1. These General Terms and Conditions (GTC) apply to all business relationships between us, Cristie Data GmbH, Nordring 53-55,
63843 Niedernberg, and our customers, if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law, or a special fund under public law. These General Terms and Conditions also apply to future contracts concluded by the customer with us, without us having to refer to them again in each individual case.
2. Our General Terms and Conditions apply exclusively. Any deviating, conflicting, or supplementary terms and conditions of the customer, even if we are aware of them, shall not become part of the contract unless we expressly agree to their validity in writing. Our General Terms and Conditions shall also apply if we perform the service to the customer without reservation despite being aware of conflicting or deviating terms and conditions of the customer.
3. In the event of any ambiguities or contradictions between individual contractual documents, the validity of which has been agreed upon between the customer and us, the more specific document shall prevail over the more general document, unless otherwise stipulated in the respective document. Therefore, the following order applies, with the first-mentioned documents taking precedence: (1) our order confirmation; (2) service certificate; (3) our offer; (3) Cristie Data GmbH's General Terms and Conditions.
4. We reserve the right to amend these Terms and Conditions by written notice to the customer. Such amendments shall take effect 45 days after notification, unless the customer objects. If the customer objects, either party shall be entitled to terminate the contract within three months.
1. Our offers are subject to change and non-binding unless otherwise stated. This also applies if we have provided the customer with catalogs, technical documentation (e.g., drawings, plans, calculations, estimates, references to DIN standards), other product descriptions, or documents – including in electronic form – to which we reserve ownership and copyright. The customer requires our express prior consent before passing them on to third parties. We reserve the right to make technical and other changes within reasonable limits.
2. The customer's order is considered a binding contractual offer, which we can accept within three weeks.
3. Acceptance of the contract offer occurs through our order confirmation, signing of a service certificate or mutual signing of a contract, but at the latest through the provision of our service.
4. The details of the scope of services are set out in our order confirmation, the service certificate, our offer or the contract signed by both parties, depending on how the contract is concluded with the customer (hereinafter all referred to as "contract documents").
5. The conclusion of the contract is subject to the correct and timely delivery by our suppliers. This only applies if we have concluded a congruent hedging transaction with our supplier and are not supplied through no fault of our own. We will inform the customer immediately of the unavailability of the service. We will promptly refund any consideration already received.
1. We provide our services and ship them worldwide.
2. Delivery or service dates or deadlines are only binding if we have guaranteed compliance with them in writing.
3. Compliance with our delivery and service obligations and deadlines is subject to the timely and proper fulfillment of the customer's obligations. The right to assert a defense of non-fulfillment of the contract remains reserved.
4. Delivery or service times specified by us are calculated from the date of contract conclusion. If we do not specify a delivery time or do not specify a different delivery time for a standard product to be delivered, the delivery time will be approximately three weeks.
5. If we are unable to meet binding delivery or service dates or deadlines for reasons beyond our control (unavailability of the service), we will endeavor to inform the customer immediately and simultaneously communicate the expected new delivery or service deadline. If the service is not available within the new delivery or service deadline, we are entitled to withdraw from the contract in whole or in part; we will promptly refund any consideration already provided by the customer.
6. In the event of our default, which is determined in accordance with statutory provisions, a prior written reminder to the customer is required in any case.
7. We are entitled to provide partial services, provided this is not unreasonable for the customer.
8. If the customer defaults on acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for any resulting damages, including any additional expenses. Further claims remain reserved.
1. Unless otherwise agreed, our prices are net plus the applicable statutory value-added tax and are ex works, including packaging and excluding delivery, unless expressly agreed otherwise.
2. Services not included in the scope of services that we perform additionally at the customer's request, or additional expenses caused by incorrect information provided by the customer, transport delays for which the customer is not responsible, or advance performance by third parties, unless they are our vicarious agents, will be charged to the customer separately. We will inform the customer of the respective costs in advance, free of charge, upon request.
3. The deduction of discounts requires a separate written agreement. Invoice amounts are due without deduction within 14 days of the invoice date. After this period, the customer will be in default of payment – even without a separate reminder. During the period of default or in the event of a deferral, the customer will be required to pay interest on the monetary debt at a rate of 9 percentage points above the applicable base interest rate. We reserve the right to assert further damages for late payment.
4. In the event of late payment, we charge a flat-rate processing fee of €5,00 for reminders. This does not apply to the first reminder.
5. The customer is only entitled to rights of set-off or retention to the extent that their claim has been legally established, is undisputed, or is ready for decision. Counterclaims that entitle the customer to refuse performance within the meaning of Section 320 of the German Civil Code (BGB) are also exempt from this prohibition. The customer is only entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
6. If the customer defaults on payment, any outstanding deliveries and other contractual services shall only be carried out by us against advance payment.
7. If we have agreed on partial or installment payments with the customer and the customer falls into arrears with more than two partial payments or installments, the customer's entire remaining debt shall become due for immediate payment, unless the customer proves that he is not responsible for the arrears.
1. We are entitled, at our reasonable discretion, to adjust the prices to be paid on the basis of the contract concluded between us and the customer in line with the development of their production costs, which are decisive for the price calculation. The decisive points in time for calculating the change in production costs are the date of our offer underlying the contract or the last time a price adjustment was made and the date of the actual purchase of the individual cost elements for the fulfillment of the contract. A price increase is considered and a price reduction must be made if the essential price-forming factors, e.g. the costs for the deployment of the required personnel, the costs for the procurement of the required hardware, or the costs for the required energy, increase or decrease. Increases in one type of cost, e.g. the cost of purchasing electricity, may only be used for a price increase to the extent that they are not offset by any declining costs in other areas, such as personnel costs. In the event of cost reductions, e.g., in electricity procurement costs, we are obliged to reduce prices unless these cost reductions are fully or partially offset by increases in other areas. In exercising our reasonable discretion, we will select the respective times of price changes in such a way that cost reductions are not reflected in standards that are less favorable to the customer than cost increases, i.e., cost reductions have at least the same impact on prices as cost increases. Upon request, we will provide the customer with the price calculation applied at the time the contract was concluded, weighting the respective production costs, which will also be used as the basis for calculating any price adjustment.
