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english|DE

GENERAL TERMS AND CONDITIONS.

 

A) General information, scope and terminology

1. The following Terms and Conditions apply to all service and delivery contracts as well as obligations arising from the inception of contractual negotiations, in-itiation of contracts or similar commercial contacts with companies, corporate bodies under public law or special funds under public law (hereinafter referred to as “Customer”). These Terms and Conditions also apply to future contracts and commercial contacts according to the full-text version provided to Customer at the latest when the obligation is established.
2. Our Terms and Conditions apply exclusively; Customer terms that differ from or supplement them in a manner unfavourable to us do not apply even if we do not explicitly object to them.
3. Contractual content consists solely of written agreements; no ancillary agree-ments have been made. Contractual amendments or additions are only valid with our written confirmation.
4. In cases of continuing obligation, Customer will be notified in writing of any chang-es to provisions and provided with a reference to the affected provisions. These changes are considered accepted by Customer if Customer proceeds with the continuing obligation without objecting within an appropriate period of time.
5. Unless otherwise indicated, “Goods” are defined as items contractually owed to Customer, including software, even when provided by intangible means, e.g. through electronic transmission.

 

B) Offer, offer documents, cost estimate, assumptions, follow-up offers

1. Our offers are subject to change. Customer offers are considered accepted upon written confirmation by us, e.g. through an order confirmation or invoice for ad-vance payment, or upon performance of the delivery or service.
2. We reserve ownership of and copyright to all documents provided to Customer, in particular storage media, documentation, images, drawings and calculations; they may not be used for any non-contractual purpose, nor made available to any third party. They must be returned to us postage paid as soon as the contract ends or their contractual purpose is fulfilled. This applies in particular to documents and information designated as confidential. We are entitled at any time to request that documents be returned if their confidentiality is deemed to be at risk.
3. Customer is required to carefully verify the accuracy and adequacy of our offer. This applies in particular to project offers containing specific assumptions that we have used in our calculations and service descriptions, and which are designated as such in the offer. Customer must inform us of any inaccurate assumptions so that we can revise the offer.
4. We are entitled to subcontract.
5. Any costs incurred while preparing a cost estimate requested by Customer must be reimbursed by Customer according to the time spent preparing it.

 

C) Quality of Goods or services

1. Our Goods are intended exclusively for use by Customer as defined in Section A(1). Customer must advise us if it intends to supply Goods purchased from us to a con-sumer, or to a third company that in turn intends to supply Goods to a consumer.
2. Specifications in any of our publications, such as catalogues, brochures, newslet-ters, announcements, images, advertisements or price lists, are only considered as quality components insofar as they are included in the contract. Any public statements by third-party manufacturers or their agents are only considered as quality components if they are included in the contract or if we have expressly and publicly adopted them in writing.
3. We reserve the right to make standard technical modifications, particularly im-provements, up until delivery, provided that quality is not significantly altered nor the interests of Customer unreasonably impaired.
4. Statements regarding quality or durability of Goods or services do not consti-tute a guarantee within the meaning of Section 276(1) of the German Civil Code (BGB), nor do they constitute a guarantee (warranty) within the meaning of Sec-tion 443 BGB unless we expressly provide such a guarantee in writing. Any guar-antee provided by a third-party manufacturer of a product will be passed on to Customer; the scope of such a manufacturer’s guarantee is determined by the third-party manufacturer’s warranty terms and conditions.
5. If Goods are custom-made or modified to Customer specifications, we are not required to inspect these specifications unless obligated to do so under a special agreement. Customer is not entitled to claim defects arising from such require-ments or from third-party hardware or software used by Customer.

