General Terms and Conditions of Delivery and Service of digikoo GmbH

§ 1 Scope

These General Terms and Conditions of Delivery and Service shall apply exclusively to our contracts and their performance. Deviating terms and conditions of the customer shall not become part of the contract even if we do not expressly object to them in individual cases or if the delivery/service is carried out. Any contract offers of the customer with reference to his terms and conditions are hereby rejected.

§ 2 Prices and costs

(1) Our prices are net prices plus costs for packaging, customs, freight and transport as well as plus legally owed value added tax. Sentence 1 and para. 3 S. 1 do not apply if the customer is a private consumer (§ 13 BGB).

(2) Transport insurances and other insurances of the goods taken out at the customer’s request shall also be at the customer’s expense. Freight is paid according to the freight rates valid on the day of calculation.

(3) The choice of an appropriate shipping route as well as an appropriate shipping and packaging method shall be left to us. Any necessary increase or decrease in shipping costs due to a mandatory subsequent change in the type of packaging, shipping route and shipping method shall be borne by the customer or shall benefit the customer.

§ 3 Principles of cooperation

The contracting parties are obliged to provide each other with the necessary support at all times within the framework of the implementation of this contract. To this end, the contracting parties shall inform each other without delay of all circumstances known to them or of which they become aware that affect the implementation of this contract.

§ 4 Transfer of risk

(1) With customers within the meaning of § 310 para. 1 BGB (i.e. an entrepreneur, a legal entity under public law or a special fund under public law), delivery “ex works” shall be agreed. The place where the goods are made available for collection is determined by the contract. The date of provision will be communicated to the customer.

(2) This also applies if free shipping has been agreed or if the item is shipped at the customer’s request.

§ 5 Obligations of the customer

(1) If the customer is a person within the meaning of § 310 para. 1 BGB, applies:

(a) The customer shall inspect the item immediately after delivery, insofar as this is feasible in the ordinary course of business, subject it to a functional test if necessary and, if a defect becomes apparent, notify us immediately. The customer shall handle the item with the care of a prudent businessman. The duty to examine also exists if selection samples are sent. If the notification is omitted, any liability for defects of the item shall be excluded.

(b) The quality of the item shall be deemed to have been approved if we do not receive a notice of defect within 14 days after delivery of the item. Hidden defects that cannot be discovered within the aforementioned period can only be asserted against us if the notice of defect is received within one year after the handover of the item.

(2) If the customer is not a person within the meaning of § 310 para. 1 BGB (German Civil Code) applies: In the case of delivery, the customer must inspect the item immediately upon receipt for obvious damage and, in the case of damage, send us a notice of defect within 1 month of delivery of the item. Para. 1(b) sentence 1 shall apply mutatis mutandis in this respect.

(3) The above provisions shall not apply if and to the extent that we have given a guarantee of quality or an assurance or have fraudulently concealed a defect.

§ 6 Claims for defects of the customer

(1) If the item is defective, we shall be entitled, at our discretion, to rectify the defect twice or to make a replacement delivery/production. § 635 para. 3 BGB remains unaffected.

(2) The customer shall only be entitled to demand subsequent performance, reduction of the agreed remuneration (reduction) or rescission of the contract (withdrawal) at its discretion after the second rectification of defects or defective replacement delivery/production has been unsuccessful. In the case of a contract for work and services, the customer shall furthermore be entitled to remedy the defect itself and to demand reimbursement of the expenses required for this. In the cases of §§ 439 para. 3, 635 para. 3 BGB (German Civil Code), the customer is immediately entitled, in deviation from sentence 1, to demand a reduction of the agreed remuneration (abatement) or cancellation of the contract (withdrawal).

(3) In the case of the delivery of used goods, notwithstanding paragraphs 1 and 2, the assertion of supplementary performance, reduction and withdrawal within the scope of liability for defects shall be excluded.

(4) The assertion of claims for damages against us within the scope of liability for defects shall be excluded outside of damage to body, life and health insofar as the damage is attributable to a slightly negligent breach of non-contractual duties by our executive bodies or vicarious agents. The assertion of claims for damages in lieu of performance shall also be excluded within the scope of liability for defects in the event of a slightly negligent breach of duty by our legal representatives or vicarious agents.

(5) Paragraphs 1 to 3 and par. 4 sentence 2 shall only apply if they are customers within the meaning of § 310 para. 1 BGB acts

(6) Our liability for defects shall not be excluded – in deviation from the above provisions – if and to the extent that we have given a quality guarantee or warranty or fraudulently concealed a defect.

(7) Insofar as liability is excluded or limited above, this shall also apply with regard to the personal liability of our employees, staff and organs as well as our vicarious agents including their employees, staff and organs.

§ 7 Limitation of claims for defects

(1) If the customer is a person within the meaning of § 310 para. 1 BGB (German Civil Code), claims for defects in the manufacture and delivery of new goods shall become time-barred after one year. If the customer resells the item delivered by us in the course of its ordinary business operations, its rights of recourse under Section 478 of the German Civil Code (BGB) shall remain unaffected – in deviation from the periods specified in sentence 1.

(2) If the customer is not a person within the meaning of § 310 para. 1 BGB (German Civil Code), claims for defects shall become statute-barred after two years in the case of manufacture and delivery of new items and after one year in the case of delivery of used items.

(3) Notwithstanding para. 1 and 2, claims for defects in construction services within the meaning of §§ 438 para. 1 No. 2, 634a para. 1 No. 2 BGB in five years. In cases where the VOB/B as a whole has become an integral part of the contract and the customer is a person within the meaning of § 310 para. 1 BGB (German Civil Code), the limitation periods of § 13 No. 4 VOB/B (German Construction Contract Procedures), as amended from time to time, shall apply for the services specified therein, notwithstanding sentence 1.

(4) In the event of liability due to intent or gross negligence and in the cases of § 5 para. (6), the statutory limitation periods shall apply.