2. A price change based on the above agreement can only be based on a change in production costs. An increase in our calculated profit through a price increase is excluded.
3. In the event of a price change, the customer is entitled to request evidence from us of the change in their production costs. We will then provide the customer with evidence of our production costs, e.g., through supplier confirmations or invoices, with reference to the relevant dates.
4. We will notify the customer of any price changes immediately after we become aware of a change in costs that is relevant to the customer.
5. In the event of a price increase exceeding 5% of the previous total price, the customer has the right to terminate this contract. The termination notice must be received by us no later than 10 days after notification of the price change.
1. The place of performance for all obligations arising from the business relationship between us and the customer is Niedernberg, unless otherwise agreed. If we are responsible for installation and assembly, the place of performance shall be the installation or assembly location.
2. If the customer defaults on acceptance, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer defaults on acceptance. In the event of required acceptance, the risk shall pass to the customer upon expiration of a reasonable period following receipt of the notification of completion.
1. If our services are shipped to the customer, they are always transported at the customer's expense, unless otherwise agreed. Unless the customer specifically instructs us, we will determine the shipping method at our sole discretion. If this is the case, we are not obligated to arrange for special packaging for the delivery or to use the cheapest and fastest shipping service provider.
2. We are entitled, but not obliged, to take out transport insurance, the costs of which shall be borne by the customer, after consultation with the customer.
3. Damage in transit must be reported to us immediately (email is sufficient). Any claims we may have against the transport company will be assigned to the customer at the customer's request, provided the customer bears the risk of transport.
1. The customer will – beyond the cooperation services specifically specified in these General Terms and Conditions – always cooperate to an appropriate extent in the implementation of the concluded contract and support us in the provision of our services at his own expense.
2. The customer is obligated to provide all necessary information so that we can provide our services, provided this is not unreasonable for the customer. The customer must also inform us of any changes that could affect our ability to provide our services. In particular, the customer must report errors and defects in their IT environment or the software they use.
3. If we provide the customer with the information necessary to access our services, in particular access data consisting of a customer ID and password, the customer undertakes to manage all access data with the usual care, in particular to secure it and change it regularly. If the customer becomes aware that an unauthorized third party has obtained knowledge of a password, the customer must notify us immediately and change the password immediately. Passwords may only be stored in encrypted form on PCs, USB sticks, or other media suitable for permanent electronic storage.
4. The customer is solely responsible for and is not authorized to use our services in the following ways:
in a manner that is prohibited by laws, regulations, guidelines or official orders or regulations, in particular that violates data protection provisions, copyright provisions and other regulations on freedom of information and other regulations, such as commercial and accounting law rules;
in a manner that infringes the rights of third parties;
in any manner to attempt to gain unauthorized access to or interfere with any services, devices, data, accounts, or networks;
in a way to spread spam or malware; or
in a manner that impairs or could impair our ability to provide SaaS, PaaS, or IaaS services to the customer or third parties. This applies in particular to the provision, publication, or use of content stored in our data center.
5. The customer will check data and information for viruses before sending it to us and will use state-of-the-art virus protection programs.
6. Unless otherwise agreed, the customer remains solely responsible for maintaining the security of their IT environment, their work environment, their network, and the applications they use. In this case, we are not responsible for the customer's IT system or hardware and software. This does not apply to customer hardware that we have integrated into and manage in our data center as part of our services.
7. The customer bears sole responsibility for the activation, configuration, and management of its backups and backup replications. The customer shall regularly check the status of its backups and replications and perform regular recovery tests on its own responsibility. This does not apply if we are responsible for managing the backups as part of our agreed services.
8. The customer is obliged to create backup copies of his data and programs before using our services.
9. Furthermore, the customer is obligated to grant us or our vicarious agents access to its buildings, its IT environment and the software operated by the customer, insofar as this is necessary for the provision of our services or for the rectification of defects.
10. With regard to the execution of orders according to the information or documents provided by the customer, the customer guarantees that the production and delivery of the services carried out according to their information and documents will not infringe the intellectual property rights of third parties. We are not obligated to verify whether the information or documents provided by the customer for the provision of services infringe or may infringe the intellectual property rights of third parties. The customer is obligated to indemnify us upon first request from all claims, legal actions, their effects, losses, or damages (e.g., reimbursement of the costs of a cease and desist letter) arising from the infringement of intellectual property rights of third parties by the customer's information or documents. We are entitled to take appropriate measures ourselves to defend ourselves against third-party claims or to pursue our rights. This indemnification also includes reimbursement of costs that we have incurred or will incur in the course of legal action/defense. However, we undertake to coordinate our course of action with the customer. We will inform the customer immediately of any such third-party claims.
11. We are not responsible, and the customer will indemnify us upon first request, against all claims, actions, their effects, losses, or damages (e.g., reimbursement of the costs of a cease-and-desist letter) brought by third parties and based on the customer's use of our services in violation of these Terms and Conditions or the contract or other applicable license terms or applicable laws or regulations. We are entitled to take appropriate measures ourselves to defend ourselves against third-party claims or to pursue our rights. This indemnification also includes reimbursement of costs that we have incurred or will incur in pursuing or defending legal action. However, we undertake to coordinate our course of action with the customer. We will inform the customer immediately of any such third-party claims.
12. If we believe that the customer is failing to provide the required cooperation or provision of services, or is failing to do so properly, we will notify the customer of this and set a deadline. If the required cooperation or provision of services is not fulfilled even after the expiration of the grace period, we shall be released from our respective performance obligation and from compliance with any related service levels, excluding any further legal consequences. In this case, the customer remains obligated to pay the remuneration.
13. The services to be provided by the customer constitute genuine obligations and not mere duties. If and to the extent that the customer fails to provide the services owed, fails to provide them on time, or fails to provide them as agreed, and this impacts our ability to provide the services, we shall be released from the obligation to provide the affected services. The corresponding performance deadlines shall be postponed by a reasonable period plus a reasonable start-up time. Any additional expenses incurred and proven by us will be reimbursed separately, without prejudice to any other rights, based on the agreed terms and conditions.
