Terms of service

Terms and Conditions of Service of ACM Consultants GmbH for Managed Services, Services, Commercial Business for IT System Houses

1. scope of application, order of precedence

These Terms and Conditions of Service (TOS) of ACM Consultants GmbH, Am Holzbach 10, 48231 Warendorf, Germany (hereinafter referred to as ‘Contractor’) apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural persons or legal entities that acquire services for commercial or professional use.

For the entire business relationship between the Contractor and the Customer, irrespective of the respective services, and also for information and advice, the following SB shall apply exclusively. Deviating terms and conditions of the Customer shall only apply if and insofar as the Contractor expressly recognises them in writing. In particular, silence on the part of the Contractor with regard to such deviating terms and conditions shall not be deemed to constitute recognition or consent, even in the case of future contracts. These SB shall also apply if the Contractor provides and executes the services to the Customer without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these SB.

The SB shall also apply in place of any terms and conditions of purchase of the customer if, according to these, the acceptance of the order or provision of the service is intended as unconditional acceptance of the terms and conditions of purchase or the contractor performs after the customer has indicated the validity of his terms and conditions of purchase, unless the validity of the SB has been expressly waived. The exclusion of the customer's General Terms and Conditions of Business shall also apply if the SB does not contain a separate provision on individual points of regulation. By accepting the SB, the customer expressly recognises that he waives his legal objection derived from the terms and conditions of purchase.

Upon conclusion of a contract with the customer, the following provisions shall apply in the following order of priority:

a) the offer with the service descriptions,
b) these SB,
c) the General Terms and Conditions of ACM,
d) the provisions of the BGB and HGB,
e) other statutory regulations.

Specific descriptions of general tasks limit the obligation to perform to the specific definition negotiated in each case. In the event of contradictions, the provisions mentioned first always take precedence over those mentioned last. Gaps shall be filled by the subordinate provisions. In the case of agreements in chronological order, the more recent shall take precedence over the older.

Individual agreements made in individual cases shall always take precedence over these SB. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or the written confirmation of the Contractor.

2. information, advice

Information and explanations regarding services by the Contractor or its sales agents are provided solely on the basis of previous experience. They do not represent any properties or guarantees with regard to services. The values stated here are to be regarded as average values of the services.

Unless expressly agreed otherwise, the Contractor does not guarantee that its services are suitable for the purpose pursued by the Customer.

The Contractor shall only expressly assume a consultancy obligation by virtue of a separate written consultancy agreement.

A guarantee shall only be deemed to have been assumed if the Contractor has designated a property and/or the success of a service as ‘legally guaranteed’ in writing.

3. conclusion of contract

Offers are non-binding unless they are expressly labelled as binding or expressly contain binding commitments or the binding nature of the offer has been expressly agreed otherwise. In the legal sense, they are invitations to place orders.

The Customer shall be bound to its order as a contract application for 14 calendar days after receipt of the order by the Contractor, unless the Customer must regularly expect a later acceptance by the Contractor (Section 147 BGB). This shall also apply to repeat orders placed by the Customer.

A contract is only concluded - even in ongoing business transactions - when the Contractor confirms the Customer's order in writing or in text form (i.e. also by fax or e-mail) by means of an order confirmation.

If the service is rendered within the customer's offer-related commitment period, the contractor's order confirmation can be replaced by the contractor's service and delivery, whereby the dispatch of a delivery is decisive.

The Customer shall notify the Contractor in writing of any special requirements for its services in good time prior to conclusion of the contract. However, such information shall not extend the contractual obligations and liability of the Contractor.

In the absence of any express agreements to the contrary, the Contractor is only obliged to provide the ordered services in the Federal Republic of Germany and to deliver products as goods that can be marketed and authorised in the Federal Republic of Germany. The Customer is obliged to obtain any necessary authorisations and export documents on its own responsibility due to any existing export restrictions before exporting products. The customer shall also obligate its customers (end customers) accordingly.

The assumption of a procurement risk or a procurement guarantee does not lie solely in the Contractor's obligation to deliver an item that is only of a certain type. The Contractor shall only assume a procurement risk within the meaning of Section 276 BGB by virtue of a separate written agreement using the wording ‘the Contractor assumes the procurement risk ...’.

If the acceptance of services or products or their dispatch is delayed for a reason for which the customer is responsible, the contractor is entitled, after setting and expiry of a 14-day grace period, to demand immediate payment of remuneration or to withdraw from the contract or to refuse fulfilment and demand compensation instead of the entire service. The deadline must be set in writing or in text form. The contractor does not have to refer again to the rights arising from this clause.

