Unless otherwise agreed, remuneration shall be calculated on a time and material basis at the provider's prices generally applicable at the time of conclusion of the contract. Remunerations are always net prices plus legally applicable value added tax. The Provider may invoice on a monthly basis. If services are remunerated on a time and material basis, the Provider shall document the nature and duration of the activities and submit this documentation with the invoice.
All invoices are to be paid in full no later than 10 calendar days after receipt.
The customer may only offset or withhold payments due to defects to the extent that it is actually entitled to payment claims due to material defects or defects in title of the performance. Due to other claims for defects, the customer may withhold payments only to a proportionate extent, taking into account the defect. Clause 4.1 shall apply accordingly. The customer shall have no right of retention if its claim for defects is time-barred. In all other respects, the customer may only offset or exercise a right of retention against undisputed or legally established claims.
The Provider retains ownership and rights to be granted to the Services until the remuneration owed has been paid in full; justified retentions for defects pursuant to Clause 1.3. sentence 2 shall be taken into account. Furthermore, the Provider retains ownership until all its claims arising from the business relationship with the Customer have been satisfied.
The Provider shall be entitled to prohibit the Customer from further use of the Services for the duration of any default in payment by the Customer. The Provider may only assert this right for a reasonable period of time, generally for a maximum of 6 months. This does not constitute a withdrawal from the contract. § Section 449 (2) BGB remains unaffected.
If the customer or the customer's customer returns the services, the acceptance of the services does not constitute a withdrawal by the supplier, unless the supplier has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or rights to the reserved goods by the supplier. The customer may neither pledge nor transfer by way of security items under ownership or reservation of rights. The customer shall only be permitted to resell the goods in the ordinary course of business as a reseller on condition that the customer has effectively assigned to the supplier its claims against its customers in connection with the resale and the customer transfers ownership to its customer subject to payment. By concluding this contract, the customer assigns its future claims in connection with such sales against its customers to the supplier by way of security, who hereby accepts this assignment.
If the value of the Provider's security interests exceeds the amount of the secured claims by more than 20%, the Provider shall release a corresponding portion of the security interests at the Customer's request.
In the event of a permissible transfer of rights of use to supplies and services, the customer shall be obliged to impose the contractually agreed restrictions on the recipient.
If the customer does not settle a due claim in full or in part by the contractual payment date, the provider may revoke agreed payment terms for all claims. The Provider is further entitled to perform further services only against advance payment or against security in the form of a performance bond issued by a credit institution or credit insurer licensed in the European Union. The advance payment shall cover the respective billing period or - in the case of one-off services - their remuneration.
In the event of the Customer's economic inability to fulfill its obligations to the Provider, the Provider may terminate existing exchange contracts with the Customer by rescission, and continuous obligations by termination without notice, even if the Customer files for insolvency. § 321 BGB and § 112 InsO remain unaffected. The Customer shall inform the Provider in writing at an early stage of any impending insolvency.
Fixed performance dates shall only be expressly agreed in documented form. The agreement of a fixed performance date is subject to the proviso that the Provider receives the services of its respective upstream suppliers on time and in accordance with the contract.
Cooperation, duties to cooperate, confidentiality
The customer and the provider shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider shall take place via these contact persons. The contact persons shall immediately bring about all decisions related to the execution of the contract. The decisions shall be documented in a binding manner.
The Customer shall be obliged to support the Provider to the extent necessary and to create in its sphere of operation all prerequisites required for the proper execution of the order. In particular, the Customer shall provide the necessary information and, if possible, enable remote access to the Customer's system. If remote access is not possible for security reasons or other reasons, the deadlines affected by this shall be extended appropriately; the contracting parties shall agree on an appropriate arrangement for further effects. The Customer shall also ensure that expert personnel are available to support the Provider. Insofar as it is agreed in the contract that services can be performed on site at the Customer's premises, the Customer shall provide sufficient workstations and work equipment free of charge at the Provider's request.
Unless otherwise agreed, the customer shall provide for proper data backup and failure precautions for data and components (such as hardware, software) that are appropriate to their type and importance.
The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be indicated. Unless otherwise agreed, the relevant forms and procedures of the Provider shall be used for this purpose.
The Customer shall support the Provider in the examination and assertion of claims against other parties involved in connection with the provision of services appropriately upon request. This shall apply in particular to recourse claims of the Provider against upstream suppliers.