We are entitled to use subcontractors at our own expense without prior agreement with the customer. The use of a subcontractor does not release us from our contractual obligations.
X. Open Source Software
As part of our service provision, we are authorized to use or deliver open source software or components. However, the use of open source software subject to so-called copyleft license terms (e.g., the GNU General Public License (GPL), the GNU Lesser General Public License (LGPL), or the Mozilla Public License (MPL)) requires a separate prior agreement between the parties.
1. Subject to the following provisions, all information, facts, documents, data and/or knowledge, in particular technical and/or economic information, design documents, specifications, drawings, samples, prototypes, test results, source codes, object codes and data from our customers and/or secret know-how and trade secrets of ours, i.e. identifiable knowledge that is only accessible to a limited circle of people, e.g. in the form of non-public information about manufacturing processes or audit results, as well as all information, facts, documents, data, knowledge, know-how and/or trade secrets from and/or about our business partners (e.g. customers, clients, suppliers, service providers, cooperation partners, trading partners, research and development partners) that the customer receives from us within the scope of the collaboration, regardless of whether in written, text form, electronic, oral, visual or in any other form, are confidential. Confidential information also includes all copies made thereof, self-created materials and summaries.
2. The customer may use the confidential information solely for the purpose of implementing the cooperation with us.
3. The customer undertakes to protect all disclosed confidential information from access by third parties and to store it with at least the same level of care as it treats its own confidential information, but at least with the level of care customary in such cases. The confidential information may not be disclosed to any third party unless expressly permitted under this agreement. The confidential information may only be disclosed to third parties with our prior written consent. If disclosure to these third parties is necessary, we may not unreasonably withhold consent.
4. Disclosure is permitted regardless of our consent if the customer is required to do so by an official or judicial order or by mandatory legal provisions, provided that the customer informs us promptly and prior to such disclosure, wherever practicable and lawful, in order to give us the opportunity to exercise our rights and/or take steps to contest the validity of such a request, and the customer takes all reasonable steps to ensure that the confidential information is treated confidentially.
5. Any disclosure of confidential information to the customer by companies affiliated with us pursuant to Sections 15 et seq. of the German Stock Corporation Act (AktG) shall be deemed to be a disclosure by us to the customer.
6. Before the customer discloses confidential information to third parties, the third party must be obligated to maintain confidentiality to the same extent as the customer is obligated to do so under this contract. Regarding disclosure to employees, the customer must ensure that the confidential information received is only made available to those of the customer's employees whose involvement is necessary for the implementation of the project. These employees must also be obligated to maintain confidentiality to the extent permitted by labor law, unless a general obligation to maintain confidentiality has already been established within the scope of the employment relationship.
7. There shall be no obligation of confidentiality with respect to information which was already public at the time of its disclosure or which became public after its disclosure without breach of this Agreement;
were already known to the customer at the time of their disclosure;
after their disclosure, have been made available to the Customer by a third party lawfully and without restriction as to confidentiality or use, or have been developed by the Customer independently and without recourse, directly or indirectly, to Confidential Information or in accordance with the exceptions provided for in this clause
8. The customer is obligated, at our request (at least in text form), to return or destroy all confidential information received to which no rights have been transferred. However, the customer is entitled to retain confidential information or copies thereof if the law applicable to it requires retention in order to comply with statutory obligations; or if routine backup copies of electronically exchanged information are made.
confidential information.
However, unless longer periods are stipulated by law, the Confidential Information may be retained for a maximum of ten (10) years from the termination of the Agreement. The above retention period does not constitute a right to disclosure or transfer.
9. A breach of the confidentiality obligation by employees and/or by a third party to whom the Customer has disclosed confidential information shall be deemed a breach of the confidentiality obligation by the Customer.
10. The customer’s confidentiality obligations shall continue for 3 years after the termination of the collaboration.
1. Information in our descriptions of the goods and/or services valid at the time of conclusion of the contract regarding performance, dimensions, weights, usage restrictions, and maintenance requirements are part of the contract. They are to be considered approximate and serve as a benchmark for determining whether the goods and/or services are defective according to the following provisions. We assume no liability for public statements made by third parties, e.g., advertising statements.
2. We reserve the right to deliver the purchased item with technically modified components, provided that these have equivalent quality and performance and no quality agreement exists between us and the customer regarding the replaced component. This also applies if the components do not exactly match the specifications stated before or in the contract.
3. Claims for defects shall not apply in the case of natural wear and tear, as well as in the case of damage that occurs after the transfer of risk as a result of faulty or negligent handling, the use of unsuitable operating materials, chemical, electrochemical, or electrical influences (unless we are responsible for them), unsuitable and/or improper use, excessive stress, defective construction work, faulty assembly by the customer or third parties, unsuitable building ground, or due to special external influences not assumed under the contract. If improper repair work or modifications are carried out by the customer or third parties, claims for defects shall also not apply to these and the resulting consequences.
4. The customer's claims for damages or reimbursement of wasted expenses exist only in accordance with the provisions of Section A, XIII of these General Terms and Conditions and are otherwise excluded.
5. A guarantee or assurance in the sense of an increased liability or the assumption of a special obligation to indemnify shall only be deemed to have been given if the terms “guarantee” or “assurance” are expressly mentioned by us.
1. We shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions, unless otherwise stated in these Terms and Conditions, including the following provisions.
2. We are liable for damages – regardless of the legal basis – within the scope of liability for intent and gross negligence. In cases of simple negligence, we are liable, subject to a more lenient standard of liability under statutory provisions, only for damages resulting from injury to life, body, or health, for damages resulting from the significant breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely).
In this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.
Indirect and consequential damages, such as lost profits, are also only compensable to the extent that such damages are typically to be expected when the goods and/or services are used as intended, in particular if they are the result of defects in the goods and/or services.
3. The limitations of liability arising from Section A XIII 2 of these General Terms and Conditions shall also apply if the customer demands reimbursement of wasted expenses instead of a claim for compensation for damages instead of performance.