The Contractor is entitled to deliver services with customary deviations in quality, dimensions, weight or equipment. Such goods shall be deemed to be in conformity with the contract.

4. provision of services

The Contractor shall provide the contractually agreed services in accordance with the principles of proper professional practice.

Unless otherwise contractually agreed, the Customer shall bear responsibility for the success of the project.

Insofar as the services are provided at the customer's premises, the contractor is solely authorised to issue instructions to its employees. The Contractor's employees shall not be integrated into the Customer's operations. The Customer may only issue instructions to the Contractor's project coordinator within the framework of the contractual agreements, not directly to individual employees.

The Contractor shall decide which employees are deployed and reserves the right to replace them at any time. The Contractor may also use freelancers and other companies to provide the services. The customer has no claim to the provision of services by specific employees. The manner in which the service is provided shall be determined by the Contractor.

In the absence of any further contractual agreement, the place of performance shall be the registered office of the Contractor's company.

The Customer shall remain solely responsible for the utilisation of the data coming from the Customer's IT systems and for the results achieved with it.

The Customer may not allow third parties to utilise the services provided by the Contractor for commercial purposes unless this is expressly permitted by contract.

5 Delivery, delivery time and delay in delivery

Binding delivery dates and deadlines must be expressly agreed in writing or in text form. In the case of non-binding or approximate delivery dates (e.g. by means of information such as ‘circa’ or ‘approximately’) and deadlines, the Contractor shall endeavour to comply with these to the best of its ability.

Delivery and/or performance periods shall commence upon receipt of the order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other requirements to be fulfilled by the customer have been met, in particular agreed advance payments or securities and necessary cooperation services have been provided in full. The same applies to delivery dates and performance deadlines. If the Customer has requested changes after placing the order, a new reasonable delivery and/or performance period shall commence upon confirmation of the change by the Contractor.

If the Contractor is in default of performance or delivery, the Customer must first set the Contractor a reasonable grace period of at least - unless unreasonable - 14 days for performance. If this expires without result, claims for damages for breach of duty shall only exist in accordance with the provision in Clause 14 (Liability).

6. prices, terms of payment, defence of uncertainty

All prices are quoted ex Contractor's place of business and in principle in euros net, excluding sea or air transport packaging, freight, postage and, if transport insurance has been agreed, insurance costs, plus any statutory value added tax to be borne by the Customer in the amount prescribed by law, plus any country-specific taxes for deliveries to countries other than the Federal Republic of Germany and plus customs duties and other fees and public charges for the service.

Payment methods other than cash payment or bank transfer require a separate agreement between the Contractor and the Customer; this applies in particular to payment by cheque or bill of exchange.

If a bank transfer is agreed, the date of payment shall be the date on which the money is received by the Contractor or credited to the Contractor's account or to the account of the paying agent specified by the Contractor.

All invoices must be paid in full within 14 days of receipt. Unless expressly agreed separately, no discount shall be granted.

If services are provided by the Contractor outside the agreed service periods, hourly rates shall be subject to the following surcharges: 50 % on weekdays, 100 % on Sundays and public holidays.

Remuneration on a time and material basis shall be based on the Contractor's current price list. Billing on a time and material basis shall be based on the Contractor's usual activity reports. The customer may object to the stipulations made therein in text form within 2 weeks of receipt of the invoice. After expiry of these 2 weeks without objection by the customer, the activity reports shall be deemed to have been recognised.

Travelling time, travelling expenses and subsistence expenses shall be charged depending on the Contractor's employees' place of work. Travelling times and costs are incurred when travelling between the employee's place of work and the customer's respective location or various locations of the customer.

Travelling expenses, ancillary costs and material costs shall be remunerated in accordance with the Contractor's price list valid at the time of performance.

The Contractor shall be entitled to adjust the remuneration unilaterally at its reasonable discretion in the event of an increase in material production costs and/or material and/or product procurement costs, wage and ancillary wage costs, social security contributions and energy costs and costs due to environmental regulations and/or currency fluctuations and/or changes in customs duties and/or freight rates and/or public charges, if these directly or indirectly affect the procurement costs or costs of the contractually agreed services and if there are more than 4 weeks between conclusion of the contract and delivery. An increase in the aforementioned sense is excluded insofar as the cost increase for individual or all of the aforementioned factors is cancelled out by a cost reduction for other of the aforementioned factors in relation to the total cost burden.

