Zuletzt aktualisiert: 02.02.2025
Unless otherwise agreed, compensation shall be calculated based on effort at the Provider’s generally applicable prices at the time of contract conclusion. Compensation amounts are generally net prices plus applicable statutory value-added tax.
The Provider may invoice monthly. Where services are compensated based on effort, the Provider shall document the type and duration of activities and transmit this documentation together with the invoice.
All invoices are generally due for payment within 14 calendar days of receipt, free of deductions, at the payment office.
The Customer may only set off claims or withhold payments due to defects to the extent that payment claims actually exist due to material or legal defects in the services. The Customer may only withhold payments due to other defect claims to a proportionate extent considering the defect. Section 4.1 shall apply accordingly. The Customer has no right of retention if their defect claim is time-barred. Otherwise, the Customer may only set off or exercise a right of retention with undisputed or legally established claims.
The Provider reserves ownership and rights to be granted in the services until full payment of the owed compensation; justified defect retentions pursuant to Section 1.3 Sentence 2 shall be taken into account. Furthermore, the Provider reserves ownership until fulfillment of all its claims from the business relationship with the Customer.
The Provider is entitled to prohibit the Customer from further use of the services for the duration of any payment default by the Customer. The Provider may only exercise this right for a reasonable period, generally not exceeding 6 months. This does not constitute withdrawal from the contract. Section 449(2) BGB (German Civil Code) remains unaffected.
If the Customer or their purchasers return the services, acceptance of the services does not constitute withdrawal by the Provider unless the Provider has expressly declared withdrawal. The same applies to attachment of the reserved goods or rights to the reserved goods by the Provider.
The Customer may neither pledge nor transfer as security objects subject to retention of title or rights. The Customer is only permitted to resell as a reseller in the ordinary course of business, provided that the Customer’s claims against their purchasers in connection with the resale have been effectively assigned to the Provider and the Customer transfers ownership to their purchaser subject to payment. By concluding this contract, the Customer assigns their future claims in connection with such sales against their purchasers to the Provider as security, and the Provider hereby accepts this assignment.
Insofar as the value of the Provider’s security rights exceeds the amount of the secured claims by more than 20%, the Provider shall release a corresponding portion of the security rights upon the Customer’s request.
The Customer is obligated to impose the contractually agreed restrictions on the recipient when permissibly transferring rights of use in deliveries and services.
If the Customer fails to settle a due claim in whole or in part at the contractual payment date, the Provider may revoke agreed payment terms for all claims. The Provider is further entitled to perform further services only against advance payment or against security by a performance bond from a credit institution or credit insurer licensed in the European Union. The advance payment must cover the respective billing period or, in the case of one-time services, their compensation.
In the event of the Customer’s economic inability to fulfill their obligations to the Provider, the Provider may immediately terminate existing exchange contracts with the Customer by withdrawal and continuing obligations by termination, including in the event of an insolvency application by the Customer. Section 321 BGB (German Civil Code) and Section 112 InsO (German Insolvency Code) remain unaffected. The Customer shall inform the Provider in writing at an early stage of any imminent insolvency.
Fixed performance dates shall only be agreed expressly in documented form. The agreement of a fixed performance date is subject to the Provider receiving the services of its respective suppliers in a timely and contractual manner.
The Customer and Provider shall each designate a responsible contact person. Unless otherwise agreed, communication between the Customer and the Provider shall be conducted through these contact persons. The contact persons must bring about all decisions related to contract performance without delay. Decisions must be documented in a binding manner.
The Customer is obligated to support the Provider as required and to create all conditions necessary for proper order execution in their operational sphere. In particular, the Customer shall provide necessary information and, where possible, enable remote access to the Customer’s system. If remote access is not possible for security or other reasons, affected deadlines shall be extended appropriately; the contracting parties shall agree on an appropriate arrangement for further effects. The Customer shall also ensure that qualified personnel are available to support the Provider.
Where the contract provides that services may be performed on-site at the Customer’s premises, the Customer shall provide adequate workplaces and work equipment free of charge at the Provider’s request.
Unless otherwise agreed, the Customer shall ensure proper data backup and contingency planning for data and components (e.g., hardware, software) appropriate to their nature and significance.
The Customer shall report defects immediately in a comprehensible and detailed manner, providing all information useful for defect detection and analysis in writing. In particular, the work steps that led to the defect, the manifestation of the defect, and the effects of the defect shall be stated. Unless otherwise agreed, the Provider’s corresponding forms and procedures shall be used for this purpose.
The Customer shall reasonably support the Provider upon request in examining and asserting claims against other parties in connection with service provision. This applies in particular to the Provider’s recourse claims against suppliers.
The contracting parties are obligated to maintain confidentiality regarding trade secrets and other information designated as confidential (e.g., in documents, records, databases) that becomes known in connection with contract performance, and not to use or disclose such information beyond the purpose of the contract without the written consent of the other contracting party.
