General terms and conditions
§ 1 Remuneration, Payment, Protection of Services, Deadlines
1.1 Unless otherwise agreed, remuneration is calculated on a time and materials basis at the provider's generally applicable prices at the time the contract is concluded. Remuneration is generally stated as net prices plus statutory value added tax.
The provider may invoice monthly. Where services are remunerated on a time and materials basis, the provider documents the type and duration of the activities and submits this documentation together with the invoice.
1.2 All invoices are generally payable without deduction, free to the paying agent, no later than 14 calendar days after receipt.
1.3 The customer may only set off or withhold payments on account of defects to the extent that it is actually entitled to payment claims due to material defects or defects of title in the service. On account of other claims for defects, the customer may only withhold payments in a proportion that is reasonable in view of the defect. Clause 4.1 applies accordingly. The customer has no right of retention if its claim for defects is time-barred. Otherwise, the customer may only set off or exercise a right of retention with claims that are undisputed or have been finally established by a court.
1.4 The provider retains title to the services and the rights to be granted until the remuneration owed has been paid in full; justified retentions for defects pursuant to clause 1.3 sentence 2 are taken into account. The provider further retains title until all of its claims arising from the business relationship with the customer have been fulfilled.
For the duration of the customer's default in payment, the provider is entitled to prohibit the customer from further use of the services. The provider may only assert this right for a reasonable period, as a rule for no more than 6 months. This does not constitute a withdrawal from the contract. Section 449 (2) of the German Civil Code (BGB) remains unaffected.
1.5 In the event of a permissible transfer of rights of use in deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.
1.6 If the customer fails to 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 provide further services only against advance payment or against security in the form of a performance guarantee from a credit institution or credit insurer licensed in the European Union.
1.7 If the customer is economically unable to fulfil its obligations towards the provider, the provider may terminate existing exchange contracts with the customer by withdrawal and continuing obligations by termination without notice, including in the event of an insolvency petition by the customer. Section 321 BGB and Section 112 of the German Insolvency Code (InsO) remain unaffected. The customer shall inform the provider in writing at an early stage of any impending insolvency.
1.8 Fixed performance dates shall only be agreed expressly and in documented form. The agreement of a fixed performance date is subject to the provider receiving the services of its respective suppliers on time and in accordance with the contract.
§ 2 Cooperation, Duties to Cooperate, Confidentiality
2.1 The customer and the provider each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider takes place via these contact persons. The contact persons shall make all decisions related to the performance of the contract without undue delay. The decisions shall be documented in a binding manner.
2.2 The customer is obliged to support the provider to the extent necessary and to create all conditions within its operational sphere that are required for the proper execution of the order. In particular, it shall provide the necessary information and, where possible, enable remote access to the customer system. If remote access is not possible for security or other reasons, the deadlines affected are extended appropriately; the contracting parties shall agree on an appropriate arrangement for any further effects. The customer shall also ensure that qualified personnel are available to support the provider.
2.3 Unless otherwise agreed, the customer shall ensure proper data backup and contingency planning for data and components (such as hardware and software) appropriate to their type and importance.
2.4 The customer shall report defects in writing without undue delay in a comprehensible and detailed form, stating all information useful for identifying and analyzing the defect. In particular, the work steps that led to the occurrence of the defect, the manner in which it appears and the effects of the defect shall be stated.
2.5 Upon request, the customer shall provide the provider with reasonable support in examining and asserting claims against other parties in connection with the provision of services.
2.6 The contracting parties are obliged to maintain confidentiality regarding trade secrets and other information designated as confidential (e.g. in records, documents, data sets) that become known in connection with the performance of the contract, and neither to use such information beyond the purpose of the contract nor to disclose it without the written consent of the other contracting party.
The receiving contracting party is obliged to take appropriate confidentiality measures for trade secrets and for information designated as confidential. Unless otherwise agreed, the obligation of confidentiality for other information designated as confidential ends five years after the respective information became known, but in the case of continuing obligations not before their termination. Trade secrets shall be kept confidential without time limit.
The contracting parties shall also impose these obligations on their employees and any third parties engaged.