If the new price is 10% or more higher than the original price due to the aforementioned price adjustment right, the customer is entitled to terminate contracts that have not yet been completely fulfilled. However, he may only assert this right immediately after notification of the increased price.

The customer shall only have a right of retention or right of set-off with regard to counterclaims that are not disputed or have been recognised by declaratory judgement. A right of retention can only be exercised by the customer insofar as his counterclaim is based on the same contractual relationship.

Incoming payments shall first be used to repay the costs, then the interest and finally the principal claim according to its age.

The customer must raise objections to the contractor's invoice in writing to the office stated on the invoice within six weeks of receipt of the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. The Contractor shall draw the Customer's attention to the significance of its behaviour when sending the invoice.

7. obligations of the customer to co-operate

The Customer is obliged to support the Contractor and to create all the conditions necessary for the proper provision of services in its sphere of operation free of charge for the Contractor. In particular, the Customer shall provide the Contractor with the necessary information and, if required, enable remote access to its IT infrastructure. If on-site services are required, the customer shall provide the necessary access to the premises. The Customer shall also ensure that expert personnel are available to support the Contractor.

If the Customer does not provide sufficient co-operation, this may lead to disruptions in the provision of services by the Contractor and shall entitle the Contractor to withhold its services until the Customer's obligations to co-operate have been fulfilled in full and without defects.

The Customer shall be responsible for proper data backup, unless corresponding services are expressly to be provided by the Contractor in accordance with the contractual agreements. Proper data backup includes all technical and/or organisational measures to ensure the availability, integrity and consistency of the IT systems, including the data, programs and procedures stored on these IT systems and used for processing purposes. Proper data backup means that the measures taken, depending on the data sensitivity and the data volumes, enable immediate and short-term restoration of the status of systems, data, programmes or procedures after a recognised impairment of availability, integrity or consistency due to a damaging event. However, the measures include at least the production and testing of the reconstruction capability of copies, programmes, data and procedures in defined cycles and generations.

The customer is solely responsible for the necessary archiving, in particular in accordance with tax and commercial law regulations.

Unless otherwise agreed, the customer undertakes to take appropriate technical and organisational measures to ensure that the intended use of hardware and software is guaranteed.

The Customer shall immediately notify the Contractor in text form of faults in a comprehensible and detailed form, stating all information useful for recognising and analysing the fault. In particular, the work steps that led to the occurrence of the fault, the mode of occurrence and the effect of the fault must be stated.

When describing, localising, identifying and reporting faults, the customer must follow the instructions issued by the contractor.

During necessary test runs, the customer shall be present in person or provide competent employees who are authorised to judge and decide on errors, functional extensions, functional abbreviations and changes to the program structure and database structures. If necessary, other work with the IT systems must be stopped during the time the Contractor is providing the service.

The customer shall appoint a responsible contact person. This contact person may make binding decisions for the customer or bring about such decisions immediately and is authorised to make legal declarations in connection with the provision of services by the contractor. The Customer shall ensure that the contact person appointed by it provides the Contractor with the documents, information and data necessary for the provision of the service completely, correctly, in good time and free of charge. In addition, the customer shall ensure that they are updated. The Contractor may assume that these documents, information and data are complete and correct, unless it recognises them as obviously incomplete and incorrect.

The Customer shall also store all documents, information and data provided to the Contractor in such a way that they can be reconstructed in the event of damage or loss.

The Customer undertakes to take appropriate technical and organisational measures to ensure that the software is used as intended and that unauthorised access to the software by third parties is prevented.

The Customer shall notify the Contractor of any changes to the employees and users that affect the provision of the service and are of significance for the provision of this service. The additional costs arising from the change shall be borne by the customer.

The Customer shall ensure that the use and storage of private data, for example private data of employees, on the systems operated by the Contractor does not result in legal risks for the Contractor. Insofar as claims are made against the Contractor due to the use or storage of private data, the Customer shall indemnify the Contractor against all claims upon first request. If the Contractor incurs damages due to non-compliance with the aforementioned, these shall also be reimbursed in full by the Customer.

The Customer is responsible for proper licence management. If software is provided by the Contractor, a licence may be issued to the Customer. The Contractor shall then be authorised to make corresponding declarations on behalf of the Customer.

If the Contractor has paid the remuneration for the software licensed to the Customer, the software shall be returned and/or transferred to the Contractor upon termination of the provision of services. To this end, the Customer shall make all necessary declarations and perform all necessary actions to enable the return and/or transfer and further use of the software by the Contractor.