 

D) Additional provisions regarding software quality

1. Unless expressly agreed otherwise, the contractually covered software is standard software, i.e. not custom-made for Customer’s needs. Software delivery contracts are thus considered as purchase contracts. The Parties agree that, under the current state of technology, it is impossible to develop standard software which functions flawlessly under all conditions of use.
2. Unless agreed otherwise, software will be delivered in a version compatible with the current versions of Microsoft Windows operating systems.
3. The manufacturer’s original user documentation will be provided for all third-party standard software. We are not required to deliver any additional documentation beyond this. If requested, Customer may consult the original user documentation before entering into the contract. In addition, documentation is delivered in the form of the software’s online help resources. Customer may request more exten-sive written documentation before entering into the contract, for which we will then submit an offer.
4. We are required to provide the object code of purchased software via storage media. Customer is not entitled to request provision or disclosure of the software source code.
5. If we are required to install software, Customer must ensure that the hardware and system-environment requirements indicated, particularly regarding network connections and all cabling, are met prior to installation.
6. If we will be delivering hardware, Customer must ensure an appropriate hardware and software environment for any hardware or software—whether proprietary or purchased from another supplier—that we will be connecting to it.
7. Customer is responsible for setting up appropriate monitor workstations and en-suring their compliance with legal workplace-safety regulations; this is neither owed nor will it be verified by us.
8. Customer will ensure the presence of competent, trained employees during trial use and installation, and, if necessary, suspend other work on the computer sys-tem. Customer is responsible for backing up all its data prior to each installation.

 

E) Usage rights

1. Usage rights are transferred to Customer only upon full payment. Any usage grant-ed prior to full payment may be revoked at any time.
2. The manufacturer’s terms of use apply for standard software and other copyright-ed material. Such terms of use will be provided to Customer upon request, even before the contract is entered into. Unless stated otherwise in the manufacturer’s terms of use or in terms of use agreed between us and Customer, the following terms of use apply.
3. Unless agreed otherwise, Customer receives non-exclusive, non-transferable per-mission to use the software for an indefinite period of time. Customer is not permit-ted to grant usage rights to any third party. Usage is limited to a single computer unless a network licence (multi-user licence) is purchased. Software must be fully erased from any hardware being replaced by new hardware. Software may not be installed on multiple hardware units at the same time, whether for storage, use or to keep on hand.
4. In the case of network licences, usage rights are granted for the agreed work-stations within the contractually specified local network. Customer is required to prevent any usage by a third party.
5. Unless required otherwise by law, Customer is not authorised to duplicate, distrib-ute, make publicly available, lease, modify or edit software or any written docu-mentation provided.
6. Copyright and registration information, particularly software registration codes, may not be removed or altered.
7. We are authorised, without prejudice to other rights, to demand a contractual pen-alty determined on a case-by-base basis in accordance with Section 315 BGB for each case in which Customer culpably violates the above provisions. The amount of the contractual penalty may be reviewed by the competent court.
8. Third parties as defined in Section E include Customer affiliates as well as geo-graphically or organisationally separate entities, such as branch offices.

 

F) Prices, Remuneration

All prices are quoted ex works in euros (EUR), including original packaging but excluding shipping, insurance and packaging costs, as well as the VAT applicable at the time of delivery.

2. Our list prices or usual prices apply unless stated otherwise in the order confirma-tion.
3. For delivery periods or continuing obligations lasting longer than six weeks, we are entitled to pass on to Customer any increase in procurement, delivery or personnel costs (wages, non-wage labour costs) arising in the meantime by raising the af-fected prices enough to offset the increased costs.
4. In the case of a contract to produce a work under which we are the Party pro-ducing the work, if Customer terminates said contract in accordance with Sec-tion 649 BGB before performance has started, we are entitled to 5% of the agreed total remuneration. We are entitled to claim a higher, appropriate amount of remu-neration.
5. If, after entering into the contract, we find any assumptions made in the offer and subsequently adopted in the contract to be inaccurate (see Section B(3)), Customer is required to remunerate any additional work at the agreed rates or our usual rates if we do not submit a follow-up offer.
6. Any multi-use pallets used to deliver Goods will be exchanged according to the following provisions. Upon delivery of palletised Goods, Customer must return an equal number of exchangeable pallets of the same type and quality, or deliver them to us carriage paid within one month. Exchangeability is determined by UIC leaflet 435- 4 (International Union of Railways). According to regulations, transferred pal-lets become the property of the recipient; they must be compensated with pallets of the same type and quality. If pallets are not returned on time, if they are not exchangeable, or if they are not of the same type and quality, we are entitled to invoice Customer for the price of new pallets. Customer is free to provide evidence supporting an “old-for-new” deduction or lower loss amount.