The receiving contracting party is obligated to take appropriate confidentiality measures for trade secrets and information designated as confidential. The contracting parties are not entitled to obtain trade secrets of the other contracting party through observation, examination, reverse engineering, or testing of the subject matter of the contract. The same applies to other information or items received during contract performance.
Disclosure of trade secrets and other information designated as confidential to persons not involved in the conclusion, performance, or settlement of the contract may only be made with the written consent of the respective other contracting party.
Unless otherwise agreed, the obligation to maintain confidentiality for other information designated as confidential shall end five years after disclosure of the respective information, but not before termination of any continuing obligations. Trade secrets shall be kept confidential indefinitely.
The contracting parties shall impose these obligations on their employees and any third parties engaged.
The contracting parties are aware that electronic and unencrypted communication (e.g., by email) is subject to security risks. In this type of communication, they shall therefore not assert any claims based on the lack of encryption, unless encryption was previously agreed upon.
If a cause not attributable to the Provider, including strike or lockout, impairs schedule compliance (“Disruption”), the deadlines shall be postponed by the duration of the Disruption, including, if necessary, a reasonable restart period. A contracting party must immediately notify the other contracting party of the cause of a Disruption occurring in their area and the duration of the postponement.
If the effort increases due to a Disruption, the Provider may also demand compensation for the additional effort, unless the Customer is not responsible for the Disruption and its cause lies outside their area of responsibility.
If the Customer can withdraw from the contract due to improper performance by the Provider and/or demand damages in lieu of performance, or claims to do so, the Customer shall, at the Provider’s request, declare in writing within a reasonable period whether they assert these rights or wish the performance to continue. In the event of withdrawal, the Customer shall reimburse the Provider for the value of previously existing usage possibilities; the same applies to deterioration caused by intended use.
If the Provider is in default of service provision, the Customer’s damages and expense reimbursement due to the default shall be limited to 0.5% of the price for each complete week of default for the part of the contractual service that cannot be used due to the default. The default liability is limited to a total of not more than 5% of the compensation for all contractual services affected by the default; in the case of continuing obligations, related to the compensation for the respective affected services for the full calendar year. Additionally and with priority, a percentage of the compensation agreed at contract conclusion shall apply as agreed at contract conclusion. This shall not apply insofar as the default is due to gross negligence or intent on the part of the Provider.
In the event of a delay in performance, the Customer has a right of withdrawal within the scope of the statutory provisions only if the delay is attributable to the Provider. If the Customer justifiably claims damages or expense reimbursement in lieu of performance due to the delay, they are entitled to claim 1% of the price for each complete week of delay for the part of the contractual service that cannot be used due to the delay, but not more than 10% of this price in total; in the case of continuing obligations, related to the compensation for the respective affected services for the full calendar year. Additionally and with priority, a percentage of the compensation agreed at contract conclusion shall apply as agreed at contract conclusion.
The Provider warrants the contractually owed quality of the services. There are no claims for material defects for only insignificant deviations of the Provider’s services from the contractual quality.
Claims for defects also do not exist in cases of excessive or improper use, natural wear and tear, or failure of components of the system environment. The same applies to software errors that cannot be reproduced or otherwise demonstrated by the Customer. This also applies to damage caused by special external influences not assumed under the contract. Claims for defects likewise do not exist in the case of subsequent modification or repair by the Customer or third parties, unless these do not complicate the analysis and rectification of a material defect.
For claims for damages and expense reimbursement, Section 6 shall apply additionally.
The limitation period for material defect claims is one year from the statutory commencement of limitation. The statutory periods for recourse under Section 478 BGB (German Civil Code) remain unaffected.
The same applies insofar as the law prescribes longer periods pursuant to Section 438(1)(2) BGB (German Civil Code) or Section 634a(1)(2) BGB (German Civil Code), in cases of intentional or grossly negligent breach of duty by the Provider, in cases of fraudulent concealment of a defect, and in cases of injury to life, body, or health, as well as for claims under the Product Liability Act.
Processing of a material defect notice from the Customer by the Provider only leads to suspension of the limitation period to the extent that the statutory requirements are met. A new commencement of the limitation period does not occur as a result.
Subsequent performance (new delivery or repair) can only affect the limitation of the defect triggering the subsequent performance.
Recourse claims in contracts for digital products pursuant to Section 327u BGB (German Civil Code) remain unaffected by Sections 4.1 and 4.2.
If a purchaser asserts a claim against the Customer that may lead to a recourse claim, the Customer shall immediately inform the Provider of the asserted claim and the further information necessary and useful for its assessment. The Customer shall give the Provider the opportunity to satisfy the claim asserted by the Customer’s purchaser, unless this is unreasonable for the Customer. The Customer and the Provider shall coordinate and cooperate with the aim of satisfying a justified claim of the Customer’s purchaser as cost-effectively as possible.
