General terms of contract
1. remuneration, payment, ancillary copyright, deadlines
1.1 Unless otherwise agreed, the remuneration shall be calculated on the basis of time and effort at the supplier's prices generally valid at the time of conclusion of the contract. Remunerations are always net prices plus statutory VAT. The Provider may invoice monthly. If services are remunerated on a time and material basis, the Provider shall document the nature and duration of the activities and shall send this documentation with the invoice.
1.2 All invoices shall be payable in principle within 14 calendar days of receipt free paying agent without deduction.
1.3 The Customer may only offset or withhold payments due to defects to the extent that he is actually entitled to payment claims due to material defects or defects of title of the service. Due to other claims based on defects, the customer may only withhold payments to a proportionate part taking into account the defect. Section 4.1 shall apply accordingly. The customer has no right of retention if his claim for defects has become statute-barred. Otherwise, the customer may only offset or exercise a right of retention with undisputed or legally established claims.
1.4 The Provider reserves the right of ownership and rights to be granted in respect of the services until the remuneration owed has been paid in full; justified retentions of defects pursuant to Section
1.5. sentence 2 shall be taken into account. Furthermore, the Provider shall retain title until all his claims arising from the business relationship with the Customer have been satisfied. The Provider is entitled to prohibit the Customer from further use of the services for the duration of the Customer's default in payment. This right can only be exercised for a reasonable period of time, usually a maximum of 6 months. This does not constitute withdrawal from the contract. § 449 para. 2 BGB remains unaffected. If the Customer or his customers return the services, the acceptance of the services does not constitute a withdrawal of the Provider, unless the Provider has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the Supplier. The customer may neither pledge nor assign by way of security objects under reservation of ownership or rights. The Customer shall only be permitted to resell the goods in the ordinary course of business as a reseller under the condition that the Customer has effectively assigned to the Supplier his claims against his customers in connection with the resale and that the Customer transfers the ownership to his customer subject to payment. By entering into this contract, Customer assigns by way of security its future claims against its customers in connection with such sales to Supplier, who hereby accepts such assignment. If the value of the security rights of the Supplier exceeds the amount of the secured claims by more than 20%, the Supplier shall release a corresponding portion of the security rights at the request of the Customer.
1.6 In the event of a permissible transfer of rights of use for deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.
1.7 If the customer does not settle a due claim in whole or in part by the contractual payment date, the provider can revoke agreed payment terms for all claims. Furthermore, the Provider is entitled to perform further services only against advance payment or against security by means of a performance bond issued by a credit institution or credit insurer licensed in the European Union. The advance payment shall cover the respective accounting period or - in the case of one-time services - their remuneration.
1.8 In the event of the Customer's economic inability to fulfill his obligations to the Provider, the Provider may terminate existing exchange contracts with the Customer by rescinding them, or terminate continuing obligations without notice by giving notice, even if the Customer files for insolvency. § 321 BGB and § 112 InsO remain unaffected. The Customer shall inform the Provider in good time in writing of any imminent insolvency.
1.9 Fixed performance dates shall be agreed exclusively in documented form. The agreement of a fixed performance date is subject to the proviso that the Provider receives the services of his respective suppliers in due time and in accordance with the contract.
2. cooperation, obligations to cooperate, confidentiality
2.1 Customer and provider each name 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 bring about all decisions related to the execution of the contract without delay. The decisions shall be documented in a binding manner.
2.2 The customer shall be obliged to support the provider to the extent necessary and to create all conditions necessary for the proper execution of the order in his business sphere. In particular, he shall provide the necessary information and, if possible, enable remote access to the customer system. If remote access is not possible for security or other reasons, the deadlines affected by this shall be extended appropriately; the contractual partners shall agree on an appropriate regulation for further consequences. Furthermore, the customer shall ensure 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 premises, the customer shall provide sufficient workplaces and work equipment free of charge at the provider's request.