The contracting parties shall be obliged to maintain secrecy with regard to business secrets and other information designated as confidential (e.g. in documents, records, data files) which become known in connection with the performance of the contract and not to use or disclose such information beyond the purpose of the contract without the written consent of the other contracting party.
The respective receiving contractual partner is obliged to take appropriate confidentiality measures for business secrets and for information designated as confidential. The contractual partners shall not be entitled to obtain business secrets of the other contractual partner by observing, examining, dismantling or testing the subject matter of the contract. The same shall apply to other information or objects obtained during the performance of the contract.
Business secrets and other information designated as confidential may only be disclosed to persons who are not involved in the conclusion, implementation or execution of the contract with the written consent of the other contracting party.
Unless otherwise agreed, the obligation to maintain secrecy for other information designated as confidential shall end five years after the respective information becomes known, but in the case of continuing obligations not before their termination. Business secrets shall be kept secret for an unlimited period of time.
The contractual partners shall also impose these obligations on their employees and any third parties engaged.
The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, they will therefore not assert any claims based on the lack of encryption, except to the extent that encryption has been agreed upon in advance.
Disruptions in the provision of services
If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with deadlines (disruption), the deadlines shall be postponed by the duration of the disruption, if necessary including a reasonable restart phase. A contractual partner shall immediately inform the other contractual partner of the cause of a disruption occurring in its area and the duration of the postponement.
If the effort increases due to a malfunction, the Provider may also demand payment for the additional effort, unless the Customer is not responsible for the malfunction and its cause lies outside the Provider's sphere of responsibility.
If the customer can withdraw from the contract due to improper performance of the provider and / or claim damages instead of performance or claims such, the customer shall declare in writing at the request of the provider within a reasonable period of time whether he asserts these rights or wishes to continue the performance of the service. In the event of a withdrawal, the Customer shall reimburse the Provider for the value of any previously existing possibilities of use; the same shall apply to deteriorations due to use in accordance with the intended purpose.
If the Provider is in default with the provision of the service, the Customer's compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the contractual service that cannot be used due to the default for each full week of the default. The liability for default shall be limited to a maximum of 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply. This shall not apply if a delay is due to gross negligence or intent on the part of the Provider.
In the event of a delay in performance, the customer shall only have a right of withdrawal within the framework of the statutory provisions if the supplier is responsible for the delay. If the customer asserts a claim for damages or reimbursement of expenses in lieu of performance due to the delay, the customer shall be entitled to demand 1% of the price for the part of the contractual performance that cannot be used due to the delay for each full week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations, in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract shall apply.
Material defects and reimbursement of expenses
The provider warrants the contractually owed quality of the services. There shall be no claims for material defects for an only insignificant deviation of the Provider's services from the contractual quality.
Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment. The same shall apply in the event of non-reproducible software errors or software errors that can be proven by the customer. This shall also apply in the event of damage due to special external influences which are not assumed under the contract. Claims due to defects also do not exist in the case of subsequent modification or repair by the customer or third parties, unless this does not complicate the analysis and elimination of a material defect.
Clause 6 shall apply additionally to claims for damages and reimbursement of expenses.
The limitation period for material defect claims is one year from the statutory commencement of the limitation period. The statutory periods for recourse according to § 478 BGB remain unaffected.
The same shall apply insofar as the law pursuant to § 438 para. 1 No. 2 or § 634a para. 1 No. 2 BGB prescribes longer periods, in the event of an intentional or grossly negligent breach of duty on the part of the Supplier, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act.
The processing of a notice of material defect by the customer by the supplier only leads to the suspension of the statute of limitations, insofar as the legal requirements for this exist. This does not result in a new start of the limitation period.
A supplementary performance (new delivery or rectification of defects) can only have an influence on the limitation period of the defect triggering the supplementary performance.
Claims under a right of recourse in respect of contracts for digital products pursuant to Section 327u of the German Civil Code (BGB) shall remain unaffected by Clauses 4.1and 4.2.
If a customer asserts a possible claim against the customer, which may lead to a recourse claim, the customer shall immediately inform the provider about the asserted claim and the further information necessary and useful for its assessment. The Customer shall provide the Provider with the opportunity to satisfy the claim asserted by the Customer's customer, unless this is unreasonable for the Customer. The Customer and the Provider shall coordinate and cooperate with the aim of satisfying a justified claim of the Customer's customer as expensively and cost-effectively as possible.