If the Customer commissions third parties to make changes to the Contractor's services and has not agreed this with the Contractor, the Customer shall be solely responsible for downtimes, disruptions and damage and shall bear the additional expenses incurred by the Contractor.

The Customer shall use the Contractor's services in such a way that the data security and data flow in the Contractor's communication network are not adversely affected. If programs, scripts or similar installed by the Customer endanger the operation of the Contractor's communications network or the security and integrity of other IT systems, the Contractor may temporarily suspend the connection of the IT system to the Contractor's communications network and data centre in whole or in part with immediate effect, taking into account the legitimate interests of the Customer. In this case, a notification will be sent to the customer. A new connection can only be established once the aforementioned complications have been resolved. The Contractor shall not be liable for any damage caused by the connection being switched off for this reason.

The customer is responsible for the internet connection in order to access the contractor's services.

If the contractual relationship or parts of the relationship end, the Customer shall delete software agents and software provided to the Customer by the Contractor. The connection to the computer centre shall be terminated immediately by the Customer.

The customer shall not store any unlawful content that violates laws, official requirements or the rights of third parties on the storage space provided by the contractor. He shall ensure that the Internet address selected by him, under which the content can be accessed via the Internet, also does not violate laws, official requirements or the rights of third parties. The Customer shall also ensure that programmes, scripts or similar installed by it for the operation of the server or the Contractor's communication network do not endanger the security and integrity of other data stored on the Contractor's servers. The Customer shall indemnify the Contractor against any claims by third parties for which the Customer is responsible, including the costs incurred as a result of such claims.

In the event of an imminent or actual breach of the above obligations and in the event of the assertion of not obviously unfounded claims by third parties against the contractor for the omission of the complete or partial presentation of the content stored on the server via the Internet, the contractor is entitled to temporarily suspend the connection of this content to the Internet in whole or in part with immediate effect, also taking into account the legitimate interests of the customer. He shall inform the customer of this measure without delay. If programmes, scripts or similar installed by the Customer endanger or impair the operation of the Contractor's server or its communication network or the security and integrity of other data stored on its servers, the Contractor may deactivate and uninstall these programmes, scripts, etc. If the elimination of the threat or impairment requires this, the Contractor shall also be entitled to interrupt the connection of the content stored on the server to the Internet. The Contractor shall inform the Customer of this measure without delay.

The customer receives a user ID and a changeable password to access the storage space intended for the customer or services intended for the customer. The password must have a minimum length of eight characters and contain at least one letter, one number and one special character. The customer may only pass on the password to persons who have been authorised by the customer to access the storage space or services of the contractor. If the password is entered incorrectly three times, access to the storage space or the Contractor's services shall be blocked to prevent misuse. The customer will be informed of this. He will then be assigned a new password by the Contractor. In this case, the Contractor is authorised to reassign not only the password but also the user ID.

The content stored by the customer on the storage space intended for the customer may be protected by copyright and data protection laws. The Customer grants the Contractor the right to make the content stored by the Customer on the server accessible via the Internet upon request, in particular to reproduce and transmit it for this purpose and to be able to reproduce it for the purpose of data backup. The customer is responsible for checking whether the use of personal data by him fulfils the requirements of data protection law.

8. reservation of title

The retention of title agreed below serves to secure all existing current and future claims of the Contractor against the Customer arising from the delivery relationship between the contracting parties of a purchased item and any reproductions (‘reserved goods’). The goods delivered by the Contractor to the Customer shall remain the property of the Contractor until all secured claims have been paid in full.

The Customer shall store the reserved goods free of charge for the Contractor.

If the Contractor withdraws from the contract in the event of breach of contract by the Customer - in particular default in payment - (enforcement event), it shall be entitled to demand the return of the reserved goods. The customer is entitled to process and sell the reserved goods in the ordinary course of business until the realisation event occurs. Pledges and transfers by way of security are not permitted. If the reserved goods are processed by the customer, it is agreed that the processing is carried out in the name and for the account of the contractor as manufacturer and that the contractor directly acquires ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur for the Contractor, the Customer hereby transfers its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to the Contractor as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that the Contractor or the Customer acquires sole ownership, the party to whom the main item belongs shall transfer co-ownership of the uniform item to the other party on a pro rata basis.