2.3 Unless otherwise agreed, the customer shall ensure proper data backup and failure precautions for data and components (e.g. hardware, software) which are appropriate to their type and importance.
2.4 The customer shall report defects immediately in writing in a comprehensible and detailed form, stating all information useful for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the form of appearance and the effects of the defect shall be stated. Unless otherwise agreed, the Provider's forms and procedures shall be used for this purpose.
2.5 The Customer shall support the Provider in examining and asserting claims against other parties involved in connection with the provision of services in an appropriate manner upon request. This shall apply in particular to the provider's recourse claims against upstream suppliers.
2.6 The contracting parties shall be obliged to maintain secrecy with regard to business and trade secrets and other information designated as confidential which becomes known in connection with the performance of the contract. Such information may only be disclosed to persons who are not involved in the conclusion, execution or settlement of the contract with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information has become known, but in the case of continuous obligations, not before they have ended. The contractual partners shall also impose these obligations on their employees and any third parties employed.
2.7 The contractual partners are aware that electronic and unencrypted communication (e.g. by e-mail) entails security risks. In this type of communication, they will therefore not assert any claims based on the lack of encryption, unless encryption has been agreed upon beforehand.
3. disruptions in the provision of services
3.1 If a cause for which the Provider is not responsible, including strike or lockout, impairs compliance with the deadlines ("disruption"), the deadlines shall be postponed by the duration of the disruption, including an appropriate restart phase if necessary. One contractual partner shall inform the other contractual partner without delay of the cause of a disruption occurring in its area and the duration of the postponement.
3.2 If the expenses increase due to a disruption, the Provider may also demand compensation for the additional expenses, unless the Customer is not responsible for the disruption and the cause of the disruption lies outside its area of responsibility.
3.3 If the customer can withdraw from the contract due to improper performance by the provider and/or can claim damages instead of performance or claims such, the customer shall declare in writing within a reasonable period of time at the provider's request whether he asserts these rights or continues to wish to have the service performed. In the event of withdrawal, the Customer shall reimburse the Provider for the value of previously existing possibilities of use; the same shall apply to deterioration due to proper use. If the Provider defaults on the provision of services, the Customer's compensation for damages and expenses due to the default shall be limited to 0.5% of the price of the part of the contractual service that cannot be used due to the default for each completed week of the default. The liability for default shall be limited to a total of no more than 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, this shall be based on the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed 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.
3.4 In the event of a delay in performance, the customer shall only have the right to withdraw from the contract within the framework of the statutory provisions if the delay is attributable to the provider. If the customer justifiably claims damages or reimbursement of expenses instead of the service due to the delay, he shall be entitled to demand 1% of the price for the part of the contractual service which cannot be used due to the delay for each completed week of the delay, but in total no more than 10% of this price; in the case of continuing obligations, this shall be based on the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed at the time of conclusion of the contract shall apply.
4. material defects and reimbursement of expenses
4.1 The provider guarantees the contractually owed quality of the services. There shall be no claims for material defects in the event of only minor deviations of the services provided by the Provider 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, non-reproducible software errors or software errors that can otherwise be proven by the customer, or in the event of damage caused by special external influences that are not provided for under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless such modification or repair does not impede the analysis and elimination of a material defect. For claims for damages and reimbursement of expenses, Section 6 shall apply additionally.
4.2 The limitation period for claims for material defects shall be one year from the statutory start of the limitation period. The statutory periods for recourse according to § 478 BGB shall remain unaffected. The same shall apply insofar as the law prescribes longer periods in accordance with § 438 para. 1 No. 2 or § 634a para. 1 No. 2 BGB, in the event of an intentional or grossly negligent breach of duty by the Provider, in the event of fraudulent concealment of a defect as well as in cases of injury to life, body or health and for claims under the Product Liability Act. The processing of a notification of material defects of the customer by the provider only leads to an inhibition of the statute of limitations, as far as the legal requirements for this exist. This does not result in a new start of the limitation period. Subsequent performance (new delivery or rectification of defects) can only influence the statute of limitations of the defect triggering the subsequent performance.