G) Terms of payment

1. Customer consents to receiving electronic invoices, which we may submit through an authorised representative. Unless agreed otherwise, invoices will be sent to the default address, fax number or e-mail address indicated by Customer.
2. Payment is due in full immediately unless otherwise indicated in the order confir-mation or these Terms and Conditions. If no payment due date is set, the applicable legal provisions will determine when payment is considered overdue.
3. Payments are considered on time if funds are available to us by the payment due date. Cheques or bills of exchange count towards payment—in the amount corresponding to the full value minus all expenses—only once they have been redeemed. We are not required to redeem cheques or bills of exchange by the payment due date.
4. We are entitled to apply Customer’s payment to the oldest outstanding invoice even if Customer has specified its appropriation.

 

H) Right of set-off, right of retention, assignment, partial performance

1. Customer may set off only those receivables which are undisputed or have been established with legal effect. Rights of retention may only be exercised by Cus-tomer in the case of undisputed or legally established receivables arising from the same legal relationship.
2. Entitlements against us may not be assigned unless Section 354a of the German Commercial Code (HGB) applies.
3. Partial delivery, partial performance and the corresponding invoicing are permitted if this is not unreasonable for Customer.

 

I) Delivery, transfer of risk

1. All deliveries are made ex-works. We assume no responsibility for the cheapest shipping method.
2. Except in cases where the location of performance and success is the recipient’s location, the risk of loss or damage is transferred from the commissioned deliv-ery-person to Customer at the time of delivery, even if we deliver the shipment ourselves and regardless of how transport costs have been agreed.
3. We will obtain transport insurance for the delivery at Customer’s expense if re-quested prior to shipment.

 

J) Supplier-delivery proviso, obstacles to performance, default of acceptance

1. We procure hardware and standard software from suppliers. Consequently, we may withdraw from the contract if, despite having placed orders with suppliers covering the exact extent of Customer’s order, we receive deliveries late or deliveries are incorrect.

2. The performance period is extended accordingly if any obstacles to performance arise for which we are not responsible. This applies in particular to defective or missing deliveries made to us (see Paragraph 1), force majeure, war, natural dis-asters, traffic disruptions, disrupted operations, obstructed imports, energy and raw material shortages, government action, labour conflicts and breach of coop-eration obligations by Customer. We are entitled to withdraw from the contract if the performance obstacle continues with no foreseeable end and the purpose of the contract is jeopardised. In the absence of a general withdrawal right, Customer may withdraw from the outstanding part of the contract if the performance obsta-cle lasts longer than two months.
3. The performance period is also extended while the Parties negotiate changes to performance, or while we draft a follow-up contract should assumptions made in our offer and adopted in the contract be found to be inaccurate.
4. Performance of our delivery obligation is subject to the timely and proper fulfilment of Customer’s obligations.
5. If Customer does not accept Goods within the time stipulated, we are entitled, without prejudice to any other rights, to grant Customer an appropriate grace pe-riod; once this grace period has expired, we may do with Goods as we see fit and set a new delivery period. We may claim 10% of the agreed price (excluding VAT) as compensation for damages without providing evidence, unless it can be proven that actual damages were significantly less. We reserve the right to claim actual damages if these are higher.

 

K) Risk of default

1. If, after entering into the contract, we find that Customer may be unable to perform consideration, Customer must provide security for its consideration if no advance performance has been stipulated. If our contractual obligation consists of pro-ducing a work, rendering a service or delivering products specifically procured for Customer and difficult to sell otherwise (i.e. not commonly in demand), we may require Customer, at our option, to pay in advance an amount equal to our procurement costs or 50% of Customer’s consideration (with security provided for the remaining amount).
2. In addition, Section 321 BGB applies with the proviso that we may, even if other claims arising from the same legal relationship are jeopardised within the meaning of Section 273 BGB, refuse performance.
3. If payment by instalments has been agreed and if Customer is wholly or partial-ly in arrears with at least two consecutive instalments, the remaining receivable amount will become due in full. Any deferral agreements become invalid if Cus-tomer defaults on performance or if the conditions of Section 321 BGB are met with respect to a receivable.