§ 8 Other liability

(1) We shall be liable – subject to the provision of § 8 – for whatever legal reason only if the damage is

(a) from culpable injury to life, limb or health, or

(b) the damage is due to an intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents.

(2) We shall also be liable in the event of culpable breach of material contractual obligations, but in the event of slight negligence the amount of liability shall be limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract (material contractual obligations are those whose fulfillment characterizes the contract and on which the customer may rely).

(3) Finally, we shall be liable if and to the extent that we have given a quality guarantee or assurance or fraudulently concealed a defect.

(4) The limitation of liability pursuant to para. 2 shall apply vis-à-vis persons within the meaning of Sec. 310 para. 1 BGB (German Civil Code) in the same way for damages caused due to gross negligence on the part of our employees and staff who are not our legal representatives or vicarious agents.

(5) We shall not be liable for unforeseeable indirect damages, unforeseeable consequential damages or unforeseeable loss of profit, unless a case of para. 1 ago.

(6) Insofar as liability is excluded or limited above, this shall also apply with regard to the personal liability of our employees, staff and organs as well as our vicarious agents including their employees, staff and organs.

§ 9 Product Liability and Civil Liability Act

(1) The provisions of the Product Liability Act shall remain unaffected.

(2) The obligation to pay compensation for property damage in accordance with the Liability Act shall be excluded insofar as legal entities under public law, special funds under public law or merchants within the scope of a contract belonging to the operation of their trade are concerned. Liability under the Liability Act for personal injury remains unaffected.

§ 10 Force majeure and similar

(1) If we are prevented from performing due to force majeure, war, terror, forces of nature, labor disputes at our company or our suppliers, damage to generation, transmission, distribution or communication facilities or computer hardware and software, orders issued by the public authorities or due to other circumstances which are not culpably caused by us and which are beyond our control or which cannot be averted with reasonable technical and economic effort, our performance obligations shall be suspended until these circumstances and their consequences have been eliminated. In such cases, the customer cannot claim any compensation from us. In such cases, we will use all reasonable means to ensure that we can fulfill our obligations under this contract again as soon as possible.

(2) For its part, the customer shall be released from its counter-performance obligations in the case of item 1 for the period of suspension of our obligations.

§ 11 Payment of remuneration; set-off

(1) Means of payment such as bills of exchange, checks and other papers given on account of performance shall not be accepted. All costs for the transmission of the invoice amount owed to us and the risk shall be borne by the customer.

(2) If the customer is a person within the meaning of § 310 para. 1 BGB, the customer’s obligation to pay the invoice amount is not fulfilled until we have received the amount.

(3) The customer may only offset a due counterclaim if it has been legally established or is undisputed. Sentence 1 shall not apply to the customer’s set-off with counterclaims which are directed to the defect-free performance of the contract by us.

§ 12 Maturity

Our claims are due without deduction immediately after receipt of the invoice. For customers participating in the SEPA direct debit scheme, the due amount will be debited 14 days after receipt of the invoice.

§ 13 Advance payment; security deposit

(1) We shall be entitled to demand a reasonable advance payment if, under the circumstances of the individual case, there is reason to believe that the customer will not meet its payment obligations or will not meet them in a timely manner. If an advance payment is required, the customer must be informed of this expressly and in an understandable form. At least the start date, the amount and the reasons for the advance payment, as well as the conditions for its discontinuation must be stated.

(2) If the customer is not willing or able to make an advance payment, we shall be entitled to demand a reasonable amount of security, but not real security. The security shall be returned if and to the extent that its prerequisites have ceased to apply.

(3) The paras. (1) and (2) shall also apply in the event that a not obviously unfounded insolvency petition is filed against the Customer’s assets.

§ 14 Retention of title

(1) In the case of deliveries, the delivered item shall remain our property until payment has been made in full for the main and ancillary items.

(2) In legal transactions with customers within the meaning of § 310 para.1 BGB shall apply in addition:

(a) Para. 1 extends to the payment of all previous claims arising from the business relationship with the customer.

(b) The customer shall be entitled at any time to process the delivered items in the ordinary course of business or to combine them with others. The processing or the combination is carried out for us, whereby we acquire ownership of the objects resulting from the processing or combination. Insofar as our ownership of the item is lost as a result of the processing, the customer shall transfer ownership of the new item created by the processing to us already today.

(c) The customer is entitled to sell the item at any time in the ordinary course of business. He already assigns his claims from the resale to us today.

(d) The customer is not entitled to dispose of the reserved goods in any other way.

(e) The customer is entitled and obliged to collect claims assigned to us.

(f) The aforementioned rights of the customer may be revoked insofar and as long as the customer does not properly fulfill its contractual obligations despite a warning.

(g) The Customer shall carefully store the item and, insofar as this is customary in the individual case, sufficiently insure it against theft and fire at its own expense.

(3) We undertake to release the securities to which we are entitled at the customer’s request insofar as their value exceeds the claims to be secured by more than 20%.

§ 15 Termination of contract

(1) The contract may be terminated for cause.

(2) If a contract for work and services exists, it may be terminated by the Customer at any time. If the customer terminates the contract for work for a reason for which we are not responsible, we shall also receive – in addition to the full remuneration for the work already performed – the contractually agreed remuneration for work not yet performed; however, we must allow ourselves to be credited for that which we save in expenses as a result of the termination of the contract or acquire or maliciously refrain from acquiring through other use of the labor. If the customer does not prove a lower amount or we do not prove a higher amount in an individual case, it shall be presumed that we shall thereafter be entitled to 10 percent of the agreed remuneration attributable to the part of the performance not yet rendered. The right of the customer to terminate the contract for good cause remains unaffected.

(3) Any termination must be in text form to be effective.

§ 16 Jurisdiction

The place of jurisdiction is Essen, provided that the customer is a merchant and no exclusive place of jurisdiction is given. The application of the UN Convention on Contracts for the International Sale of Goods as well as the German conflict of laws is excluded.