In the event of resale of the goods subject to retention of title, the Customer hereby assigns to the Contractor by way of security the resulting claim against the purchaser - in the case of co-ownership of the goods subject to retention of title by the Contractor in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from unauthorised action in the event of loss or destruction. The Contractor revocably authorises the Customer to collect the claims assigned to the Contractor in its own name. The Contractor may only revoke this direct debit authorisation in the event of realisation.

If third parties seize the reserved goods, in particular by attachment, the Customer shall immediately inform them of the Contractor's ownership and inform the Contractor of this in order to enable the Contractor to enforce its ownership rights.

The Contractor shall release the goods subject to retention of title and the items or claims taking their place if their value exceeds the amount of the secured claims by more than 10%. The Contractor shall be entitled to select the items to be released.

9. term

Unless separate provisions have been agreed between the Customer and the Contractor, a contract for a continuing obligation shall be concluded for an indefinite period. After one year, an open-ended contract can be cancelled with one month's notice to the end of the month.

The right to extraordinary cancellation and free cancellation in accordance with § 648 BGB (German Civil Code) for services under a contract for work and services remains unaffected.

Cancellation notices are only effective in writing.

**10. installation

Hardware and software shall be installed and commissioned by the Customer, unless otherwise agreed. Support services provided by the Contractor shall be charged on a time and material basis. The remuneration shall be based on the Contractor's current price list.

Hardware and software shall be supplied including installation instructions. Operating instructions (user documentation or online help) shall only be supplied insofar as they are necessary for the intended use. The operating instructions and the installation instructions may be made available to the Customer electronically at the discretion of the Contractor, unless this is unreasonable for the Customer.

The exclusive object of the contract is the sale of the current version of a standard software at the time of the conclusion of the contract. Subsequent versions are not the subject matter of the contract.

11. managed services

The Contractor shall provide the services agreed in the service description.
If agreed, the Contractor shall provide the Customer with hardware and software from third-party providers/manufacturers. In this case, the contract for the provision of the hardware or software is generally concluded directly between the customer and the third-party provider/manufacturer. The contract/terms of use of the third party apply, which the customer recognises. The Contractor shall make the third party's terms and conditions of contract/use available to the Customer. The Customer is aware and the parties agree that, notwithstanding the preparation of the offer and invoicing, the Contractor merely mediates the conclusion of the contract between the third-party provider and the Customer for the hardware or software provided.

Unless expressly agreed otherwise in writing, the Contractor shall not grant the Customer any warranty or guarantee of its own for products from third-party providers. The legal regulations of the third-party provider shall apply. To the extent permitted by law, warranty and guarantee claims against the Contractor are therefore excluded.
The contracting parties agree that 100% security is not possible, particularly in the context of the managed services of backup, antivirus, firewall, web filtering and monitoring. The aim is therefore to carry out and enable the most error-free and functional provision of services possible, taking into account the necessary technical and organisational requirements, and to enable the most comprehensive protection possible. The Contractor shall be guided by the respective state of the art.
It should be noted that the installation of web filtering is not a protection against malware and does not replace a firewall or other IT security measures. Monitoring does not replace data backups, virus scanners or the regular care and maintenance of server hardware and its programmes. Corresponding security measures must be ordered separately as a managed service.

12. services under a contract for work and labour

Services under a contract for work and labour shall be governed by the statutory provisions. In the event of productive utilisation of contractual services by the customer, this shall be deemed acceptance. In such a case, written express acceptance is no longer required.

13. contractual rental services

The customer must treat the rental object (hardware or software) with care and protect it from damage. He shall ensure the proper use and proper operation of the rental object by sufficiently qualified personnel. The Customer shall follow the maintenance, care and operating instructions of the Contractor or the third-party manufacturer or supplier, in particular the instructions contained in the operating manual and documentation provided, to the extent reasonable. Markings on the rental object, in particular signs, numbers or inscriptions, may not be removed, altered or made unrecognisable.
The rental fee shall be specified in the offer. The prices stated in the offer are exclusive of statutory VAT.

The rent includes the remuneration for the provision of the rental object, for its maintenance and repair. The supply of consumables is not included in the rent and must be paid for separately in accordance with the Contractor's current price list.

If the rental object is extended by new hardware or software, an offer for the respective extension of the rental object shall be sent to the customer in advance.

Travelling expenses to the agreed location are not included in the rental price. On-site accommodation shall be at the customer's expense.

Any adaptations and/or modifications to the rental item made at the customer's request shall be remunerated separately, unless they are necessary for the maintenance or repair of the rental item or to ensure its contractual use.