 

L) Retention of title

1.  We reserve the right to retain ownership of all objects delivered by us until all payments from the entire commercial relationship have been made. In derogation from Section 449(2) BGB, we are entitled to demand, without withdrawing from the contract, that objects be returned if Customer fully or partially defaults on the purchase price.
2.  Customer is required to treat with care the purchased item or any objects wholly or jointly owned by us in accordance with Section K. In particular, Customer is required, at its own expense, to sufficiently insure such items for replacement cost against fire, water damage, theft and vandalism. Any required maintenance and inspections must be carried out in a timely manner at Customer’s expense.
3. Customer must notify us immediately in writing in the event of an attachment or other third-party intervention so that we can file a court action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the intervening third party is unable to reimburse the judicial and extrajudicial costs incurred for a court action filed in accordance with Section 771 ZPO, Customer will be held liable for our loss.
4. Customer is entitled to further process or resell delivered items within the ordinary course of its business. If Goods subject to retention of title are further processed by Customer, we (as the producer) benefit from this processing and gain ownership of the new object; if such processing involves materials from multiple owners or if the final product has a higher value than the Goods subject to retention to title, we will gain joint ownership of the new object in proportion to the value of the Goods subject to retention with respect to the new object. In the event that we should not gain such ownership, Customer transfers future ownership (or joint ownership in the proportion described above) to us at the present time. If the object delivered is combined or inseparably mixed with other objects to form a uniform object, and if one of the other objects is to be considered as the main object, we will (insofar as we own the main object) grant Customer joint ownership of the uniform object in the proportion described in Sentence 1. In the event of a resale, Customer assigns to us, at the present time, all receivables in the amount of the final invoice sum, including VAT, owed to Customer by its customer or a third party on account of the resale. Customer is authorised to collect the receivable even after the assignment, provided Customer has made the necessary arrangements to transfer collected payments to us and provided that none of the conditions in the provision on default risk (Section 321 BGB) materialise. Our right to collect payment ourselves remains unaffected. Upon request by us, Customer must disclose the assignment and pro-vide us with the documents and information required to claim the receivable.

5. Upon request by Customer, we undertake to release security due to us upon request by Customer insofar as its value exceeds the corresponding receivable by more than 20%. We reserve the right to choose which security to release.

 

M) Limitation of liability

1. Recognition of limitations of liability

We are not liable for ordinary negligence by our governing and supervisory bodies, legal representatives, employees or other agents. These limitations of liability do not apply to:

1.1. Damages arising from injury to life, limb or health due to negligent breach of obligation or worse,

1.2. Other damages arising from grossly negligent (or worse) breach of obligation, or negligent breach (or worse) of material contractual obligations (obligations whose fulfilment is indispensable to the proper performance of the contract and on whose fulfilment the other contractual Party may rely as a matter of course),

1.3. Damages falling under the scope of protection regarding guarantees (Section276(1) BGB) or warranties (guarantee, Section 443 BGB) provided by us.

1.4. Claims arising under the German Product Liability Act (ProdHaftG).

2. Amount of limitations of liability

With the exception of the cases described in Sections M(1.1, 1.3 and 1.4) above, our liability for ordinary negligence or grossly negligent action by agents of ours who are neither legal representatives nor senior executives (ordinary agents) is limited to the damages typically expected at the time the contract is entered into and, in the case of compensation for futile expenses, to the amount of positive interest. In the event of data loss through ordinary negligence, we are liable only for the costs that would be required to recover data that was properly and regularly backed up by Customer.

3. Liability arising from pre-contractual obligations and commercial contacts

Section M also applies to Customer’s entitlement to damages with respect to obligations arising from the inception of contractual negotiations, initiation of contracts or similar commercial contacts. If a contract is signed between Customer and us, Customer waives all entitlements outside the scope of liability described in Section M at the present time.

4. Tortious claims

Section M also applies to tortious claims made by Customer.

5. Limitation of liability for the benefit of third parties

The liability exclusions and limitations described in Section M also apply to the personal liability of employees, representatives and agents.