§ 17 Data protection

We are entitled to collect, process and use the contact data arising in connection with the contractual relationship within the meaning of the applicable data protection law in its currently valid version and to pass on this data – insofar as necessary in connection with the contractual relationship and its implementation – with the same rights to companies affiliated with the Westenergie Group within the meaning of §§ 15 ff of the German Stock Corporation Act (AktG) and to third parties entrusted with the processing. We have individual tasks and services carried out by carefully selected and commissioned service providers, in particular IT service providers, who are based outside the EU/EEA (third country). Therefore, a third country transfer of personal data takes place. The transfer to third countries takes place in compliance with the data protection requirements of the EU and the applicable national data protection law. To this end, data protection agreements in line with legal requirements are contractually defined with our contractual partners to establish an appropriate level of data protection, including EU standard contractual clauses. You can request a sample of these guarantees from us. Each contracting party shall ensure that the persons concerned have been informed of this. Questions about privacy can be directed to datenschutz@digikoo.de.

§ 18 Text form requirement

There are no verbal ancillary agreements. Additional agreements to this contract as well as amendments to the contract must be made in text form to be effective. This also applies to any amendment or cancellation of this clause.

§ 19 Choice of law

The legal relationship between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods as well as the German conflict of laws is excluded.

§ 20 Customer GTC

This Agreement and its performance shall be governed exclusively by the terms and conditions of this Agreement. Deviating terms and conditions of the customer will not become part of the contract even if DigiKoo does not expressly object to them in individual cases or if the service is performed. Any contract offers of the customer with reference to his terms and conditions are hereby rejected.

§ 21 Profitability & Loyalty

The contracting parties agree that at the time of the conclusion of this contract not all questions of fact and law, arising in particular from

future technical and economic developments resulting from any changes in the statutory provisions or other circumstances material to the contractual relationship can be foreseen and conclusively regulated. The contracting parties agree that the principles of commercial loyalty apply to their cooperation. They mutually assure each other to fulfill the contractual agreements in this spirit and, if necessary, to take into account future changes in the actual or legal circumstances in this sense.

§ 22 Legal succession

Each party shall be entitled by way of singular succession to transfer the rights and obligations under the contract to a legal successor at any time with the consent of the respective other party. Consent may be withheld only if there are concerns about the technical or economic performance of the entrant. Such consent shall not be required if the legal successor is an affiliated company within the meaning of Section 15 AktG. Each transfer shall be notified to the other party in text form without undue delay. In cases of universal succession, in particular under reorganization law, the statutory provisions shall apply. These provisions also apply to repeated legal successions.

§ 23 Compliance with unbundling requirements

(1) The Provider undertakes to comply fully with the statutory unbundling requirements. In particular, data or information within the meaning of Section 6a of the German Energy Industry Act (EnWG) may not be passed on by the Provider to third parties or used in any other way. For the purpose of monitoring compliance with the unbundling requirements, the Customer reserves the right to control and inspect all data and processes relating to the services to be provided under this Agreement at any time and without restriction.

(2) The Provider shall be subject to the instructions of the Customer. The customer may exercise its right to issue instructions by, among other things, issuing individual instructions or procedural and behavioral instructions.

(3) The Customer shall have the right to regularly monitor compliance with the processes and specifications. In this context, it has the right to inspect the relevant business processes and to access all data required for this purpose.

(4) The parties are aware that the unbundling requirements are subject to continuous development. Against this background, the parties agree that legal innovations, requirements and positions of the regulatory authorities must also be taken into account in the contractual relationship. In this context, a contractual adjustment of the service relationship is expressly reserved at the request of the network operator, in particular also with regard to a possible reversal of the transfer of network operator tasks to the service provider. The customer is not obligated to take action against specifications of the responsible regulatory authority. Insofar as the customer also accepts the requirements of the competent regulatory authority with effect on the provider, the provider also accepts the requirements of the competent regulatory authority.

§ 24 Severability clause

(1) If any provision or any provision incorporated herein in the future is or becomes invalid or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby.

(2) If the customer is a person within the meaning of § 310 para. 1 BGB, the parties shall be obliged to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the invalid or unenforceable provision in terms of its economic effect.

(3) The paras. (1) and (2) shall apply mutatis mutandis to any unintended gaps in the contract.

General Terms and Conditions of digikoo GmbH for the leasing of standard software –business customers–

1. general

1.1 These General Terms and Conditions (GTC) serve to regulate the legal framework for the services of digikoo GmbH (hereinafter referred to as the “Provider”) and companies within the meaning of §14 BGB (German Civil Code) (hereinafter referred to as the “Customer”). Entrepreneurs within the meaning of this statutory regulation are natural or legal persons or partnerships with legal capacity who, when concluding the contract, are acting in preparation for or in the exercise of their commercial or independent professional activity.

1.2 The Provider shall provide all services exclusively on the basis of these General Terms and Conditions (GTC). The customer’s general terms and conditions shall not apply, even if the provider has not expressly objected to them.

1.3 These GTC shall also apply if the Provider performs the service to the Customer without reservation in the knowledge of terms and conditions of the Customer that conflict with or deviate from its terms and conditions. In these cases, the acceptance of the service by the customer shall be deemed to be an acknowledgement of these GTC with a simultaneous waiver of the validity of its own GTC, which is hereby accepted in advance.

1.4 Offers are always subject to change. A contract is only concluded by written order confirmation on the part of the provider. If the service is provided by the supplier without the customer having received an order confirmation beforehand, the contract is concluded with the delivery or with the start of the performance of the service.

2 Subject matter of the contract, services, rights of use

2.1 The Provider shall enable the Customer to use the Software Application in accordance with the respective Service Specification (hereinafter – also in case of plural – ,,APPLICATION“) and its functionalities to the extent agreed in the service certificate by means of a web browser (e.g. “Safari” and “Firefox“) or an app (hereinafter ,,ACCESS SOFTWARE“) against payment of the agreed fee. To the extent necessary for the contractual use, this also includes the granting or procurement of rights of use to the APPLICATION. and the ACCESS SOFTWARE – hereinafter collectively referred to as the SOFTWARE – by the the Provider.