4. The limitations of liability arising from Sections A XIII 2 and A XIII 3 of these General Terms and Conditions also apply to breaches of duty by and for the benefit of persons whose fault we are legally responsible for, such as our employees, workers, staff, representatives, organs, and vicarious agents. They do not apply to the extent that we have fraudulently concealed a defect or provided a guarantee for the quality of the service, to customer claims under the Product Liability Act, or to liability for claims based on defects in the goods and/or services.
5. To the extent that we provide general technical information, advice or recommendations without being contractually obliged to do so, we are not obliged to compensate for any damage resulting from following the advice or recommendation, without prejudice to any liability arising from a separate contractual relationship, a tort or any other statutory provision.
6. The customer may only withdraw or terminate the contract due to a breach of duty that does not constitute a defect if we are responsible for the breach of duty.
1. In the event of force majeure or other events beyond the control of the respective party, such as natural disasters, disruptions in the energy and raw material supply, government decrees, labor disputes, unrest, armed or terrorist conflicts, epidemics, or pandemics, which result in unforeseeable consequences for the performance of the service, the affected party shall be released from its performance obligations for the duration of the disruption and to the extent of its effects. This does not constitute an automatic termination of the contract. The parties are obligated to notify each other immediately in writing of such an event and of its cessation of the event and to adapt their obligations to the changed circumstances in good faith.
2. The affected party will use its best efforts to remedy the effects of the event or to limit them as far as possible. For the period during which one party is unable to fulfill its contractual obligations, the other party shall be released from its obligation to provide consideration.
3. If a party is unable to properly perform the contractual relationship due to such events or is no longer able to properly perform the contractual relationship due to such events, and this is not merely temporary, the other party shall be entitled to terminate the contract. The parties agree that a performance impediment described above is not merely temporary if it lasts for more than three months.
4. The parties agree that if a supplier of a party is affected by an event of force majeure within the meaning of this agreement, it shall also be considered a case of force majeure within the meaning of this agreement.
1. We retain title to our goods and/or services (hereinafter "reserved goods") until all current and future claims arising from an ongoing business relationship (secured claim) have been paid in full. This retention of title extends to the products resulting from the processing, mixing, or combining of the reserved goods at their full value, whereby we are deemed to be the manufacturer. If, upon processing, mixing, or combining with third-party goods, the ownership rights of third parties remain intact, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same applies to the resulting product as to the goods and/or services delivered subject to retention of title.
2. The customer is obligated to treat the reserved goods with care; in particular, the customer is obligated to adequately insure them against fire, water, and theft damage at their replacement value at their own expense. If maintenance and inspection work is required, the customer must carry out these in a timely manner at their own expense.
3. The customer is entitled to resell the reserved goods in the ordinary course of business; however, the customer now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims arising from the resale against its customers or third parties. We accept the assignment. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets its payment obligations to us from the proceeds received, does not default on payment, and in particular, no application for the opening of composition or insolvency proceedings has been filed, and payments have not been suspended. If this is the case, however, we may demand that the customer disclose the assigned claims and their debtors to us, provide all information necessary for collection, hand over the relevant documents, and notify the debtors or third parties of the assignment.
4. We will release the reserved goods and any items or claims replacing them, provided their value exceeds the amount of the secured claims by more than 10%. The selection of the items to be released thereafter is at our discretion. 4. We will release the reserved goods and any items or claims replacing them, provided their value exceeds the amount of the secured claims by more than 10%. The selection of the items to be released thereafter is at our discretion.
5. In the event of breach of contract by the customer, particularly in the event of late payment, we are entitled to take back the reserved goods, and the customer is obligated to surrender them. Our taking back of the reserved goods does not constitute a withdrawal from the contract. After taking back the reserved goods, we are entitled to dispose of them. The proceeds from such disposition shall be credited to the customer's liabilities – less reasonable disposal costs.
6. Pledging or transferring the reserved goods as security is prohibited. The customer must notify us immediately in writing of any seizure or other intervention by third parties in or on the reserved goods.
1. If a volume- or user-based fee or service has been agreed with the customer, the parties agree that a monthly review of the data volume used or user access will be conducted. These reviews also serve billing purposes.
2. If the customer's contractually agreed volume has been used up or more users than agreed have accessed our services, the customer may request additional volume or relicense additional user access. If the agreed volume or access limit is exceeded, we are entitled to charge the customer for the additional volume used or the additional user access pro rata according to the agreed fee or a separate offer.
3. We and/or supervisory authorities are entitled to gain access to the customer's business premises, data center, and IT environment during the customer's normal business hours to verify whether the customer complies with the requirements of these Terms and Conditions and the Agreement, as well as applicable laws. The customer will cooperate and cooperate with us during such inspections and audits. The inspections and audits will be conducted in a manner that does not disrupt the customer's business more than necessary and may not last excessively long. We will provide the customer with at least five business days' advance notice of a possible audit. This notice period does not apply if the audit is conducted by a supervisory authority. At the customer's request and expense, we may also have the audit conducted by an expert who is bound to confidentiality towards third parties. Each party shall bear its own costs for conducting an audit. If, after an audit, it emerges that the customer has not paid us the contractual remuneration, the customer shall reimburse us for the costs of the audit and pay the contractual remuneration immediately.
1. The parties undertake to comply with the data protection regulations applicable to them.
2. To the extent that we process the customer's personal data, we do so exclusively as the customer's agent and thus on behalf of the customer. The agreement regarding the processing of such data will be concluded separately.
Within the framework of legal requirements (Section 7 of the German Unfair Competition Act), we may also use the customer's contact details provided during the order process to send the customer advertising by email, fax, or post, even without express consent, if the customer has ordered goods or services from us, we have received the email address in this context, and the customer has not opted out of receiving information by email. The advertising content is limited to similar goods or services to those already ordered by the customer.
1. We are entitled, with the customer's consent, to name the customer as a reference customer. The customer will not refuse consent without good reason. We are entitled to name the customer, in particular, in online publications, print media, and presentations.