6. Without prejudice to Section N(6), Customer’s other entitlements to damages and compensation of futile expenses lapse after one (1) year. This does not apply to entitlement for damages for injury to life, limb or health. Moreover, it does not apply to Customer’s entitlements under ProdHaftG or in the case of guarantees (Section 276(1) BGB) or warranties (guarantee, Section 443 BGB), nor to its entitlements to other damages arising from intentional or grossly negligent breach of obligation.

7. Indemnity against third-party claims

Customer indemnifies us against all claims made by Customer’s agents or other third parties deployed by Customer that exceed the scope of liability described in Section M; this includes claims arising from pre-contractual obligations and commercial contacts.


N) Customer entitlement in cases of material or legal defects

1. Obligation to inspect and report. Customer’s rights in cases of material defect are subject to its obligation to properly inspect Goods and notify us of defects (Section 377 HGB).

2. Material defects in pre-owned items. Customer’s rights with respect to material defects do not extend to pre-owned Goods. This does not apply to any entitlement to damages or entitlements under a guarantee (Section 276(1) BGB) or warranty (guarantee, Section 443 BGB) provided by us, or if we fraudulently concealed the defect (Section 444 BGB).

3. Re-delivery. We are entitled to cure the defect at our option by repairing the defect or delivering a defect-free item (re-delivery). If re-delivery is unsuccessful, Customer may request a price reduction. Alternatively, as long as the defect does not involve building work, Customer may choose to withdraw from the contract.Any obligation on our part to bear the costs required for re-delivery, in particular costs relating to work, material, transport and the provision of transport routes, is excluded in all cases insofar as expenses increase because the item purchased was transported, after delivery, to a location other than the residence or business establishment of the recipient, unless such transport is required for the proper use of the item. Customer’s right under Section 439(3)1 BGB to demand the expenses required to remove the defective item and install or affix the repaired or re-delivered item is limited to an amount equal to 150% of the item’s purchase price in defect-free condition or 200% of the price reduced due to the defect. Customer’s right to damages and compensation for recourse expenses (Section 478(2) BGB) remains unaffected by the provision in this Paragraph.

4. Material defects of delivered hardware and software

a) In derogation to Paragraph 3 above, where third-party hardware or standard software is delivered or where third parties are hired to perform maintenance services, we may, for the purpose of repairing the defect or delivering a defect-free item, assign our corresponding entitlements against our suppliers, the manufacturer or other third parties to Customer. In this case, before Customer can exercise its right to claim re-delivery by us, compensation for self-help expenses, damages in lieu of performance, contract withdrawal or a price reduction, it must first claim

re-delivery, damages or compensation for self-help expenses from our supplier or the manufacturer, if necessary by judicial means, unless this is unreasonable for Customer. If, in doing so, Customer incurs costs for which it is not able to exact payment despite legal enforcement, we are required to compensate Customer for them.

b) The above also applies if we have customised, configured or otherwise altered the software or hardware to meet Customer’s needs, unless the material defect was caused by our performance.

5. Tampering by Customer. Customer forfeits its entitlement with respect to defects if it tampers with Goods, in particular with the programme code, in any way that is not expressly authorised in the contract, operating manual or other user manuals, unless Customer can explain and prove that the defect was not caused by its tampering.

6. Defect-related entitlement will lapse unless this is excluded under the following terms: Statutory provisions governing the time-limit of entitlements will apply in cases of intentional or grossly negligent breach of obligation; fraudulent concealment of a defect; entitlements arising from injury to life, limb or health; entitlement under ProdHaftG or a guarantee (Section 276(1) BGB) or warranty (Section 443 BGB); or if we have fraudulently concealed the defect (Section 444 BGB). All of Customer’s

other defect-related entitlements lapse after one (1) year. This also applies to entitlements relating to legal defects, with the following exception: without prejudice to Sentence 1, entitlement lapses after five (5) years if the defect which gave rise to it consists of the fact that a third party has a real right to the purchased item and that, consequently, the return of this item may be demanded by virtue of this right.


O) Customer cooperation in the event of defects

1. In the event of a repair, Customer must provide us with the information required to diagnose and resolve the fault(s), if necessary upon request. For repairs involving remote data transmission or telephone communication, Customer must provide a trained, competent employee to help. For on-site repairs, we must be given unobstructed access to the defective Goods and, if necessary, other work on Customer’s hardware or network must be suspended.