Furthermore, the customer shall receive pursuant to Clause 4.1 an application documentation for the APPLICATION. The application documentation is provided via a download link.

The APPLICATION shall be provided for the contractual use specified in the contract or the performance certificate or in the order confirmation. The nature, scope, operating conditions and system environment of the APPLICATION shall also result from the respective contract or agreement, unless otherwise agreed in individual cases. Performance Certificate or the order confirmation, in each case with the corresponding product description, and additionally, if necessary, from the application documentation, in this order.

2.2 The Provider shall keep the APPLICATION agreed in the performance certificate from the time agreed in the performance certificate on a central data processing system or several data processing systems – also in case of a plurality – hereinafter referred to as “SERVER“) in the area of the European Union for use in accordance with the following provisions. The availability of the provided services results from the service certificate.

2.3 The customer, hereinafter referred to as “USER”, shall have the simple, non-exclusive right to use the subject matter of the contract for the duration of the rental period within the scope of the contractually agreed purpose of use in its and for its network area.

Insofar as it is agreed in the performance certificate that the Customer is also granted the right to enable his customers to use the APPLICATION within the scope of his proper business operations and under his name for the duration of the rental period, the Customer and his customers authorized by him to use the APPLICATION in accordance with the contract shall also be referred to below – insofar as they are affected as a whole – as “USERS”.

2.4 APPLICATION AND APPLICATION DATA

2.4.1 The Provider shall keep on the SERVER, as of the time of operational provision agreed in the Service Agreement, for the data generated by the USER by using the APPLICATION and/or the data required for using the APPLICATION (hereinafter ,,APPLICATION DATA“) provides storage space to the extent agreed upon in the service agreement. Further details on storage space and APPLICATION DATA will be provided, if necessary, in the performance certificate agreed.

2.4.2 The APPLICATION and the APPLICATION DATA are backed up by the Provider on the SERVER on a regular basis, at least every calendar day. For the possible required compliance with commercial and tax retention periods on the part of the USER, the provider is not responsible.

2.4.3 The transfer point for the APPLICATION and the APPLICATION DATA is the router output of the respective data center of the Provider; the details are regulated in the performance certificate.

2.4.4 Agreements on system requirements on the part of the USER are also made in the service certificate. The provider is not responsible for the condition of the required hardware and software on the side of the USER as well as for the telecommunication connection between the USER and the provider up to the transfer point.

2.5 ACCESS SOFTWARE

Access to the SERVER shall be exclusively by means of a web browser or app; any necessary technical or professional details of access using the ACCESS SOFTWARE shall be agreed in the service certificate.

2.6 The supplier shall provide the customer with the following information, if applicable. improved new versions in the following “NEW VERSIONS” of the APPLICATION – with at least the same performance content as that of the APPLICATION made available for use upon conclusion of the contract. The provisions made between the parties shall apply accordingly to these NEW VERSIONS.

2.7 Adaptations or modifications of the SOFTWARE on which the APPLICATION is based as well as the creation of interfaces to third party programs by the Provider shall only be owed to the extent that they are necessary for the maintenance or repair or to secure the performance of the SOFTWARE as defined in the contract defined in the contract or the performance certificate.

2.8 Any analysis, planning and related consulting services for the contract or service certificate shall only be provided by the Provider on the basis of a separate contract.

2.9 The subject matter of the contract is provided for the exclusive use of the USER. The USER shall receive the non-exclusive right, limited in time to the term of the contract, to access the APPLICATION by means of telecommunication (via the Internet) or to use the functionalities associated with the SOFTWARE by means of the ACCESS SOFTWARE – in accordance with the provisions in the contract – for his own – insofar as it is not a question of the customer, who is entitled to go further in accordance with section 2.3 – merely internal purposes in accordance with the contract. The USER shall not receive any further rights, in particular to the SOFTWARE or the infrastructure services provided in the respective computer centre.

The USER is not entitled to use the SOFTWARE beyond the use permitted in accordance with the contract.

2.10 The provider is entitled to take appropriate technical measures to protect against non-contractual use. The use of the services in accordance with the contract must not be impaired by this.

2.11 The Provider may revoke the right of use vis-à-vis the respective USER if the USER not only insignificantly violates restrictions of use or other regulations to protect against unauthorized use.

3. Technical availability of the APPLICATION and access to the APPLICATION DATA, response and recovery times.

3.1 The provider shall owe the availability of the APPLICATION and the APPLICATION DATA at the Delivery Point as agreed in the Service Level Agreement in accordance with section 2.4.3. By availability, the parties mean the technical usability of the APPLICATION and the APPLICATION DATA at the Delivery Point for use by the USER, if necessary using the ACCESS SOFTWARE.

3.2 All details regarding the availability, in particular the technical parameters and procedures for measuring and determining the availability, are set out in the performance certificate. The Performance certificate determines in particular

– the system usage time, the core usage time and the edge usage time,

– the time when the provider performs regular or scheduled maintenance or repairs (maintenance window),

– the reference period within which the availability is calculated,

– the degree of availability in % within the core utilization time and marginal utilization time,

– the maximum permissible uninterrupted downtime per agreed time unit for the core usage time and the marginal usage time,

– Details of sanctions in case of non-compliance with availability.

3.3 At performance certificate the parties further agree on reaction times which shall apply in the event of unavailability and/or in the event of material defects in the the APPLICATION and/or the APPLICATION DATA, including any penalties for non-compliance. sanctions in the event of non-compliance.

4. Other services of the provider

4.1 The Provider shall provide the Customer once at the beginning of the contract with an electronic, printable user manual in German for each APPLICATION. via a link for download.