2. The customer shall release advertising materials such as brand logos, etc. to us and undertakes to grant us all necessary rights of use in this regard.
3. The customer has the right to revoke the granted rights of use in writing at any time, with future effect, if there is good cause. We may continue to use print media already created at this time.
1. These Terms and Conditions and the entire legal relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG). The conditions and effects of the retention of title pursuant to Sections A and XV of these Terms and Conditions shall be governed by the law of the respective location of the item, to the extent that the choice of German law is inadmissible or invalid.
2. If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. However, we are also entitled to bring legal action at the customer's general place of jurisdiction.
3. The Customer undertakes to impose the obligations arising from these Terms and Conditions and the Contract Documents on any legal successors and/or universal successors.
4. The content of any ancillary agreements, amendments and additions, including those relating to this clause, shall be governed by a written contract or our written confirmation.
5. If one or more provisions of these Terms and Conditions are invalid, the remaining provisions shall remain valid.
1. If we owe the sale, i.e. the permanent provision of standard goods and/or services for a fee, the following provisions of this section shall apply in addition.
The risk of accidental loss and accidental deterioration passes to our customer as soon as the goods have been handed over to the person carrying out the transport. This also applies to partial deliveries. If shipment is delayed at the customer's request, the risk passes upon notification of readiness for shipment.
1. To the extent that we are obliged to provide standard software on a permanent basis, the customer is granted the simple, non-exclusive, non-sublicensable, transferable, perpetual right, limited in content to the scope of the contract and geographically to the territory of the member states of the European Union (EU), to use the software in its business for its own purposes. This is subject to the customer fulfilling all of its obligations under the contract, in particular its payment obligations. The customer does not acquire any further rights to the software. All exclusive and further rights remain entirely with us and/or the third-party providers, unless they have been expressly granted to the customer.
2. Should it be obvious from any of the services and descriptions offered by us, or from the service certificate or documentation from us or the customer, that our services contain a third-party product and/or source code or module originating from us or a third-party provider, the customer must observe the relevant terms and conditions regarding licensing and use and breach of contract with respect to such products, source code, or modules. We will send the customer the terms and conditions to be observed free of charge upon request. In the case of software products, the relevant terms and conditions will be displayed to the customer during the initial installation of the software. The customer then has the option of saving the terms and conditions. If the customer accepts the terms and conditions, a direct user agreement is concluded between the customer and the third-party provider.
3. The customer has no right to inspect the source code or to be provided with the source code of standard software.
1. The statutory provisions of Sections 433 et seq. of the German Civil Code (BGB) apply to the customer’s rights in relation to material and legal defects in the context of the sale of goods and/or services, unless otherwise provided in these General Terms and Conditions.
2. Our liability for defects is excluded for used goods. This does not apply if we fraudulently concealed the defect or provided a guarantee for the quality of the goods, nor does it apply to claims for defects based on our grossly negligent or intentional breach of our obligations, nor to claims for damages by the customer in the event of injury to body, life, or health, or in the event of our breach of essential contractual obligations.
3. The customer must immediately inspect the delivered goods for defects and notify us of any obvious defects within 7 working days of delivery, and of hidden defects within 7 working days of becoming aware of them, at least in writing. Otherwise, the assertion of warranty claims regarding defects not reported in a timely or proper manner is excluded (§§ 377, 381 HGB). The goods are then deemed to have been approved.
4. If a defect exists, we are entitled, at our discretion, to remedy the defect or to deliver a defect-free item. If subsequent performance is impossible or disproportionate, we are entitled to refuse it. In this case, an appropriate reduction in price must be agreed upon, or the customer may – if the defect or breach of duty is significant – withdraw from the contract in accordance with statutory provisions. We are entitled to make the subsequent performance owed dependent on the customer paying the due remuneration. However, the customer is entitled to retain a portion of the remuneration that is reasonable in relation to the defect.
5. In the event of subsequent performance, we are obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs (cf. Sections 439 (2) and (3) of the German Civil Code), if a defect actually exists and insofar as these are not increased by the fact that the goods were transported to a location other than the place of performance, unless the transport corresponds to the intended use of the goods.
6. We may demand reimbursement from the customer for costs incurred as a result of an unjustified request for remedy of defects (in particular inspection and transport costs), unless the lack of defects was not apparent to the customer.
7. The customer's rights due to defects shall expire one year from the commencement of the statutory limitation period. This period does not apply to the customer's claims for damages resulting from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by us or our vicarious agents, nor to cases of entrepreneurial recourse (§§ 478, 479 BGB), our liability for fraudulent intent, for guaranteed characteristics, or for claims by the customer under the Product Liability Act (ProdHaftG); these claims shall expire in accordance with the statutory provisions.
8. If the goods are an item that is used for a building in accordance with its usual purpose and causes its defects (building material), the limitation period is five years from delivery according to the statutory provisions (Section 5 (438) No. 1 of the German Civil Code). Other special statutory provisions regarding limitation periods remain unaffected (in particular Section 2 (438) No. 1, (1), Sections 3, 444b of the German Civil Code).
If we owe the rental, i.e. the temporary provision of goods and/or services against payment (e.g. by way of Software as a Service (SaaS), Platform as a Service (PaaS), or Infrastructure as a Service (IaaS)), the following provisions of this section shall apply in addition.
1. Within the scope of rental services, we can provide the following services to the customer:
Infrastructure as a Service (IaaS) services, i.e. the temporary provision of data center infrastructure via the Internet;
Platform as a Service (PaaS) services, i.e. the temporary provision of a development environment and tools for the development of new applications on our data center infrastructure via the Internet;
Software as a Service (SaaS) services, i.e. the temporary provision of software on our data center infrastructure via an internet connection;
2. Depending on the agreement, the rental services will be provided via a multi-tenant server; as a "dedicated service" via a server used specifically by the customer;
via a server used specifically by the customer, which is equipped with additional physical security barriers; or
via hardware provided by the customer, which is integrated into our data center. Unless explicitly agreed with the customer, no ownership rights, especially not with regard to the data center infrastructure, are transferred to the customer.