2. Customer is required to provide a sufficiently detailed description of the hardware or software defect to reproduce the defect.

3. If Customer claims its right to re-delivery by us, and it is subsequently found that the claim is unsubstantiated (e.g. user error, improper handling of Goods, absence of defect), Customer is required to reimburse us for all costs incurred by the inspection of Goods and re-delivery, unless Customer is not responsible for making the claim.

4. If a system outage is caused by us, we will recover the data using the latest data backup performed by Customer before the outage. Customer must provide the corresponding data in a machine-readable format.

5. Customer must inform us immediately if a claim is made against Customer for the violation of a third party’s rights, or if an injunction against further use of the delivered item has been issued against Customer.

 

P) Partial performance

If we receive only partial performance by a third-party hardware or standard-software manufacturer, Customer’s interest remains unaffected if we provide re-delivery (through our own means) that is deemed reasonable to Customer. Hotline services are considered an acceptable re-delivery in cases involving documentation.

 

Q) Right of return

Customer does not have a contractual right to return Goods unless we expressly grant Customer such a right in writing. Such rights of return apply only to physical objects, in other words not to software delivered through intangible means (i.e. not on CD or DVD). In no case is Customer entitled to demand a right of return. Goods returned without a right of return having been agreed in advance will be rejected without exception. Any

right of return granted to Customer by us applies only to Goods that have already been paid for. Goods that were custom-made, configured, adapted or processed; promotional and clearance Goods; Goods that are clearly marked as discontinued or in the process of being discontinued; and Goods that otherwise differ from the current series standard are categorically excluded from any right of return. Any right of return lapses at the latest two weeks after Goods were received, and can be exercised effectively only if

returned Goods are received by us before expiry of the return period.

1. Software must be unopened in its original packaging, including storage media and accompanying documentation.

2. Hardware, including accessories, documentation and the full, unaltered original packaging must be returned in as-new condition, without any damage.

Customer is responsible for the cost and risk of returning Goods. Acting in its own interest, Customer must choose the most secure means of delivery and ensuring adequate insurance. Partial returns are subject to a separate agreement.


R) Hardware and software maintenance

Hardware and software maintenance requires a separate contract, subject to our supplementary terms and conditions for hardware and software maintenance (see: http://www.bechtle.com/de/egb, in German).


S) Employee work at Customer sites

1. Customer must provide suitable facilities and equipment at its own expense for any services provided by our employees or agents, unless we have assumed responsibility for this.

2. Customer must ensure, at its own expense and through appropriate organisational and physical means, that our employees or agents are not incorporated into Customer’s business operations.

3. Customer has no authority to direct our employees or agents. Within the scope of a service contract or a contract to produce a work, Customer is authorised to give direction only to our legal representatives or individuals duly empowered for this purpose.


T) Acceptance

1. The following provisions apply to cases in which performance acceptance is contractually or statutorily mandated.

2. Upon our request, acceptance of partial performance will be carried out for performance components which can be delimited and used independently of one another, or performance components that serve as the foundation for further components, provided that such components can be inspected separately. The last partial acceptance is equivalent to the final acceptance.

3. If the performance requiring acceptance includes the delivery of hardware or standard software, we are entitled to invoice Customer for such delivery regardless of the acceptance of the remaining performance.


U) Export

We are required by law, and with respect to our suppliers, to comply with national and international export restrictions (in particular those stipulated by European Union and United States law) and to impose them on Customer. Customer is required to comply with these regulations as well. Upon request, we will provide Customer with information regarding the Goods subject to contractual submission agreements under US export law.

It is Customer’s sole responsibility to ensure that export requirements are met. We are not obligated to ship Goods to locations subject to export restrictions. In this case, Customer will, at our option, provide an alternate address or pick up Goods at our location.


V) Suspension of time limits in the case of negotiations

The time limits imposed on Customer entitlements can only be suspended during negotiations if we have agreed in writing to enter into negotiations. The suspension will end three months after our most recent written statement.


W) Special provisions for temporary usage permission

1. If we agree to permit Customer usage of an item, e.g. hardware, software or storage capacity (cloud computing) temporarily, these Terms and Conditions will apply in accordance with the following provisions, which take precedence.