If the Provider provides third party software as an APPLICATION and no documentation in German/English is generally available from this third party, the Provider shall be entitled to provide only the documentation accessible to it.

The customer shall be entitled to store, print and reproduce in reasonable numbers for the purposes of this contract the documentation provided, while maintaining existing property right notices. In all other respects, the provisions set forth under Clause 2.9 for the APPLICATION shall apply mutatis mutandis to the documentation.

4.2 Further services of the provider can be agreed in writing at any time. Such further services shall be provided against reimbursement of the proven expenses at the provider’s prices generally applicable at the time of the order.

5. Benefit exclusions

The subject of this contract is not:

– the fault management of faults, which are connected with the use of the ACCESS SOFTWARE in non-approved environments or with modifications of the ACCESS SOFTWARE by the USER or third parties,

– Upgrades of the APPLICATION or the ACCESS SOFTWARE, i.e. more advanced versions with significant functional enhancements.; Upgrades, if any, may be obtained for a fee on the basis of a separate agreement,

– the transfer of other software,

– the installation of updates and upgrades and other new software, unless expressly agreed otherwise,

– the elimination of malfunctions or failures caused by third party violence, force majeure, equipment not maintained by the USER or improper handling (non-compliance with application documentation and non-functional use) of the USER,

– the elimination of malfunctions or failures which are based on the fact that the hardware and software used by the USER is not capable of correctly executing program sequences or correctly processing data sets, in particular of completely and correctly recognizing, calculating or running them, due to insufficient technical performance.

– additionally agreed on-site assignments at the customer’s premises, consulting and support for modified software, clarification of interfaces to third-party systems, installation as well as configuration support, especially for additional software or hardware.

6. Charge

6.1 The fee to be paid by the customer results from the contract or the service certificate.

6.2 Unless otherwise agreed in the individual case, the prices are net plus the respective legally owed value added tax of currently 19%.

6.3 The remuneration includes the payment for the provision of the subject matter of the contract during the term of the contract in the condition as stipulated in the contract.

6.4 Unless otherwise agreed in individual cases, the fee shall be paid monthly in advance by the fifth working day of each month at the latest, free of any deductions. The obligation to pay the fee begins with the determination of readiness for operation in accordance with
Section 7 or the start of productive use of the subject matter of the contract by the customer, whichever is earlier. For the month in which the readiness for operation is brought about, the fee for each day following the day of readiness for operation shall be 1/30 of the amount agreed upon in the service certificate as the monthly fee.

6.5 Payment of the fee shall be made to one of the Provider’s accounts designated on the invoice. A payment is not considered made until it is credited to one of the Provider’s bank accounts.

6.6 If the customer does not settle a claim in full or in part by the contractual due date, the provider is entitled to revoke any agreements made on payment terms for all claims outstanding at that time and to make them due immediately. The supplier is also entitled to perform further services only against advance payment or a security in the form of a performance bond of a credit institution or credit insurer licensed in the European Union.

6.7 In the event of the Customer’s economic inability to fulfill its obligations to the Provider, or in the event of an application for insolvency by the Customer, the Provider may terminate the contract without notice. § Section 321 BGB and Section 112 InsO shall remain unaffected. The Customer shall inform the Provider in good time of any impending insolvency.

6.8 The provider is entitled to charge interest in the amount of 5% at maturity. In the event of default, the Provider shall be entitled to charge interest at a rate of 9 percentage points above the base interest rate. The right of the provider to claim higher damages remains unaffected.

6.9 The customer may only offset or withhold payments due to defects if he is actually entitled to claims due to material defects and/or defects of title. Clause 8.2 shall apply accordingly. The customer has no right of retention if his claim is time-barred. The exercise of a right of retention by the customer with a counter right that is not based on a right from the contract underlying these General Terms and Conditions of Business is excluded.

6.10 The Provider shall, at its reasonable discretion, adjust the remuneration to be paid on the basis of the contract to the development of the costs which are decisive for the price calculation. A price increase shall be considered and a price reduction shall be made if and to the extent that, e.g., its rental costs, energy costs, personnel costs, costs of equipment and rights of use incurred for the maintenance of the subject matter of the contract increase or decrease. Increases in one type of cost, e.g. energy costs, may only be used for a price increase to the extent that they are not offset by any decreases in costs in other areas, such as rental costs. In the event of cost reductions, the Provider shall reduce prices to the extent that such cost reductions are not fully or partially offset by increases in other areas. In exercising its reasonable discretion, the Provider shall select the respective points in time of a price change in such a way that the cost reductions are not taken into account according to standards that are less favorable for the Customer than the cost increases, i.e. cost reductions shall have at least the same price effect as cost increases. As soon as the annual remuneration increases by more than 5 %, the customer shall be entitled to terminate the contract extraordinarily with effect from the time the increase takes effect, subject to a notice period of six weeks after receipt of the request for increase.

6.11 The Provider may demand remuneration for the work performed in excess of that set out in Clause 6.1 insofar as:

• a reported defect is related to the use of the subject matter of the contract in an unapproved environment or to modifications made to the subject matter of the contract by the customer or third parties,
• additional work is incurred due to the Customer’s failure to properly fulfil its obligations (see in particular Clause 11).

Insofar as the Provider is entitled to demand remuneration for the work performed in excess of that set out in Clause 6.1, such remuneration shall, unless otherwise agreed in writing between the Parties, be invoiced at the Provider’s list prices and hourly, daily and expense rates and settlement sections applicable at the time the services are performed; a list to this effect shall be sent out on request.

7. determination of readiness for operation

The Provider and the Customer shall, after the Provider has made the subject matter of the Contract available to the Customer, jointly determine the proper operational readiness. For this purpose, the Provider and the Customer shall, if necessary, satisfy themselves that the SOFTWARE provided is in a condition in accordance with the contract on the basis of criteria agreed in the contract or service certificate. As far as the operational readiness is given, the customer will confirm this on a corresponding form of the provider.