3. Our IaaS, PaaS, and SaaS services are provided over the internet for use via remote data access. The customer's access to the internet is not part of our services. The customer bears sole responsibility for the establishment, functionality, and bandwidth of their internet access, including the transmission paths, as well as their own IT environment required to access our services. The exact requirements can be requested from us.
1. To the extent that SaaS or PaaS services are owed, the customer is granted the simple, non-exclusive, non-sublicensable, non-transferable right, limited in time and content to the term and scope of the contract, and geographically limited to the territory of the member states of the European Union (EU), to use the software or platform in its operations for its own purposes. This is subject to the customer fulfilling all of its obligations under the contract, in particular its payment obligations. The customer does not acquire any further rights to the software or platform. All exclusive and further rights remain entirely with us and/or the third-party providers, unless they have been expressly granted to the customer.
2. Should it be obvious from any of the services and descriptions offered by us, or from the service certificate or documentation from us or the customer, that our services contain a third-party product and/or source code or module originating from us or a third-party provider, the customer must observe the relevant terms and conditions regarding licensing and use and breach of contract with respect to such products, source code, or modules. We will send the customer the terms and conditions to be observed free of charge upon request. In the case of software products, the relevant terms and conditions will be displayed to the customer during the initial installation of the software. The customer then has the option of saving the terms and conditions. If the customer accepts the terms and conditions, a direct user agreement is concluded between the customer and the third-party provider.
3. To the extent that we provide software to our customers as part of SaaS or PaaS services, we are responsible for ensuring that we hold the necessary rights and licenses for this. If the contractual partners have agreed that the customer must provide a right of use or a license for other software or functionality, the customer is solely responsible for ensuring that they have the appropriate license. The customer remains solely responsible for, and guarantees us the right to use, any such software or functionality provided by the customer for contractual purposes and to provide our services.
4. The customer has no right to inspect the source code or to receive the source code.
1. The customer undertakes to check the content stored on our servers for harmful components using appropriate means (e.g., virus scanners and Trojan horse protection) before backing them up. For this purpose, the customer uses means that correspond to the current state of the art.
2. The customer undertakes to use our services exclusively for their intended purpose and solely for internal business processes. They are not authorized to make the services provided to them available to third parties for use, whether for a fee or free of charge. The customer is responsible for all their employees or other persons who use our services within their business area.
3. The customer undertakes to establish and maintain the remote data connection necessary for the use of the SaaS, PaaS, and/or IaaS services. The configuration of the customer's IT environment required for the use of the SaaS, PaaS, and/or IaaS services is the customer's responsibility, unless otherwise agreed between the parties.
4. The customer is obliged to notify us immediately of any errors in the services provided under the rental agreement.
5. The customer is responsible for using only hardware and software that has been either recommended or approved by us.
6. The customer remains solely responsible for maintaining the security of its IT environment, its work environment, its network, and the applications it uses.
7. Unless otherwise agreed, the Customer shall install the contractual software and/or platform required for the use of the Services within the agreed time after conclusion of this Agreement.
1. We are entitled to interrupt our service provision to perform maintenance and repair work on our data center infrastructure. Maintenance and repair work will be carried out remotely wherever possible. Repair work will primarily be carried out through remote diagnostics and remote maintenance measures. We will use maintenance windows outside of normal business hours whenever possible and will inform the customer of planned maintenance windows in a timely manner. Maintenance windows will only be scheduled during normal business hours if the customer's interests are taken into account and for important reasons. The exact availability of our services is set out in the contractual documents.
2. We are entitled to temporarily interrupt the connection of our services to the internet (blocking the systems) if there is reasonable suspicion of illegal use by the customer, in particular as a result of a warning from a suspected infringer – unless this is manifestly unfounded – or as a result of investigations by government authorities. The blocking shall, as far as possible, be limited to the allegedly infringing content or activity. The customer must be notified immediately of the blocking, stating the reasons, and requested to refrain from/remove the allegedly illegal use or to explain its legality and, if necessary, provide evidence of it. The blocking shall be lifted as soon as the suspicion is refuted.
3. We are entitled to block access to our services if the customer is in default with payment of the fee in whole or in part (defense of non-fulfillment of contract). The obligation to pay the contractually agreed fee is not affected by the blocking. We can make the reactivation of our services dependent on the settlement of all outstanding claims against the customer. Other rights remain unaffected by this provision.
4. As soon as we become aware that obstacles or impairments may occur that may affect our performance, we will inform the customer immediately, stating the reason and the expected duration of the hindrance.
5. We reserve the right to provide our services, including the rectification of defects, remotely, to the extent technically feasible. Should this not be possible, we are obligated to dispatch personnel to the customer so that the services can be performed on-site.
1. The customer's rights to material and legal defects within the scope of the temporary transfer of our goods (rental) are subject to the statutory provisions of Sections 535 et seq. of the German Civil Code (BGB) (tenancy law claims for defects), unless otherwise provided in these Terms and Conditions. During the term of the contract, we guarantee that the contractually agreed quality of the rental property will be maintained and that no third-party rights conflict with the contractual use of the rental property. We will remedy any material and legal defects in the rental property that arise within a reasonable time.
2. If a defect in the rental property becomes apparent during the rental agreement, if measures to protect the rental property against an unforeseen risk become necessary, or if a third party claims a right to the rental property, the customer must notify us of this immediately, but no later than within 3 working days, in writing, describing the specific circumstances of the defect. If the customer fails to do so, they are obliged to compensate us for any resulting damages. If we were unable to remedy the situation due to the failure to do so, the customer is not entitled to assert the rights specified in Section 536 of the German Civil Code (BGB) (in particular a reduction in price), to demand damages under Section 536a (1) of the BGB, or to terminate the contract without setting a reasonable period for remedy under Section 543 (3) Sentence 1 of the BGB.
3. The landlord's strict liability for initial defects is excluded.
4. Our liability for damages and reimbursement of expenses to the tenant pursuant to Section 536a of the German Civil Code (BGB) shall be governed by the provisions of Section A XIII of these General Terms and Conditions.
