the person concerned. This also applies if the person concerned makes a claim against the provider. The provider will support the customer as part of its duties.

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4.4 The provider guarantees that customer data is stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another state party to the Agreement on the European Economic Area, unless otherwise agreed.

5. Obligations of the customer

5.1 The customer must protect the access rights and identification and authentication information assigned to him or the users from access by third parties and not pass them on to unauthorized parties.

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5.2 The customer is obliged to indemnify the provider from all claims made by third parties based on illegal use of the service item by him or with his approval. If the customer recognizes or must recognize that such a violation is imminent, there is an obligation to inform the provider immediately.

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5.3 The customer must use the options provided by the provider to secure his data in his original area of responsibility.

6. Use contrary to contract, compensation

In any case in which a contractual service within the customer's area of responsibility is unjustified, the customer must pay compensation in the amount of the remuneration that would have been incurred for the contractual use within the minimum contract period applicable to this service. The customer reserves the right to prove that the customer is not responsible for the unauthorized use or that there is no or significantly less damage. The provider remains entitled to claim further damage.

7. Disturbance management

7.1 The provider will receive fault reports from the customer, assign them to the agreed fault categories (Section 7.3) and, on the basis of this allocation, carry out the agreed measures to analyze and correct faults.

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7.2 During its normal business hours, the provider will receive proper fault reports from the customer and provide each with an identifier. At the customer's request, the provider will confirm receipt of a fault report by notifying him of the assigned identifier.

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7.3 Unless otherwise agreed, the provider will assign received fault reports to one of the following categories after an initial review: a) Serious fault The fault is based on an error in the contractual services, which makes the use of the contractual services, in particular the software, impossible or only allows it with serious restrictions. The customer cannot reasonably avoid this problem and therefore cannot complete tasks that cannot be postponed. b) Other fault The fault is based on an error in the contractual services, which more than insignificantly limits the use of the contractual services, in particular the software, by the customer without causing a serious disturbance. Reports that do not fall into categories a) and b) are assigned to other notifications. Other reports will only be handled by the provider in accordance with the agreements made for this purpose.

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7.4 In the event of reports of serious faults and other faults, the provider will immediately take appropriate measures based on the circumstances reported by the customer to first localize the cause of the fault. If, after initial analysis, the reported fault does not represent an error in the contractual services, in particular the software provided, the provider will immediately inform the customer of this. Otherwise, the provider will take appropriate measures to further analyze and correct the reported fault or — in the case of third-party software — will send the fault report together with its analysis results to the distributor or manufacturer of the third-party software with a request for remedy. The provider will immediately provide the customer with measures available to circumvent or correct an error in the contractual services, in particular the software provided, such as instructions for action or corrections to the provided software. The customer will immediately take such measures to avoid or correct faults and will immediately report any remaining faults to the provider when they are used.

8. Contact point (hotline)

8.1 Contractual services

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The provider sets up a contact point for the customer (hotline). This office processes the customer's inquiries in connection with the technical requirements and conditions of the software provided as well as with individual functional aspects.

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8.2 Accepting and processing inquiries
The prerequisite for the acceptance and processing of inquiries is that the customer appoints professionally and technically qualified personnel from the provider who are commissioned internally by the customer to process inquiries from users of the software provided. The customer is obliged to send inquiries to the hotline only via these personnel named by the provider and to use forms provided by the provider. The hotline receives such inquiries by e-mail, fax and telephone during the provider's normal business hours. The hotline will process proper inquiries in the normal course of business and answer them as far as possible. The hotline can provide the customer with available documentation and other training materials for the software provided to answer. If an answer from the hotline is not possible or not promptly, the provider — insofar as this is expressly agreed — will forward the request for processing, in particular inquiries about software not manufactured by it. Further services provided by the hotline, such as other contact times and deadlines as well as on-call services or assignments by the provider on site at the customer's premises, must be expressly agreed in advance.

9. Contract period and contract termination

9.1 The contractually agreed services will be provided from the date specified in the contract, initially for the duration of the term agreed in the contract. During this minimum period, early ordinary termination on both sides is excluded.

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9.2 The contract can be terminated with a notice period of three months, at the earliest when the minimum term expires. If this does not happen, the contract is extended by a further year, unless it has been duly terminated with a period of 3 months before the end of the respective extension period.

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9.3 The right of each contractual partner to terminate the contract for good cause remains unaffected.

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9.4 Any declaration of termination must be made in writing in order to be effective. Section 8.4 AV Bitkom applies.

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9.5 The customer will back up his data on his own responsibility (for example by downloading) in good time before the contract is terminated. On request, the provider will assist the customer in this; Section 4.3 AV Bitkom applies. After termination of the contract, the customer will no longer be able to access these databases on a regular basis for data protection reasons alone.

10. Validity of AV Bitkom

In addition, the general contract conditions apply.

Status: November 2020