2.7 The contracting parties are aware that electronic and unencrypted communication (e.g. by email) involves security risks. With this type of communication, they will therefore not assert any claims based on the lack of encryption, unless encryption has been agreed in advance.
§ 3 Disruptions in the Provision of Services
3.1 If a cause for which the provider is not responsible, including strikes or lockouts, impairs compliance with deadlines ("disruption"), the deadlines are postponed by the duration of the disruption, including a reasonable restart phase if necessary. A contracting party shall inform the other contracting party without undue delay of the cause of a disruption that has occurred in its area and of the duration of the postponement.
3.2 If the effort increases due to a disruption, the provider may also demand remuneration for the additional effort, unless the customer is not responsible for the disruption and its cause lies outside the customer's area of responsibility.
3.3 If the customer can withdraw from the contract and/or claim damages in lieu of performance due to improper performance by the provider, or claims to be able to do so, the customer shall, at the provider's request, declare in writing within a reasonable period whether it is asserting these rights or still wishes the services to be provided. In the event of withdrawal, the customer shall reimburse the provider for the value of previously existing possibilities of use; the same applies to deterioration resulting from intended use.
If the provider is in default with the provision of services, the customer's claim for damages and reimbursement of expenses due to the default is limited to 0.5% of the price for each completed week of default for the part of the contractual service that cannot be used due to the default. Liability for default is limited to a total of no more than 5% of the remuneration for all contractual services affected by the default.
3.4 In the event of a delay in performance, the customer only has a right of withdrawal within the framework of the statutory provisions if the provider is responsible for the delay. If the customer justifiably claims damages or reimbursement of expenses in lieu of performance due to the delay, it is entitled to claim 1% of the price for each completed week of delay for the part of the contractual service that cannot be used due to the delay, but no more than 10% of this price in total.
§ 4 Material Defects and Reimbursement of Expenses
4.1 The provider warrants the contractually owed quality of the services. There are no claims for material defects in the event of only an insignificant deviation of the provider's services from the contractual quality.
Claims for defects also do not exist in the event of excessive or improper use, natural wear and tear or failure of components of the system environment. The same applies to software errors that cannot be reproduced or otherwise demonstrated by the customer. This also applies to damage caused by special external influences that are not assumed under the contract. Claims for defects likewise do not exist in the event of subsequent modification or repair by the customer or third parties, unless this does not make the analysis and elimination of a material defect more difficult.
4.2 The limitation period for claims for material defects is one year from the statutory start of the limitation period. The statutory periods for recourse pursuant to Section 478 BGB remain unaffected. The same applies where the law prescribes longer periods pursuant to Section 438 (1) no. 2 or Section 634a (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, in cases of injury to life, body or health, and for claims under the German Product Liability Act.
4.3 Recourse claims under contracts for digital products pursuant to Section 327u BGB remain unaffected by clauses 4.1 and 4.2.
4.4 The provider may demand remuneration for its effort if it takes action on the basis of a report without there being a defect, if a reported disruption cannot be reproduced or otherwise demonstrated by the customer as a defect, or if additional effort is incurred due to the customer's improper fulfilment of its obligations.
§ 5 Defects of Title
5.1 The provider is only liable for infringements of third-party rights by its service to the extent that the service is used in accordance with the contract and, in particular, unchanged in the contractually agreed or otherwise intended operating environment. The provider is only 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.
5.2 If a third party asserts against the customer that a service of the provider infringes its rights, the customer shall notify the provider without undue delay. The provider and, where applicable, its suppliers are entitled but not obliged, to the extent permissible, to defend against the asserted claims at their own expense.
5.3 If a service of the provider infringes third-party rights, the provider shall, at its own discretion and expense, procure for the customer the right to use the service, make the service free of infringement, or take back the service against reimbursement of the remuneration paid for it by the customer if the provider cannot achieve any other remedy with reasonable effort.
5.4 The customer's claims due to defects of title become time-barred in accordance with clause 4.2.
§ 6 General Liability of the Provider
6.1 The provider is always liable to the customer
- for damage caused intentionally or through gross negligence by the provider or its legal representatives or vicarious agents,
- under the German Product Liability Act, and
- for damage resulting from injury to life, body or health for which the provider, its legal representatives or vicarious agents are responsible.