2. Unless otherwise agreed, remuneration for use is due monthly in advance; for incomplete months (at the beginning or the end of usage), remuneration will be prorated.

3. Strict liability for defects present upon conclusion of the contract is excluded unless the defect is related to a feature guaranteed by us (Section 276(1) BGB).

4. Customer is not permitted to grant any third party permission to use the object, e.g. by sub-leasing it, nor may Customer change the agreed location (or, if no location was agreed, the initial Customer location).

5. We are not required to provide maintenance during the term of the contract for the physical objects provided to Customer or for software which Customer uses on hardware in its direct possession. Such maintenance is Customer’s responsibility. Prices are calculated based on this division of responsibilities. Customer is free to request support or maintenance services (if applicable for a fee) from us or the manufacturer; we will assist, to the extent required, in obtaining any such services from the manufacturer. Any changes to the purpose of the contract require our consent. In the case of hardware, this applies in particular to the installation of new hardware components or operating programs. Application software is installed at Customer’s own risk and expense. In the case of software, any installation and use of updates requires our express consent and is done at Customer’s own risk and expense. We are required to provide consent insofar as this is required to maintain the software. Customer may not claim any reduction in usage fees. However, any entitlement to reimbursement of usage fees remains unaffected.

6. For non-physical items, such as storage capacity (cloud computing) or Application Service Provider (ASP) agreements, usability is based on the agreed availability rate. We are entitled to provide services in whole or in part through third parties. The terms of use/terms of service of any third parties designated in the contract take precedence. If requested, Customer will receive information regarding the use of third parties as well as access to their terms of use/terms of service before the contract is concluded; such information and access will also be provided at any time upon request after the contract has been concluded.

7. Customer may only store or otherwise process content whose use does not violate German or any applicable foreign law; in particular, it cannot be subject to prosecution or fine, and it cannot violate data-protection legislation nor the property rights of third parties (e.g. copyrights, patents, trademarks or brand-related rights). If we provide cloud storage capacity and there is evidence that an aforementioned obligation has been violated or if a third party or public authority files a complaint (which is not clearly unfounded) with regard to content or usage-related actions, we are entitled to immediately block access temporarily until a legal assessment

has been completed. Where possible, Customer’s case should be heard prior to this.

8. Customer is entitled to terminate for denial or withdrawal of contractual usage only once an appropriate grace period for replacement delivery has expired. No grace period is required if we have definitively and in earnest refused to provide replacement delivery, or if special circumstances exist which justify an immediate termination after weighing the interests of both Parties.

9. In the case of software for which Customer has been granted usage permission, any and all full or partial copies of the software must be deleted after the contract has ended such that it is technologically impossible to restore them. Customer must guarantee this in writing. We are entitled to verify this deletion at Customer’s site at our own expense and upon giving prior notice; to do so, we are entitled to access all required equipment, such

as Customer’s computer and IT systems. Customer must cooperate in this

process to the extent required.


X) Place of performance, choice of law, contract language, place of jurisdiction

1. In the case of contracts with commercial businesses, the place of performance for both Parties is the location of our company’s registered office.

2. These Terms and Conditions and all legal relationships between the Parties are subject to German substantive law. Insofar as third-party terms and conditions which are subject to foreign legislation apply between us and

Customer, this foreign law applies. The United Nations Convention on Contracts for the International Sale of Goods is excluded.

3. The contract language is German.

4. If Customer is a commercial business, corporate body under public law or special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship the location of our company’s registered office; however, we are entitled to bring a case against Customer in another place of jurisdiction. With respect to all other Customers, the location of our registered office is agreed as the place of jurisdiction for all disputes arising from the contractual relationship in the event that the Party against whom the case is being brought relocates its residence or usual address outside Germany after conclusion of the contract, or if this Party’s residence or usual address is unknown at the time the case is brought.

5. The invalidity of any provisions in these Terms and Conditions or any other provision agreed between the Parties does not affect the validity of the remaining provisions in these Terms and Conditions or any other agreement.

For provisions in other agreements between the Parties, the Parties are

required to replace invalid provisions with valid provisions that most closely

resemble the invalid provisions.

 

As at: 1. September 2017