After termination of the rental relationship, the software and/or hardware provided must be returned to the Contractor. Software must be returned on the original data carrier and the software and all other copies of the software must be completely and irretrievably deleted from the Customer's hardware. The complete return and deletion or destruction must be confirmed to the Contractor in writing by the Customer upon request.

14. cloud-based services (e.g. SaaS, IaaS, MCS)

If cloud-based services have been agreed, the customer must provide the necessary IT infrastructure and internet connection to access the services provided. The Contractor is entitled to commission third-party companies to fulfil the technical requirements for cloud-based services in a data centre. Further details of the Contractor's services are set out in the service description.

If agreed in the service description, the Contractor shall back up the Customer's software and/or application data at the agreed intervals and in the agreed manner. The Customer shall be responsible for compliance with retention periods under tax and commercial law.

If agreed, the Contractor shall provide the Customer with cloud-based services from third-party providers. In this case, the contract for the provision of the cloud-based services is usually concluded directly between the Customer and the third party and the cloud-based services are provided by the third party directly to the Customer. The contractual terms and conditions of the third party (e.g. Cloud Agreement, EULA, Online Service Terms and SLA) shall apply. The Customer is aware and the parties agree that, notwithstanding the preparation of the offer and invoicing, the Contractor merely mediates the conclusion of the contract between the third party provider and the Customer for the provision of the cloud-based services and these services are provided directly by the third party to the Customer.
Unless expressly agreed otherwise in writing, the Contractor shall not grant the Customer any warranty or guarantee of its own for products from third-party providers. The legal regulations of the third-party provider shall apply. To the extent permitted by law, warranty and guarantee claims against the Contractor are therefore excluded.
If agreed, the Contractor shall provide the service and support services set out in the service description in relation to the third-party cloud-based services provided. If necessary for the provision of services, the Customer shall provide the Contractor with access to the Customer's existing cloud account with the third party.

The Contractor is authorised to make changes to the cloud-based services at any time that do not significantly impair their functionality and that are necessary due to security or legal and regulatory requirements. The Contractor shall inform the Customer of this as soon as possible.

With regard to third-party software provided as part of cloud-based services, the Customer shall receive a simple (non-exclusive) right of use limited in time to the term of the contract in accordance with the licence conditions of the third-party provider, which shall be made available to the Customer on request.

If the customer has self-administration tools available to it within the scope of cloud-based services, the customer is solely responsible for its own use or the use of these tools by third parties commissioned by the customer.

15. liability for defects

Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect and give notice of defects (purchase) in accordance with § 377 HGB (German Commercial Code). Otherwise, the Customer must notify the Contractor of defects without delay, but at the latest within 14 days of their discovery.

Claims for defects shall become time-barred twelve months after delivery of the products supplied by the Contractor to the Customer, after performance of the service or after acceptance. Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.

The above limitation periods shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from wilful or grossly negligent breaches of duty by the Contractor or its vicarious agents, which shall in each case become time-barred in accordance with the statutory provisions.

The Contractor's consent must be obtained before any goods are returned.

If, despite the care taken, the Contractor's services exhibit a defect that already existed at the time of the transfer of risk, the Contractor shall, subject to timely notification of defects, either repair the services or provide replacement services at its discretion. He shall be given the opportunity for subsequent fulfilment within a reasonable period of time. Recourse claims shall remain unaffected by the above provision without restriction.

If the subsequent fulfilment fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration in accordance with the statutory requirements.

Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, or in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable equipment or due to special external influences which are not provided for in the contract. If the customer or third parties carry out improper repair work or modifications to the services, there shall also be no claims for defects for these and the resulting consequences.

Claims by the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, labour and material costs, are excluded insofar as the expenses increase because the services provided by the Contractor have subsequently been moved to a location other than the place of performance, unless the relocation corresponds to their intended use.

The Customer shall only have a right of recourse against the Contractor to the extent that the Customer has not made any agreements with its customer that go beyond the statutory mandatory claims for defects. In particular, the preceding sentence shall apply accordingly to the handling of the Customer's right of recourse against the Supplier.

In the event of defects in software and hardware from third-party manufacturers, the terms and conditions of the respective manufacturer or third party shall apply. SB does not and does not intend to change the conditions of third parties. If the customer becomes a direct contractual partner of the third-party manufacturer or supplier, he must assert his warranty claims directly against them.