6.2 The provider is not liable for slight negligence unless it has breached a material contractual obligation, the fulfilment of which makes the proper performance of the contract possible in the first place, or the breach of which jeopardizes the achievement of the purpose of the contract, and on whose compliance the customer may regularly rely.
In the case of property damage and financial loss, this liability is limited to the damage that is typical for the contract and foreseeable. This also applies to lost profits and missed savings. Liability for other remote consequential damage is excluded.
For an individual case of damage, liability is limited to the contract value, and in the case of recurring remuneration to the amount of the remuneration per contract year, but not to less than €50,000.
6.3 Under a guarantee, the provider is only liable for damages if this has been expressly assumed in the guarantee. In the case of slight negligence, this liability is subject to the limitations pursuant to clause 6.2.
6.4 If data or components have to be restored, the provider is only liable for the effort that would be required for restoration if the customer had performed proper data backup and contingency planning.
6.5 Clauses 6.1 to 6.4 apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against the provider.
§ 7 Data Protection
The customer shall conclude with the provider the agreements required under data protection law for the handling of personal data.
§ 8 Miscellaneous
8.1 The customer shall independently comply with the 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 bears any customs duties, fees and other charges.
8.2 German law applies. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
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.
8.4 Amendments and additions to this contract shall only be agreed in writing. Where the written form has been agreed (e.g. for terminations, withdrawal), text form is not sufficient.
8.5 The place of jurisdiction in relation to a merchant, a legal entity under public law or a special fund under public law is the provider's registered office. The provider may also sue the customer at the customer's registered office.
Part B — Software as a Service (SaaS)§ 9 Services
9.1 The provider makes the contractual services, in particular access to the software, available within its sphere of control (from the data center's interface to the internet). The scope of services, the quality, the intended use and the conditions of use of the contractual services are set out in the respective service description and, in addition, in the software's user manual.
9.2 Services going beyond this, such as the development of customer-specific solutions or necessary adaptations, require a separate contract.
9.3 The provider may provide updated versions of the software. The provider will inform the customer electronically about updated versions and corresponding instructions for use and make them available accordingly.
§ 10 Scope of Use
10.1 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 by means of telecommunication (via the internet) and use the functionalities associated with the software in accordance with the contract by means of a browser or another suitable application. The customer does not receive any further rights, in particular to the software or to any infrastructure services provided in the respective data center. Any further use requires the provider's prior written consent.
10.2 In particular, the customer may not use the software beyond the agreed scope of use, have it used by third parties or make it accessible to third parties. In particular, the customer is not permitted to reproduce, sell or provide the software or parts thereof for a limited period of time, to rent it out or to lend it.
10.3 The provider is entitled to take appropriate technical measures to protect against use that is not in accordance with the contract. The contractual use of the services may not be impaired by this more than insignificantly.
10.4 In the event that a user exceeds the scope of use in breach of contract or in the event of unauthorized provision for use, the customer shall, upon request, provide the provider without undue delay with all information available to it for asserting claims due to the use in breach of contract, in particular the name and address of the user.
10.5 The provider may revoke the customer's access authorization and/or terminate the contract if the customer significantly exceeds the use permitted to it or violates provisions for protection against unauthorized use. As a rule, the provider must first set the customer a reasonable grace period to remedy the situation.
10.6 The provider's claim to remuneration for use exceeding the agreed use remains unaffected.
10.7 The customer is entitled to have its access authorization and access possibility restored after it has proven that it has ceased the use in breach of contract and prevented future use in breach of contract.
§ 11 Availability, Defects in Performance
11.1 The availability of the services provided is set out in the service description.
11.2 In the event of only an insignificant reduction in the suitability of the services for contractual use, the customer has no claims on account of defects. The provider's no-fault liability for defects that already existed at the time the contract was concluded is excluded.