The Provider may demand remuneration for its expenses to the extent that
it acts on a report without there being a defect, unless the customer could not reasonably have discovered that there was no defect, or
a reported malfunction is not reproducible or otherwise provable by the customer as a defect, or
additional expenses are incurred due to the Customer's failure to properly fulfill its obligations (see also Sections 2.2, 2.3, 2.4 and 5.2).
Legal defects
The Provider shall only be liable for infringements of third party rights by its performance insofar as the performance is used in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment of use without modification.
The Provider shall be liable for infringements of third party rights only within the European Union and the European Economic Area and at the place of contractual use of the service. Clause 4.1 sentence 1 shall apply accordingly.
If a third party asserts against the Customer that a service of the Provider infringes its rights, the Customer shall notify the Provider without delay. The Provider and, if applicable, the Provider's upstream suppliers shall be entitled, but not obligated, to defend the asserted claims at their own expense to the extent permissible.
The customer is not entitled to acknowledge claims of third parties before he has given the provider a reasonable opportunity to defend the rights of third parties in another way.
If the rights of third parties are infringed by a service of the Provider, the Provider shall, at its own discretion and at its own expense
provide the customer with the right to use the service or
make the performance non-infringing or
take back the service with reimbursement of the payment made for it by the customer (less reasonable compensation for use) if the provider cannot achieve any other remedy with reasonable effort.
The interests of the customer are given due consideration.
Claims of the Customer due to defects of title shall become statute-barred in accordance with Clause 4.2. Clause 6 shall apply additionally to claims for damages and reimbursement of expenses of the Customer; Clause 4.3 shall apply accordingly to additional expenses of the Provider.
General liability of the provider
The provider is always liable to the customer
for damages caused by him as well as his legal representatives or vicarious agents intentionally or by gross negligence,
in accordance with the Product Liability Act and
for damages resulting from injury to life, body or health for which the provider, its legal representatives or vicarious agents are responsible.
The Provider shall not be liable in the event of slight negligence, except insofar as the Provider has breached a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer may regularly rely.
This liability is limited to the contract-typical and foreseeable damage in the case of property damage and financial loss. This also applies to lost profits and savings. Liability for any other consequential damages is excluded.
For a single case of damage, liability shall be limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year, but not to less than € 50,000. Section 4.2 shall apply accordingly to the limitation period. The contracting parties may agree in writing on a more extensive liability upon conclusion of the contract, usually against a separate remuneration. Priority shall be given to an individually agreed liability sum. The liability according to clause 6.1 remains unaffected by this paragraph.
In addition and as a matter of priority, the liability of the Provider due to slight negligence arising from the respective contract and its execution for damages and reimbursement of expenses, irrespective of the legal grounds, shall be limited in total to the percentage of the remuneration agreed in this contract at the time of conclusion of the contract. The liability according to clause 6.1 b) remains unaffected by this paragraph.
The Supplier shall only be liable for damages under a guarantee if this was expressly assumed in the guarantee. In the case of slight negligence, this liability is subject to the limitations set out in section 6.2.
In case of necessary recovery of data or components (e.g. hardware, software), the Provider shall only be liable for the effort required for the recovery in case of proper data backup and failure precaution by the Customer. In the event of slight negligence on the part of the Provider, this liability shall only apply if the Customer has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This shall not apply if this is agreed as a service of the Provider.
Clauses 6.1 to 6.4 shall apply accordingly to claims for reimbursement of expenses and other liability claims of the Customer against the Provider. Clauses 3.3 and 3.4 shall remain unaffected.
Privacy
The Customer shall conclude with the Provider agreements necessary under data protection law for the handling of personal data.
Other
The customer shall be responsible for observing any import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges incurred. The customer shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.
German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
The provider renders its services on the basis of its General Terms and Conditions (GTC). The customer's GTC shall not apply, even if the provider has not expressly objected to them.
Acceptance of the services by the Customer shall be deemed to be acceptance of the Provider's GTC with waiver of the Customer's GTC.
Other terms and conditions shall only be binding if the Provider has accepted them in writing; the Provider's GTC shall apply in addition.
Amendments and supplements to this contract shall only be agreed in writing. Insofar as written form is agreed (e.g. for notices of termination, withdrawal), text form is not sufficient.
The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law shall be the registered office of the Provider. The Provider may also sue the Customer at the Customer's registered office. These GTC have been machine translated. The German version is the legal basis.