1. Upon termination of the contract, the customer must immediately cease using the services provided under the rental agreement. The customer must then return, destroy, or delete all documents, information, access data, and in particular license keys, as well as software copies and documents associated with the software, at our discretion. Furthermore, the customer must uninstall any software provided by us.
2. We will deactivate the customer’s access on the termination date.
3. If the customer has rented physical space in one of our data centers, the customer is obligated to immediately take back the hardware belonging to him at the location of our data center.
4. In the event of contract termination, the customer is entitled to take over the data stored on our systems or to transfer it to third parties. The customer is solely responsible for the transfer/migration of the customer's data. The customer will carry out any migration themselves or have it carried out by a third party. Related support services and the associated remuneration are not included in our services. We will support the customer with any necessary data transfer upon termination of the contract. We will invoice the customer for the time spent on this, subject to a separate quote.
5. The data stored by the customer will be deleted 30 days after termination of the contract or after an agreed data transfer, unless the customer notifies us within this period that the transferred data is illegible or incomplete. The customer is solely responsible for compliance with any retention periods required by commercial and tax law.
1. If we owe the provision of work or services, such as the creation of individual software, the construction of an entire system, maintenance services or training services, the following provisions of this section shall apply in addition.
2. The term “custom software” within the meaning of these Terms and Conditions includes both individual adaptations and extensions of standard software as well as the new development of software including the associated program and user documentation.
1. If we provide services under a work contract for the customer (e.g. the manufacture of a storage system, maintenance or repair services), acceptance of our service shall take place through a declaration by the customer in text form (e.g. by email) or through the actual use of the service by the customer.
2. The customer is obligated to declare acceptance if the work does not exhibit any significant defects upon acceptance. Only minor defects do not constitute a right for the customer to refuse acceptance. If the customer does not declare acceptance despite being obligated to do so, we are entitled to set the customer a deadline of 10 working days to declare acceptance. After this deadline has elapsed, acceptance is deemed to have taken place unless the customer provides written justification for any significant defects.
3. If acceptance fails, the customer shall immediately provide us with a list of all defects preventing acceptance.
4. We are entitled, and the customer is obligated, to request or declare partial acceptance of definable parts of the service. The provisions for acceptance shall apply accordingly to such partial acceptance.
5. If acceptance is required, this shall be decisive for the transfer of risk.
1. To the extent we are responsible for the production of customized software, the customer is granted the simple, non-exclusive, non-sublicensable, transferable, unlimited right, limited in content to the scope of the contract and geographically to the territory of the member states of the European Union (EU), to use the software in its business for its own purposes. This is subject to the customer fulfilling all of its obligations under the contract, in particular its payment obligations. The customer does not acquire any further rights to the software. All exclusive and further rights remain entirely with us and/or the third-party providers, unless they have been expressly granted to the customer.
2. Should it be obvious from any of the services and descriptions offered by us, or from the service certificate or documentation from us or the customer, that our services contain a third-party product and/or source code or module originating from us or a third-party provider, the customer must observe the relevant terms and conditions regarding licensing and use and breach of contract with respect to such products, source code, or modules. We will send the customer the terms and conditions to be observed free of charge upon request. In the case of software products, the relevant terms and conditions will be displayed to the customer during the initial installation of the software. The customer then has the option of saving the terms and conditions. If the customer accepts the terms and conditions, a direct user agreement is concluded between the customer and the third-party provider.
3. The customer has no right to inspect the source code or to be provided with the source code of standard software.
4. If and to the extent that our services include or comprise the development of new or modified functionality, we or the relevant third-party provider, unless otherwise agreed, shall acquire all intellectual property rights, including copyrights, trademark rights, design rights, and patent rights, for the new or modified functionality. The customer shall be entitled to use such new developments or modifications, as well as any software provided, in accordance with the terms and conditions in Section D, III of these Terms and Conditions, provided the customer pays the corresponding remuneration under the contract.
1. We are free to organize our working hours. However, we must coordinate with the client regarding collaboration and adherence to deadlines.
2. We reserve the right to provide our services, including the rectification of defects, remotely, to the extent technically feasible. Should this not be possible, we are obligated to dispatch personnel to the customer so that the services can be performed on-site.
3. If we take over hardware that is the property of the customer as part of our colocation services, the customer is obligated to adequately insure the hardware that is integrated into our data center and to provide us with a copy of the insurance certificate.
4. If we provide so-called colocation services, we are entitled to request the customer to relocate its hardware from our data center space to other data center space operated by us, provided there are compelling reasons, in particular:
if the building or parts of the building in which the customer's hardware is located are damaged or destroyed in such a way that we can no longer provide the space under the agreed or otherwise legally required conditions;
if the customer's rental claim or right of use with regard to the building or part of the building in which the parking space is located is terminated or significantly deteriorates;
if the move is necessary to maintain or improve the efficiency of the data center;
if necessary in an emergency situation to address significant problems in the provision of services to the customer or to other of our customers;
if this is necessary to prevent the hardware from having a disruptive influence on other customers' equipment or our data center infrastructure;
if this is ordered by a court, administrative or regulatory authority, or is necessary due to a legal requirement or regulatory provision.
The installation is planned and carried out in close coordination between us and the customer.
5. As soon as we become aware that obstacles or impairments may occur that may affect the provision of our services, we will inform the customer immediately, stating the reason and the expected duration of the hindrance.
1. If the provision of services under a work contract has been agreed, the customer may request changes to the scope of the services owed under the contract at any time after conclusion of the contract, provided this is reasonable for us. The customer must submit the change request at least in text form.
2. We will examine the customer's request for changes and will inform the customer within a reasonable period of time, particularly taking into account the nature and extent of the change request, whether it is reasonable for us and, if not, why it is unreasonable.
3. If the reasonable change request does not affect the agreed remuneration or deadlines, we will immediately begin implementing the change request and will inform the customer accordingly.
4. If the reasonable change request impacts the agreed remuneration or deadlines, we will submit a proposal for implementation, specifying the deadlines and the impact on the agreed remuneration. The customer will accept or reject our proposal for implementation immediately.