The Provider may demand compensation for their effort insofar as
a) they act on the basis of a notification without a defect existing, unless the Customer could not recognize with reasonable effort that no defect existed, or
b) a reported disruption cannot be reproduced or otherwise demonstrated by the Customer as a defect, or
c) additional effort arises due to improper fulfillment of the Customer’s obligations (see also Sections 2.2, 2.3, 2.4, and 5.2).
The Provider is only liable for infringements of third-party rights by their services insofar as the services are used unchanged in accordance with the contract and, in particular, in the contractually agreed or otherwise intended operating environment.
The Provider is only liable for infringements of third-party rights within the European Union and the European Economic Area and at the place of contractual use of the services. Section 4.1 Sentence 1 shall apply accordingly.
If a third party asserts against the Customer that a service of the Provider infringes their rights, the Customer shall notify the Provider immediately. The Provider and, where applicable, their suppliers are entitled, but not obligated, to defend against the asserted claims at their own expense to the extent permissible.
The Customer is not entitled to acknowledge third-party claims before giving the Provider reasonable opportunity to defend against third-party rights in another manner.
If third-party rights are infringed by a service of the Provider, the Provider shall, at their own choice and expense,
a) procure for the Customer the right to use the service, or
b) make the service free of infringement, or
c) take back the service with reimbursement of the compensation paid by the Customer therefor (less appropriate compensation for use) if the Provider cannot achieve any other remedy with reasonable effort.
The Customer’s interests shall be appropriately considered.
Claims by the Customer for legal defects shall become time-barred in accordance with Section 4.2. For claims by the Customer for damages and expense reimbursement, Section 6 shall apply additionally; for additional effort by the Provider, Section 4.3 shall apply accordingly.
The Provider shall always be liable to the Customer
a) for damages caused intentionally or through gross negligence by the Provider and their legal representatives or vicarious agents,
b) under the Product Liability Act, and
c) for damages resulting from injury to life, body, or health for which the Provider, their legal representatives, or vicarious agents are responsible.
The Provider is not liable for slight negligence unless they have breached a material contractual obligation whose fulfillment enables the proper performance of the contract in the first place or whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the Customer may regularly rely.
This liability is limited to typical and foreseeable damage in the case of property damage and financial loss. This also applies to lost profits and unrealized savings. Liability for other remote consequential damages is excluded.
For a single case of damage, liability is limited to the contract value; in the case of ongoing compensation, to the amount of compensation per contract year, but not less than EUR 50,000. Section 4.2 shall apply accordingly for limitation. The contracting parties may agree in writing at contract conclusion on more extensive liability, usually against separate compensation. An individually agreed liability amount takes priority. The liability pursuant to Section 6.1 remains unaffected by this paragraph.
Additionally and with priority, the Provider’s liability for slight negligence under the respective contract and its performance is limited in total to damages and expense reimbursement, regardless of the legal basis, to the percentage of the compensation agreed at contract conclusion as agreed in this contract. The liability pursuant to Section 6.1 b) remains unaffected by this paragraph.
From a guarantee declaration, the Provider is only liable for damages if this was expressly assumed in the guarantee. This liability is subject to the limitations under Section 6.2 in cases of slight negligence.
In the case of necessary restoration of data or components (e.g., hardware, software), the Provider is only liable for the effort that would have been required for restoration with proper data backup and contingency planning by the Customer. In the case of slight negligence on the part of the Provider, this liability only arises if the Customer carried out data backup and contingency planning appropriate to the nature of the data and components before the incident. This does not apply insofar as this is agreed as a service of the Provider.
Sections 6.1 to 6.4 shall apply accordingly to claims by the Customer for expense reimbursement and other liability claims against the Provider. Sections 3.3 and 3.4 remain unaffected.
The Customer shall conclude data protection agreements necessary under data protection law with the Provider for the handling of personal data.
The Customer shall independently comply with import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or service, the Customer shall bear any customs duties, fees, and other charges incurred. The Customer shall independently handle legal or administrative procedures in connection with cross-border deliveries or services, unless otherwise expressly agreed.
German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
The Provider renders its services based on its General Terms and Conditions. The Customer’s General Terms and Conditions do not apply, even if the Provider has not expressly objected to them.
Acceptance of the services by the Customer is deemed to be acknowledgment of the Provider’s General Terms and Conditions and waiver of the Customer’s General Terms and Conditions.
Other terms are only binding if the Provider has acknowledged them in writing; the Provider’s General Terms and Conditions shall then apply additionally.
Amendments and supplements to this contract should only be agreed in writing. Where written form is agreed (e.g., for terminations, withdrawal), text form is not sufficient.
The place of jurisdiction for a merchant, a legal entity under public law, or a special fund under public law is the Provider’s registered office. The Provider may also sue the Customer at the Customer’s registered office.