8. material defects

8.1 The Provider undertakes vis-à-vis the Customer to maintain the subject matter of the contract in a condition suitable for use in accordance with the contract for the duration of the contract period.

8.2 In case of an only insignificant reduction of the suitability for the contractual use, there shall be no claims due to defects of the subject matter of the contract. Claims for such defects are also excluded if the deviation from the contractual quality is due to improper use or the use of the subject matter of the contract under non-agreed conditions of use or a non-agreed system environment. The same applies to such deviations that arise due to special external influences that are not contractually presupposed.

8.3 The strict liability of the provider according to § 536 a para. 1 BGB (German Civil Code) due to defects that were already present at the time the contract was concluded is excluded.

8.4 The customer shall notify any defects in writing in a comprehensible and detailed form, stating the information required for the detection and analysis of the defect. As far as possible, this information shall include in particular the work steps that led to the occurrence of the defect, the mode of appearance and the effects of the defect. Unless otherwise agreed, the customer shall use the relevant forms and procedures of the supplier for this purpose; Section 17.1 sentence 3 shall apply accordingly. In addition, the customer shall also support the provider as far as necessary in the elimination of defects. The customer shall exercise any right of choice to which it may be entitled with regard to claims for defects within a reasonable period of time; as a rule, this period of time shall be two weeks from the time the customer becomes aware of the defect.

8.5 Defects shall be remedied within the business hours of the supplier by free rectification. The provider shall be granted a reasonable period of time for this purpose.

8.6 Termination by the customer pursuant to Section 543 (2) sentence 1 no. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) for failure to provide use in accordance with the contract shall only be permissible if the provider has been given sufficient opportunity to remedy the defect and this has failed. The rectification of defects shall only be deemed to have failed if it is impossible, if it is refused or unreasonably delayed by the provider, if there are reasonable doubts as to the prospects of success or if it is unreasonable for the customer for other reasons.

8.7 The Customer’s rights to warranty for defects shall be excluded insofar as the Customer makes or has made changes to the subject matter of the contract without the Provider’s prior consent, unless the Customer proves that the changes do not have any effects on the analysis and elimination of the defect that are unreasonable for the Provider.

8.8 The limitation period for material defects is one year from the statutory commencement of the limitation period. The statutory periods shall remain unaffected in the event of an intentional or grossly negligent breach of duty by the Provider, in the event of fraudulent concealment of a defect and in cases of injury to life, limb or health as well as for claims under the Product Liability Act.

8.9 The Provider may demand compensation for its expenses to the extent that

• he acts on the basis of a report without there being a defect, unless the customer could not with reasonable effort have recognized that there was no defect, or
• additional expense due to improper fulfillment of the customer’s obligations, in particular pursuant to Clause 11 arises.

8.10 The following shall apply in addition to claims for damages and reimbursement of expenses Clause 10.1-10.4.

9. defects of title

9.1 The provider shall only be liable to the customer for an infringement of third party rights caused by its service insofar as the service is used by the respective USER in accordance with the contract, in particular in the contractually intended environment of use. The liability for the infringement of third party rights is furthermore limited to third party rights within the European Union and the European Economic Area as well as at the place of the contractual use of the service. Clause 8.2 p. 1 shall apply accordingly.

9.2 If a third party claims against the customer that a service of the provider violates his rights, the customer is obliged to notify the provider immediately. The Provider shall be entitled, but not obliged, to defend the asserted claims at its own expense to the extent permissible.

9.3 If the rights of third parties are infringed by a service of the Provider, the Provider shall, at its own discretion and at its own expense:

• provide the customer with the right to use the service or
• make the performance non-infringing.

The interests of the customer are given due consideration.

9.4 The customer shall exercise its right of choice within a reasonable period of time. This shall generally amount to two weeks.As a rule, this period shall be two weeks.

9.5 Claims of the customer due to defects of title shall become statute-barred in accordance with clause 8.8. The following shall apply in addition to claims for damages and reimbursement of expenses Clause 10.1-10.4.

10. liability

10.1 The Provider shall be liable for damages

• for damages caused by him as well as his legal representatives or vicarious agents intentionally or by gross negligence,
• in accordance with the Product Liability Act and
• for damages resulting from injury to life, body or health for which the provider, its legal representatives or vicarious agents are responsible.

10.2 The Provider shall be liable in the event of slight negligence insofar as it or its legal representatives or vicarious agents have breached a material contractual obligation (so-called cardinal obligation), the fulfillment of which makes the proper performance of the contract possible in the first place or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which (as, for example, in the case of the obligation to provide defect-free performance) the Customer may regularly rely. Otherwise, liability for slight negligence is excluded.

Insofar as the provider is liable for slight negligence, the liability for property damage and financial loss is limited to the foreseeable damage typical for the contract. Liability for other, remote consequential damages is excluded. For a single claim, liability per claim is limited to six times the monthly rent. The liability according to Clause 10.1 shall remain unaffected by this paragraph.

10.3 The following shall apply to the limitation period Clause 8.8 accordingly.

10.4 In the event of loss of data, the Provider shall only be liable for the expenditure required to restore the data in the event of proper data backup. In the event of slight negligence on the part of the Provider, this liability shall only apply if a proper data backup was performed immediately prior to the action leading to the data loss.

10.5 The following shall apply to claims for reimbursement of expenses and other liability claims of the Customer against the Provider Clause 10.1-10.4 accordingly.