5. If the preparation of the implementation proposal requires extensive (technical) planning, we are entitled to make this dependent on the payment of an appropriate fee. In this case, we will submit a corresponding planning proposal, specifying the fee. The customer will accept or reject our planning proposal immediately.
6. If an agreement is reached regarding a change in the service, the contract must be amended accordingly. If no agreement is reached, the work will continue on the basis of the current contract.
1. Unless otherwise agreed in the contract documents, the following provisions apply to agreed support services. The customer is obligated to report errors in the manner specified below.
2. Our support consists of a helpdesk function. Our support includes first- and second-level support. Our support, guidance, and consulting during normal business hours are included in the agreed support fee, provided the support is provided remotely from the helpdesk. The customer is responsible for providing the technical requirements for internet access and remote maintenance at their own expense.
3. We are expressly excluded from our support and are not responsible for the restart of software or systems that are not covered by the contract, for incidents caused by the customer or their own hardware, equipment, software, or IT environment, for incidents caused by modifications or interruptions to our services by the customer or by the customer's software, for incidents caused by cyberattacks, viruses, malware, and similar events, for incidents caused by third parties or by circumstances beyond our control, such as an interruption of the customer's internet connection, hardware defects or software errors not covered by our services, or for incidents caused by incorrect information provided by the customer. If we nevertheless provide services in the aforementioned cases, we are entitled to invoice these additionally in accordance with the agreed remuneration or a separate offer.
4. We are also expressly excluded from our support and are not responsible for the planning and implementation of backups and their replications, unless we are explicitly obliged to provide these services.
5. If we are obliged to rectify a fault, we are entitled to provide a workaround until a program version that rectifies the fault is available.
6. In the event that support services are not provided via remote support, we are entitled to additionally charge appropriate daily rates, travel expenses, and accommodation costs. Furthermore, we are entitled to additionally charge for travel expenses, travel time, and overtime, provided that the travel or accommodation has been agreed upon in advance between the customer and us.
7. Unless otherwise agreed, our support is available daily during the following business hours: 08:00 a.m. to 17:00 p.m. CET; excluding Saturdays, Sundays, and federal holidays.
8. The customer must immediately inform us of any incidents and/or defects or error patterns in our services by telephone or email. When reporting incidents, the customer must describe and demonstrate the reported incident and provide us with sufficient information so that we can recreate or repeat the incident. Upon our request, the customer must immediately provide us with the data and information necessary to provide our support. Furthermore, the customer must immediately follow our instructions and verify and confirm our information. Furthermore, the customer must, if necessary, grant us access to their buildings, IT environment, and other assets so that we can provide support.
1. Unless otherwise agreed in the contract documents, the following provisions shall apply to agreed training services.
2. As part of the training, we provide continuing education and support services ("Training Services") in coordination with the customer. The training services will be further specified between the customer and us.
3. We determine the content of the training services at our discretion, taking into account the customer's training needs.
4. The training dates will be agreed and determined together with the customer if the training services are provided individually for a customer.
5. Unless otherwise agreed, all training courses will be conducted in German.
6. The training materials will only be made available to the customer on a permanent basis if a separate agreement has been made.
7. The customer shall support our training services through appropriate cooperation, in particular by providing the necessary infrastructure such as projectors, Wi-Fi, etc. If the training services take place on the customer's business premises, the customer shall, in particular, grant us access to these premises.
1. To the extent that our services are services or work performances (e.g. support services, production of customized software, managed services, the construction of an entire system or the operation of the customer's hardware as a customer-owned cloud by us in one of our data centers), we are liable for defects in these services in accordance with the rules of service contract law or work contract law (§§ 611 ff. BGB, 631 ff. BGB), unless otherwise specified in the following sections.
2. The customer's obligation to inspect and report defects pursuant to Sections 377 and 381 of the German Commercial Code (HGB) applies accordingly to services provided under a work contract. The customer is obligated to notify us in writing of any identifiable defects or other claims relating to the delivered work immediately, but no later than seven working days after acceptance of the work, and of hidden defects within seven working days of becoming aware of the defect. After this period, the work is deemed to be free of defects.
3. If a defect exists, we are entitled, at our discretion, to remedy the defect or to deliver a defect-free item. If subsequent performance is impossible or disproportionate, we are entitled to refuse it. In this case, an appropriate reduction in price must be agreed upon, or the customer may – if the defect or breach of duty is significant – withdraw from the contract in accordance with statutory provisions. We are entitled to make the subsequent performance owed dependent on the customer paying the due remuneration. However, the customer is entitled to retain a portion of the remuneration that is reasonable in relation to the defect.
4. In the event of subsequent performance of services under a work contract, we are obligated to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor, and material costs (cf. Section 635 (2) of the German Civil Code), if a defect actually exists and insofar as these costs are not increased by the goods being transported to a location other than the place of performance, unless the transport corresponds to the intended use of the goods. We may demand reimbursement from the customer for the costs incurred from an unjustified request for remedy of the defect (in particular inspection and transport costs), unless the lack of defect was not recognizable to the customer.
5. The customer's rights due to defects in the work contract expire within 12 months from delivery of the goods or acceptance. This period does not apply to the customer's claims for damages resulting from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by us or our vicarious agents, nor to cases of entrepreneurial recourse (§§ 478, 479 BGB) or claims arising from supplier recourse pursuant to §§ 445a, 445b BGB, for our liability for fraudulent intent, for guaranteed characteristics, or for claims by the customer under the Product Liability Act (ProdHaftG); these claims expire in accordance with the statutory provisions. The statutory periods also apply to claims due to defects in a building or for delivered items that were used for a building in accordance with their usual purpose and caused its defectiveness.
If the customer exercises his right of termination pursuant to Section 648 of the German Civil Code (BGB), the legal consequences of Section 648 of the BGB apply, with the proviso that we are entitled to 5 percent of the agreed remuneration for the portion of the work not yet performed, instead of 15 percent. The customer remains free to prove that no damage has occurred at all or that the damage has not been incurred to the stated amount. We reserve the right to assert higher proven damages. In this case, the lump sum will be credited.
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