4.3 The Provider may demand compensation for his expenses if a) he acts on the basis of a notification without a defect being present, unless the Customer was unable to recognize with reasonable effort that there was no defect, or b) a reported malfunction cannot be reproduced or otherwise proven by the Customer to be a defect, or c) additional expenses are incurred due to the Customer's failure to properly fulfill his obligations (see also Sections 2.2, 2.3, 2.4 and 5.2).
5. defects of title
5.1 The provider shall only be liable for violations of third party rights by his service if the service is used unchanged in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment. The Provider shall only be liable for infringements 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 shall apply accordingly.
5.2 If a third party asserts against the customer that a service of the provider infringes his rights, the customer shall notify the provider immediately. The provider and, if applicable, its suppliers are entitled, but not obliged, to the extent permissible, to ward off the asserted claims at their own expense. 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 a different way.
5.3 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, a) procure the Customer the right to use the service or b) render the service free from infringement or c) take back the service with reimbursement of the remuneration paid by the Customer for it (less a reasonable compensation for use), if the Provider cannot achieve any other remedy with reasonable effort. The interests of the customer shall be taken into account appropriately.
5.4 Claims of the customer due to defects of title shall become statute-barred in accordance with section 4.2. Section 6 shall apply additionally to claims for damages and reimbursement of expenses of the customer; section 4.3 shall apply accordingly to additional expenses of the provider.
6. general liability of the provider
6.1 The Provider shall always be liable to the Customer a) for damages caused by the Provider, its legal representatives or vicarious agents intentionally or through gross negligence, b) under the German Product Liability Act, and c) for damages resulting from injury to life, body or health for which the Provider, its legal representatives or vicarious agents are responsible.
6.2 The Provider shall not be liable in cases of slight negligence, except to the extent that the Provider has violated a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract or the violation of which endangers the achievement of the purpose of the contract and on the fulfillment 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 loss of profit and lack of savings. Liability for other remote consequential damages is excluded. For an individual 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 statute of limitations. The contractual partners may agree in writing on further liability upon conclusion of the contract, usually against separate remuneration. An individually agreed liability sum shall take precedence. The liability according to section 6.1 remains unaffected by this paragraph. In addition, and with priority, the liability of the Provider for slight negligence arising from the respective contract and its execution is limited to compensation for damages and expenses - irrespective of the legal grounds - in total to the percentage of the remuneration agreed in this contract and agreed at the time of conclusion of the contract. The liability according to section
6.1 b) remains unaffected by this paragraph.6.3 From a guarantee statement, the provider is only liable for damages if this was expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations set out in Clause 6.2.
6.4 In the event of necessary restoration of data or components (such as hardware, software), the provider shall only be liable for the expenditure required for the restoration in the event of proper data backup and provision for failure 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 has been agreed as a service of the provider.6.5 Items 6.1 to 6.4 shall apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against the provider. Sections 3.3 and 3.4 remain unaffected.
Data protectionThe customer will conclude agreements with the provider that are necessary under data protection law for the handling of personal data.
7.1 The Customer shall be responsible for observing any applicable import and export regulations for 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. The customer shall handle legal or official proceedings in connection with cross-border deliveries or services on its own responsibility, unless otherwise expressly agreed.
7.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
7.3 The provider shall provide his services on the basis of his General Terms and Conditions of Business (AGB). The customer's general terms and conditions shall not apply, even if the provider has not expressly objected to them. The acceptance of the services by the customer is considered as an acknowledgement of the provider's GTC with waiver of the customer's GTC. Other conditions are only binding if the provider has accepted them in writing; in addition, the provider's GTC shall then apply.
7.4 Changes and amendments to this contract shall only be agreed in writing. Insofar as written form is agreed (e.g. for cancellations, withdrawal), text form shall not be sufficient.
7.5 The place of jurisdiction for disputes with 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 can also sue the customer at the customer's registered office.