11.3 Section 578b BGB remains unaffected.
§ 12 Data Protection
12.1 Insofar as the provider can access personal data of the customer or from its sphere, it acts exclusively as a processor and will process and use this data only for the performance of the contract. The provider will follow the customer's instructions for handling this data. The customer will agree with the provider on the details of the provider's handling of the customer's data in accordance with the requirements of data protection law.
12.2 The customer remains the controller both generally in the contractual relationship and in terms of data protection law. If the customer processes personal data (including collection and use) in connection with the contract, it warrants that it is entitled to do so under the applicable provisions, in particular those of data protection law, and indemnifies the provider against third-party claims in the event of a violation.
12.3 Towards the data subject, the customer bears responsibility for the processing of personal data, except insofar as the provider is responsible for any claims of the data subject due to a breach of duty attributable to the provider.
12.4 Unless otherwise agreed, the provider ensures that the customer's data is stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area.
§ 13 Obligations of the Customer
13.1 The customer shall protect the access authorizations and identification and authentication information assigned to it or to the users against access by third parties and shall not pass them on to unauthorized persons.
13.2 The customer is obliged to indemnify the provider against all third-party claims due to infringements of rights that are based on unlawful use of the subject matter of the service by the customer or that occur with its approval. If the customer recognizes or must recognize that such a violation is imminent, it is obliged to inform the provider without undue delay.
13.3 The customer shall use the options provided by the provider to back up its data within its own original area of responsibility.
§ 14 Use in Breach of Contract, Damages
For each case in which a contractual service is used without authorization within the customer's area of responsibility, the customer shall pay damages in the amount of the remuneration that would have been incurred for contractual use within the minimum contract term applicable to this service. The customer reserves the right to prove that it is not responsible for the unauthorized use or that no damage or significantly less damage has occurred. The provider remains entitled to claim further damages.
§ 15 Incident Management
15.1 The provider will accept incident reports from the customer, assign them to the agreed incident categories and, on the basis of this assignment, carry out the agreed measures for analyzing and resolving incidents.
15.2 During its usual business hours, the provider will accept proper incident reports from the customer and assign each of them an identifier. Upon request, the provider confirms receipt of an incident report to the customer, stating the identifier assigned.
15.3 Unless otherwise agreed, after an initial review the provider will assign incident reports received to one of the following categories:
- Critical incident: The incident is based on an error in the contractual services that makes use impossible or only possible with severe restrictions. The customer cannot reasonably work around this problem and therefore cannot complete tasks that cannot be postponed.
- Other incident: The incident is based on an error in the contractual services that restricts the customer's use more than insignificantly, without constituting a critical incident.
- Other report: Incident reports that do not fall into categories a) and b) are assigned to other reports.
15.4 In the case of reports of critical incidents and other incidents, the provider will, without undue delay and on the basis of the circumstances reported by the customer, initiate appropriate measures to first locate the cause of the incident. The provider will provide the customer without undue delay with any measures available to it for working around or resolving an error.
§ 16 Point of Contact (Hotline)
16.1 The provider sets up a point of contact for the customer (hotline). This point of contact handles the customer's inquiries in connection with the technical requirements and conditions for using the software provided and regarding individual functional aspects.
16.2 The hotline accepts inquiries by email and phone during the provider's usual business hours. The hotline will process proper inquiries in the ordinary course of business and answer them as far as possible.
§ 17 Contract Term and Termination
17.1 The contract is concluded for a minimum term of twenty-four (24) months from the date of conclusion of the contract (hereinafter "minimum term"). During the minimum term, ordinary termination is excluded for both parties, unless clause 17.2 provides otherwise.
17.2 If the provider grants the customer a free trial period, the customer may terminate the contract by ordinary termination at any time during this trial period without observing a notice period. Termination may in particular be declared via the payment portal provided by the provider or in text form (e.g. by email). If the trial period expires without timely termination, the minimum term pursuant to clause 17.1 begins; the duration of the trial period is not counted towards the minimum term.
17.3 The contract may be terminated by ordinary termination with a notice period of three (3) months to the end of the minimum term. If no timely termination is made, the contract continues for an indefinite period after the end of the minimum term and may be terminated by ordinary termination by either contracting party with a notice period of one (1) month to the end of a calendar month.