If the Customer is not a direct contractual partner of the hardware or software of the third-party manufacturer or supplier provided by the Contractor, the Contractor shall, at its discretion, assert its warranty claims against the third-party manufacturer or supplier on behalf of the Customer or assign them to the Customer. In such cases, the Customer shall only be entitled to assert warranty claims against the Contractor in accordance with these SB if the enforcement of justified warranty claims against the manufacturer or supplier was unsuccessful or is obviously futile, e.g. due to the insolvency of the manufacturer or supplier.

16. force majeure

If, for reasons for which the Contractor is not responsible, the Contractor does not receive, does not receive on time or does not receive correctly the quantity and quality of the contractual services owed by its subcontractors, despite proper and sufficient coverage prior to the conclusion of the contract with the Customer, or if events of force majeure of not insignificant duration (i.e. with a duration of more than 14 calendar days) occur, the Contractor shall inform its Customer in good time in writing or in text form. In this case, the Contractor shall be entitled to postpone the provision of services for the duration of the hindrance or to withdraw from the contract in whole or in part due to the part of the contract not yet fulfilled, insofar as it has fulfilled its above obligation to provide information and has not assumed the procurement risk or a delivery guarantee. Force majeure shall include war, strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks or transport obstacles through no fault of the Contractor, operational hindrances through no fault of the Contractor, for example due to cyber attacks, fire, water and machine damage and all other hindrances which, from an objective point of view, have not been culpably caused by the Contractor.

If a binding performance date has been agreed and the agreed performance date is exceeded due to events in accordance with paragraph 1, the customer shall be entitled to withdraw from the contract due to the unfulfilled part of the contract after a reasonable grace period has expired without result. Further claims of the customer, in particular claims for damages, are excluded in this case.

The above provisions shall apply accordingly if, for the reasons stated in paragraph 1, it is objectively unreasonable for the customer to continue to adhere to the contract even without a contractual agreement on a fixed performance date.

17 Exclusion and limitation of liability

Subject to any provisions to the contrary in these SB and the associated documents, liability shall be as follows.

Subject to the following exceptions, the Contractor shall not be liable, in particular not for claims of the Customer for damages or reimbursement of expenses - irrespective of the legal grounds - in the event of breaches of obligations arising from the contractual relationship.

The exclusion of liability according to paragraph 2 does not apply:

• for own intentional or grossly negligent breaches of duty and intentional or grossly negligent breaches of duty by legal representatives or vicarious agents;
• for the breach of material contractual obligations; ‘material contractual obligations’ are those obligations which protect the customer's legal positions which are material to the contract and which the contract must grant him according to its content and purpose; material contractual obligations are also those whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely;
• in the event of injury to life, limb and health, including by legal representatives or vicarious agents;
• in the event of delay, insofar as a fixed time of performance was agreed;
• to the extent that the contractor has assumed a guarantee for the quality or the existence of a performance success or a procurement risk within the meaning of § 276 BGB;
• in the event of liability under the Product Liability Act or other mandatory statutory liability.

In the event that the Contractor or its vicarious agents are only guilty of slight negligence and there is no case of the above paragraph 3, 3, 4, 5, 6 indent, the Contractor shall only be liable for the foreseeable damage typical of the contract, even in the event of a breach of essential contractual obligations.

The Contractor's strict liability for damages (Section 536a BGB) for defects existing at the time of conclusion of the contract (rent) is excluded.

Insofar as corresponding services (e.g. backup service) are not expressly to be provided by the Contractor in accordance with the contractual agreements, liability for data loss shall be limited to the typical recovery costs that would have been incurred if the Customer had made regular and risk-appropriate backup copies/backups.

The exclusions and limitations of liability pursuant to paragraphs 1 to 7 and the following paragraph 6 shall apply to the same extent in favour of the Contractor's executive bodies, its executive and non-executive employees and other vicarious agents as well as its subcontractors.

Insofar as the Contractor provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Contractor, this shall be provided free of charge and to the exclusion of any liability.

18. rights of use

Upon full payment of the remuneration owed, the Contractor shall grant the Customer the right to use the contractually agreed service to the extent specified in the contract. The Customer shall be granted a simple, non-exclusive, non-transferable right of use for a limited (e.g. rental) or unlimited (e.g. purchase) period of time, depending on the individual contractual provisions in the contractual offer / service certificate, which shall extend to the respective contractual purpose and the number of licences acquired by the Customer. The right of use only covers use for the customer's internal purposes. Leasing or distribution of the service is not permitted unless this is expressly authorised in the contract.