11. duties and obligations of the customer

The customer will fulfill all duties and obligations necessary for the execution of the contract. He will in particular:

1. keep secret any usage and access authorisations assigned to him or to the USERS as well as any identification and authentication safeguards agreed in Clause 2.3 in conjunction with the service certificate, protect them from access by third parties and not pass them on to unauthorised persons. Such data shall be protected by suitable and customary measures, in particular by changing them to names and passwords known only to him. Any further security measures are agreed in the service certificate. The customer shall inform the provider immediately if there is any suspicion that the access data and/or user names and passwords may have become known to unauthorised persons and shall also impose this obligation on the third parties authorised by him;
2. create the access requirements agreed in Clause 2 in conjunction with the service description in the service certificate;
3. comply with the restrictions/obligations with regard to the rights of use pursuant to Clause 2.9, in particular

a) not to retrieve or cause to be retrieved any information or data without authorization or to interfere or cause to be interfered with programs operated by the Provider or to intrude or promote such intrusion into data networks of the Provider without authorization and to impose this obligation also on third parties authorized by the Provider;
b) not to misuse the exchange of electronic messages possible within the scope of the contractual relationship and/or by using the SOFTWARE for the unsolicited sending of messages and information to third parties for advertising purposes and to impose this obligation also on the third parties authorized by him;
c) indemnify the provider from claims of third parties, which are based on an illegal use of the access use of the ACCESSORY SOFTWARE and/or the APPLICATION by the respective USER or which arise from data protection, copyright or other legal disputes caused by a USER which are connected with the use of the ACCESSORY SOFTWARE and/or the APPLICATION. are connected;
d) oblige the authorized USERS, for their part, to comply with the provisions of this Agreement applicable to them;

4. ensure that (e.g. when transmitting texts/data of third parties on the SERVER of the Provider) it observes all rights of third parties to material used by it and also impose this obligation on third parties authorized by it;
5. obtain the required consent of the respective data subject in accordance with Clause 13.2, insofar as he/she collects, processes or uses personal data when using the SOFTWARE and no statutory permissible circumstance applies;
6. before sending data and information to the Provider, check them for viruses and use state of the art virus protection programs and impose this obligation also on third parties authorized by him;
7. to notify the Provider without delay of any disruptions to contractual services, in particular defects in the services in accordance with Clause 8 and 9. To this end, the customer must report any faults in writing in a comprehensible form, stating all information required for fault detection and analysis. In particular, the work steps which led to the occurrence of the malfunction, the mode of appearance and the effects of the malfunction shall be stated. For this purpose, the customer shall use the corresponding forms and procedures of the provider specified in the service certificate. If the customer fails to give timely notice for reasons for which he is responsible, this shall constitute contributory causation or contributory negligence. Insofar as the Provider was unable to remedy the situation as a result of the omission or delay of the notification, the Client shall not be entitled to reduce the remuneration in whole or in part in accordance with Clause 6 of the Contract, to demand compensation for the damage caused by the defect or to terminate the Contract extraordinarily on account of the defect without observing a period of notice. The customer shall demonstrate that he is not responsible for the failure to report the defect; furthermore, the customer shall support the provider as far as necessary in the elimination of faults.

8. the provider immediately in writing (Clause 17.1 S. 3) about changes in its operational environment. The Customer shall also inform the Provider without delay of any disruptions resulting from its area of responsibility (e.g., of the network operator, access provider) and their expected duration. If the Provider’s expenses increase, the Provider may also, without prejudice to other claims, demand compensation for the additional expenses it has incurred, unless in the event of a disruption the Customer is not responsible for the disruption and its cause lies outside its sphere of responsibility. Compensation for the additional work shall be calculated at the Provider’s list prices and hourly, daily, and expense rates and billing sections in effect at the time the services are performed. The Customer is not entitled to make any changes to or replacement of the ACCESS SOFTWARE.

9. if he/she transmits data to the Provider for the purpose of generating APPLICATION DATA with the help of the APPLICATION, back them up regularly and in accordance with the importance of the data and make his/her own back-up copies in order to enable the reconstruction of the data and information in case of loss and impose this obligation also on the third parties authorized by him/her;
10. if and insofar as the technical possibility is made available to him by mutual agreement to regularly back up the APPLICATION DATA stored on the SERVER by download; this shall not affect the obligation of the Provider to back up data pursuant to Clause 2.4.2 and to transmit a backup according to Clause 16.1.
11. Ensure that the documents, information and data necessary for the provision of the service are made available to the provider completely, correctly, in good time and free of charge, insofar as these are not owed by the provider. The provider may, unless it recognizes or must recognize the contrary, assume the completeness and accuracy of these documents, information and data.
12. immediately use updates of the SOFTWARE and the application documentation provided by the supplier.

12. use in breach of contract, compensation for damages

12.1 The Provider shall be entitled, in the event of an unlawful breach by the Customer or a USER authorized by the Customer of a material obligation, in particular a breach of the obligations set forth in Clause 11 aforementioned obligations to block access to the APPLICATION and its data. Access by the unlawful party shall not be restored until the breach of the material obligation concerned has been permanently remedied or the risk of recurrence has been eliminated by the submission of an appropriate cease-and-desist declaration to the provider, evidenced by a penalty. The customer remains obligated to pay the agreed fee even in this case.

12.2 In the event of use of the APPLICATION in breach of the contract and after unsuccessful reminder, the Provider shall be entitled to delete the USER’s data concerned, insofar as this is legally permissible.

12.3 In the event of an unlawful violation of the provisions set out in Clause 11 by a USER or in the event of an unauthorized transfer of use, the Customer shall, upon request, immediately provide the Provider with all information necessary to assert claims against the USER, in particular the USER’s name and address.

12.4 For each case in which the Customer culpably enables the use of the APPLICATION by USERS or third parties not authorized by the Customer, the Customer shall in each case pay damages in the amount of the remuneration that would have been incurred in the case of the conclusion of a contract during an ordinary contractual period of 12 months minimum contract duration in the highest remuneration level for an individual USER. The customer reserves the right to prove that there is no damage or that the damage is significantly less. The provider remains entitled to claim further damages.

12.5 If the contractual use of the APPLICATION is impaired by third party property rights through no fault of the Provider, the Provider shall be entitled to refuse the services affected thereby. The Provider shall inform the Customer of this without delay and enable the Customer to access its data in a suitable manner. In this case, the customer is not obliged to pay. Other claims or rights of the customer remain unaffected.