17.4 The right of each contracting party to extraordinary termination for good cause (Section 314 BGB) remains unaffected.
17.5 To be effective, every notice of termination requires the written form; this does not apply to termination during the free trial period pursuant to clause 17.2, for which use of the payment portal or text form (e.g. by email) is also sufficient. Clause 8.4 applies.
17.6 The provisions of clauses 17.1 to 17.3 apply exclusively in business-to-business transactions, i.e. towards entrepreneurs within the meaning of Section 14 BGB, legal entities under public law and special funds under public law.
17.7 The customer shall back up its data independently and in good time before the contract ends (for example by downloading it). Upon request, the provider will support the customer in doing so. As a rule, the customer will no longer have access to this data after the contract has ended, if only for reasons of data protection law.
Part C — Services§ 18 Subject Matter of Services
18.1 The provider provides the service in accordance with the conditions agreed in the contract and below against the contractually agreed remuneration. The customer bears responsibility for the project and its success. The provider provides the service in accordance with the principles of proper professional practice.
18.2 The subject matter of the contract may consist of a one-time service, which may also be provided in parts, or may be designed to be ongoing.
§ 19 Performance of the Service
19.1 Unless otherwise agreed, the place of performance is the provider's registered office.
19.2 The provider provides the service through suitable employees. The customer is not entitled to have the service provided by specific employees of the provider.
19.3 Unless otherwise agreed, the provider determines the manner in which the service is provided.
19.4 The customer has no right to issue instructions to the provider's employees involved in providing the service.
19.5 If the provider has to present the results of the service in writing, only the written presentation is authoritative.
§ 20 Customer's Duties to Cooperate
20.1 The customer shall ensure that the contact person it has named provides the provider with the documents, information and data required for the provision of the service completely, correctly, on time and free of charge, unless these are owed by the provider. The provider may assume that these documents, information and data are complete and correct, unless it recognizes or must recognize that they are incomplete or incorrect.
20.2 For this purpose, the customer shall monitor the provision of the service by the provider.
§ 21 Rights of Use in Service Results
21.1 Unless otherwise agreed, the provider grants the customer the non-exclusive and non-transferable right to use the service results that the provider has produced under the contract and handed over to the customer permanently for its own internal purposes within the scope of the intended use assumed in the contract.
21.2 Otherwise, all rights remain with the provider.
21.3 The provider may revoke rights of use granted to the customer if the customer violates restrictions on use or other provisions for protection against unauthorized use to a not insignificant extent. The provider must first set the customer a grace period to remedy the situation.
§ 22 Term of Services
22.1 If the contract has been concluded for an indefinite period, it may be terminated with a notice period of 3 months to the end of a calendar year. This termination is possible for the first time at the end of the calendar year following the conclusion of the contract.
22.2 The right to extraordinary termination for good cause remains unaffected.
22.3 Notices of termination are only effective in writing.
22.4 Withdrawal from the contract is excluded.
§ 23 Remuneration for Services
23.1 Unless otherwise agreed, the provider may increase the remuneration no earlier than 12 months after conclusion of the contract if the increased remuneration corresponds to the provider's current list price. Further increases may be made no earlier than 12 months after a previous increase has taken effect. An increase takes effect 3 months after it has been announced.
The customer has a right of termination if the remuneration rates increase by more than five percent.
23.2 Agreed records of effort are deemed approved unless the customer objects in detail and in writing within 21 days of receipt and the provider has pointed out the deemed approval in the record of effort.
23.3 Unless otherwise agreed, travel costs and expenses as well as other expenses are reimbursed in accordance with the provider's price list. Travel time counts as working time.
§ 24 Irregularities in the Performance of Services
24.1 If the service is not provided in accordance with the contract and the provider is responsible for this (irregularity in performance), the provider is obliged to provide the service in whole or in part in accordance with the contract within a reasonable period without additional costs for the customer, unless this is only possible with disproportionate effort.
This obligation of the provider only exists if the customer gives notice of the irregularity in performance in writing and without undue delay, but no later than two weeks after becoming aware of it, unless otherwise agreed.
24.2 Clause 6 applies to any further claims for reimbursement of expenses and damages.