The Contractor is authorised to take appropriate technical measures to protect against non-contractual use.

Insofar as individual rights of use and utilisation have previously been granted, these are always only provisional and freely revocable by the Contractor.

The Contractor may revoke the Customer's right of use if the Customer violates restrictions on use or other regulations to protect against unauthorised use to a not insignificant extent. The Contractor must first set the Customer a reasonable grace period to remedy the situation. In the event of recurrence and in special circumstances that justify immediate revocation after weighing up the interests of both parties, the Contractor may declare revocation without setting a deadline. The customer must confirm the cessation of use in text form after the cancellation.

If software from third parties is used, the licence conditions of the respective software manufacturer or third party shall apply. SB does not change the licence conditions of third parties and does not intend to do so.

The licence conditions of third parties and the respective service descriptions of the software manufacturers or third parties apply exclusively to the service and the software of third parties, in this case taking precedence over the SB. The customer shall receive the third-party software or third-party services in accordance with the respective manufacturer's published service description for the software.

For the use of software, the system requirements published by the contractor or the software manufacturer must be met by the customer. Otherwise, error-free use of the software is not possible. This applies regardless of whether explicit reference is made to the licence conditions and information on the system requirements or whether these are attached to the contract documents.

19. data protection, protection of trade secrets

The Customer undertakes to comply with the statutory regulations on data protection and to protect the Contractor's trade and business secrets from unauthorised access sufficiently and to the extent necessary.

In particular, the Customer undertakes to keep all confidential information of which it becomes aware in connection with the provision of services by the Contractor permanently secret, not to pass it on to unauthorised third parties, record it or exploit it in any other way, unless the Contractor has expressly consented to the disclosure or use in writing or the information must be disclosed by law, court order or administrative decision. In the absence of such consent or disclosure, the information disclosed shall only be used for the performance of this contract.

The following are not confidential information:

• Information that was previously known to the customer without a confidentiality obligation.
• Information that is generally known.
• Information that was disclosed to the customer by a third party without the customer having breached a confidentiality obligation.
• Information that must be disclosed due to legal obligations or by order of a court or authority. As far as permissible and possible, the customer shall inform the contractor in advance and give him the opportunity to take action against the disclosure.

The above obligations shall also apply to the period after termination of the contractual relationship.

The contractual partner is aware that electronic and unencrypted communication, e.g. by e-mail, is fraught with security risks. In the case of this type of communication, neither contracting party shall therefore assert any claims based on the lack of encryption. This does not apply to cases in which encryption has been expressly agreed between the contracting parties in advance.

20 Subcontractors

The Contractor is authorised to commission third parties as subcontractors for all service obligations and/or to involve them in the provision of services. The Contractor shall ensure that the Customer does not suffer any significant disadvantages as a result. Furthermore, the Contractor shall be entitled to have all obligations fulfilled by third parties on its behalf.

21. remote maintenance

The Contractor shall carry out remote maintenance exclusively within the framework of the agreements made in accordance with the Customer's instructions. Data that becomes known to the Contractor in the course of the fulfilment of this contract shall only be used for the purposes of remote maintenance. As far as possible, remote maintenance shall be carried out on screen without simultaneous storage.

As far as technically possible, the Contractor shall use a secure identification procedure. The start of remote maintenance shall always be announced by telephone in order to give the customer the opportunity to follow the remote maintenance measures.

The customer has the right to interrupt the remote maintenance, in particular if it gains the impression that data is being accessed without authorisation. In this case, the customer must inform the contractor immediately and comprehensively. Additional expenses and damages incurred due to the customer's interruption of remote maintenance shall be borne by the customer.

If interruptions to programme sequences are necessary for the purpose of remote maintenance, the Contractor shall inform the Customer in advance, insofar as this is technically possible.

22. order processing

The contracting parties shall conclude a separate contract for order processing if one contracting party processes personal data on behalf of the other party as the controller.

23 Miscellaneous

All agreements, collateral agreements, assurances and amendments to the contract must be made in writing.

German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

In the event of differences of opinion and disputes arising in connection with the contract, both parties shall endeavour to find an amicable solution.

The exclusive place of jurisdiction for all legal disputes arising from this contract and in connection with this contract and the provision of services shall be the Contractor's place of business in the case of contracts with merchants.

Should any provision of this contract be or become invalid/void or unenforceable in whole or in part, the statutory provisions shall apply.

Status: June 2022