13. data protection and data security

13.1 The Provider shall treat all information it receives for the performance of the contract as confidential, shall only collect, process or use it for the purpose specified in the contract, shall process it in accordance with the applicable data protection law as amended from time to time and shall only have it collected, processed or used by employees who have undertaken to maintain confidentiality.

13.2
If the Customer collects, processes or uses personal data in connection with the contract, it warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify the Provider against claims by third parties in the event of a breach.

13.3 Insofar as the Provider can access personal data stored on systems of the Customer or by the Customer on systems provided by the Provider, the Provider shall act exclusively as a processor pursuant to Art. 28 of the General Data Protection Regulation (DS-GVO)) and may process and use such data only for the performance of the contract. The Provider shall comply with the legal requirements of commissioned processing and instructions from the Customer (e.g. to comply with deletion and blocking obligations) for handling this data.

The customer shall bear any adverse consequences of such instructions for the performance of the contract.

13.4 During the validity of the contract, the Provider shall be entitled – within the limits permitted by data protection law – to use personal data of the Customer which are required for the performance of this contract (e.g. for the billing of services).

13.5 The SOFTWARE, data center infrastructure services and other system components required for the provision of the APPLICATION shall be operated in a data center (if necessary also in a computer network) by commissioned service providers.

14. dates and deadlines

14.1 Dates and deadlines are binding if they have been agreed in writing as binding by the provider and the customer in the individual case. Unless otherwise agreed, the period begins with the conclusion of the contract or with the dispatch of the order confirmation.

The agreement of a fixed date of performance shall be subject to the proviso that the Supplier, for its part, receives the deliveries and services necessary for it from its respective upstream suppliers in good time and in accordance with the contract.

14.2 If non-compliance with a specific performance time is due to events for which the Provider is not responsible (including strike or lockout), the performance dates shall be postponed by the duration of the disruption, including a reasonable start-up phase.

14.3 If the Provider is in default with the provision of the service in whole or in part, the Customer’s compensation for damages and expenses due to default shall be limited to 0.5% of the price for the part of the service that cannot be used due to the default for each full week. The liability for delay is limited in total to 5 % of the total price of the respective order. This does not apply if the delay is due to gross negligence or intent on the part of the supplier.

14.4 In the event of a delay in performance, the customer shall only have a right of withdrawal within the framework of the statutory provisions if the delay is the responsibility of the provider.

If the Customer justifiably claims damages or reimbursement of expenses in lieu of performance due to the delay, the Customer shall be entitled to claim 1% of the price for the part of the performance that cannot be used due to the delay for each full week of the delay, but in total not more than 10% of the total price of the respective contract value. Clause 14.3 S. 3 applies accordingly.

15. term of contract/end of contractual relationship

15.1 The contract shall be effective as of the agreed date initially for the duration of the period specified in the performance certificate. agreed term. During this minimum term, ordinary termination is excluded on both sides. The contract may also be terminated with six months’ notice to the end of any calendar year, but no earlier than the end of the longest period of performance agreed under the benefit certificate. If this does not happen, the contract shall be extended by a further year in each case, unless it has been terminated with six months’ notice to the end of the respective extension period. § Section 545 BGB shall not apply.

15.2 The customer’s right of termination pursuant to Clause 6.10 and according to Clause 8.6 as well as the right of each party to extraordinary termination for good cause shall remain unaffected.

15.3 Any notice of termination must be in writing to be effective; Clause 17.1 S. 3 shall apply accordingly.

16. return of the subject of the contract/data exchange

16.1 At the time agreed in the performance certificate, but at the latest upon termination of the contractual relationship, the Provider shall store the APPLICATION DATA and any other data stored by the Customer. otherwise on the after Clause 2.4 provided mass storage device as far as there are no data protection concerns of third parties to the contrary, provide the customer with the option to export its data to the database via a link to the download. The customer is obligated to save his corresponding data immediately after transmission of the download link by download, since it cannot be guaranteed that access to the data files by the customer is possible after termination of the contractual relationship.

16.2 Upon termination of the Agreement, the Customer shall delete all copies of the ACCESS SOFTWARE on its own data processing equipment. The customer is obligated to provide the provider, upon the provider’s request, with the complete deletion to be confirmed in writing.

17. miscellaneous

17.1 Amendments and supplements to all contracts concluded between the parties shall only be agreed in writing. Text form (§ 126b BGB) satisfies this written form requirement. If written form has been expressly agreed in the contract (e.g. for a contract amendment or withdrawal), text form shall not suffice. Verbal agreements shall only be valid if they are confirmed in text form by the Provider within seven days; a fax or an e-mail shall satisfy the written form requirement.

17.2 The Provider and the Customer are obligated to maintain secrecy regarding business and trade secrets as well as other information designated as confidential that becomes known in connection with their contractual relationship or the resulting contractual relationship. The disclosure of such information to persons who are not involved in the conclusion, implementation or processing of the contractual relationship may – unless a legal obligation exists – only take place with the express written consent of the contractual partner. Unless otherwise agreed, this obligation shall end after the expiry of five years from the date on which the respective information became known, but not before the end of the contractual relationship existing between the Provider and the Customer.

17.3 The Provider and the Customer are aware that electronic and unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, neither the provider nor the customer will therefore assert claims based on the lack of encryption, except to the extent that encryption has been previously agreed.

17.4 All contractual relationships between the parties shall be governed exclusively by the laws of the Federal Republic of Germany.

17.5 The place of performance for all obligations arising from the contractual relationships of the parties is the registered office of the Provider.

17.6 The place of jurisdiction for all legal disputes arising from the contractual relationships of the parties as well as for disputes relating to the creation and effectiveness of these contractual relationships shall be the registered office of the Provider vis-à-vis merchants, a legal entity under public law or a special fund under public law. However, the provider is entitled to sue the customer at his place of business.