TERMS & CONDITIONS
1. AGREEMENT TO TERMS
2. INTELLECTUAL PROPERTY RIGHTS
3. USER REPRESENTATIONS
4. PROHIBITED ACTIVITIES
The risk of loss or theft of or damage to objects, products, software or data which are the subject of the Agreement shall pass to the Customer at the time they have been placed at the actual disposal of the Customer or an assistant used by the Customer.
6. Cooperation by the Customer; telecommunications
The Customer shall always furnish the Supplier in a timely manner with all data or information which is useful and necessary to execute the Agreement properly and provide full cooperation, including furnishing access to its buildings. If the Customer utilises its own employees in cooperating in the execution of the Agreement, these employees shall possess the necessary know how, experience, abilities and characteristics. 7.2 The Customer shall bear the risk of selecting, using and applying in its organisation the equipment, software, websites, databases and other products and materials and the services to be provided by the Supplier, and shall also be responsible for the monitoring and security procedures and proper system management. 7.3 If the Customer furnishes software, websites, materials, databases or data to the Supplier on a data carrier, this carrier shall meet the specifications prescribed by the Supplier. 7.4 If the Customer does not provide the Supplier with the data, equipment, software or employees necessary to execute the Agreement, or does not provide this in a timely manner or in accordance with the agreements made, or if the Customer otherwise does not fulfil its obligations, the Supplier shall be entitled to suspend execution of the Agreement in whole or in part, and it shall be entitled to charge the ensuing expenses in accordance with its usual rates, all of this without prejudice to the Supplier's right to exercise any other legal right. 7.5 In the event that employees of the Supplier perform work on-site at the Customer's, the Customer shall provide the facilities reasonably desired by those employees free of charge, such as a working space with computer and telecommunications facilities. The working space and facilities shall comply with all applicable statutory and other requirements and provisions concerning working conditions. The Customer shall indemnify the Supplier against claims by third parties, including the Supplier's employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by the Customer or of unsafe situations in its organisation. The Customer shall provide timely notice to the Supplier's employees to be utilised of the company and security rules applicable within its organisation. 7.6 If, in executing the Agreement, telecommunications facilities, including the Internet, are used, the Customer shall be responsible for properly selecting these and making them available in a timely and sufficient manner, except for those faculties directly used and managed by the Supplier. The Supplier shall never be liable for damage or expenses due to transmission errors, malfunctions or the nonavailability of these facilities, unless the Customer proves that this damage or these expenses resulted from intentional acts or omissions or gross negligence on the part of the Supplier or its managers. If telecommunications facilities are used in executing the Agreement, the Supplier shall be entitled to assign access or identification codes to the Customer. The Supplier may change the assigned access or identification codes. The Customer shall treat the access codes as confidential and with due care and shall only disclose them to authorised employees. The Supplier shall never be liable for damage or expenses resulting from misuse of access or identification codes.
7. Security, privacy and retention periods
The Supplier shall comply with the statutory obligations which it has as a processor concerning its processing personal data. The Supplier shall provide appropriate technical and organisational measures to protect personal and other data against loss or against any form of unlawful processing. The Customer warrants that all statutory provisions concerning processing personal data, including provisions in or under the Personal Data Protection Act, have been strictly observed and that all prescribed registrations have been carried out and all required consents to process personal data have been obtained. The Customer shall provide the Supplier immediately in writing with all requested information in this respect. The Customer shall indemnify the Supplier against all third-party claims which may be filed against the Supplier because of a violation of the Personal Data Protection Act and/or other laws concerning processing personal data which is not imputable to the Supplier. The Customer shall indemnify the Supplier against all claims of third parties, including government bodies, which may be filed against the Supplier because of a violation of the laws concerning the statutory retention periods.
8. Development of software
If specifications for or a design of the software to be developed were not already given to the Supplier when the Agreement was concluded, the Parties shall in consultation specify in writing which software shall be developed and in which manner this shall occur. The Supplier shall develop the software with due care based on data to be provided by the Customer, the correctness, completeness and consistency of which the Customer shall warrant. If the Parties have agreed to use a development method which is characterised by the design and/or development of software parts being subject to a further setting of priorities to be determined during execution of the Agreement, this setting of priorities shall always occur in consultation between the Parties. The Supplier shall be entitled, but not required, to examine the correctness, completeness or consistency of the data, specifications or designs given to it and, if any imperfections are discovered, to suspend the agreed work until the Customer has eliminated the imperfections concerned. Subject to the provisions in Article 6, the Customer shall only acquire the right to use the software in its own company or organisation. The software's source code and the technical documentation created in developing the software may only be made available to the Customer if and insofar as expressly agreed in writing, in which case the Customer shall be entitled to make changes to this software. If the Supplier is obliged at law to make the source code and/or technical documentation to the Customer, the Supplier may demand a reasonable fee.
The substance and scope of the maintenance services to be provided by the Supplier and any related service levels shall be recorded between the Parties in a written agreement. In the absence of such an agreement, the Supplier undertakes to do its utmost to remedy, to the best of its ability and within a reasonable time period, malfunctions which have been properly reported to the Supplier by the Customer. In this Chapter, "malfunction" shall mean not meeting the equipment's specifications expressly made known by the Supplier in writing, or not meeting these specifications without interruption. A malfunction shall only exist if the Customer can demonstrate it and it can be reproduced. The maintenance shall be performed during the Supplier's normal working days and working hours. The Supplier reserves the right to suspend its maintenance obligations during the time that, in the Supplier's judgment, there are circumstances at the site where the equipment is to be set up which entail risks to the safety or health of the Supplier's employees. The Supplier shall ensure that its expertise concerning the equipment is kept up-to-date. The Supplier shall register and record in its administration all relevant data concerning the work performed on the equipment. Upon request, the Supplier shall allow the Customer to examine the data recorded. Parts shall be replaced if this is necessary in the Supplier's judgment to fix or prevent malfunctions. The parts replaced shall be or remain the Supplier's property.
10. The equipment of the Supplier's supplier
If and insofar as the Supplier provides equipment from third parties to the Customer, those third parties' terms and conditions shall replace the deviating provisions in these Terms and Conditions and shall apply with regard to that equipment, provided that the Supplier notifies the Customer in writing. The Customer shall accept the aforementioned third-party terms and conditions. These terms and conditions shall be available for the Customer's inspection at the Supplier's and the Supplier shall send these terms and conditions free of charge to the Customer at its request. If and insofar as the aforementioned third-party terms and conditions are deemed or declared inapplicable to the relationship between the Customer and the Supplier for whatever reason, the provisions in these General Terms and Conditions shall fully apply.
Work to examine or repair malfunctions which arise from improper use of the equipment or external causes, such as defects in communication lines or in the power supply, or connections with and/or use of equipment, software or materials not covered by the Agreement, shall not be part of the Supplier's obligations under the Agreement, and shall be charged to the Customer separately at the usual rates. The maintenance price shall not include: • replacing consumer goods, such as, for example, magnetic storage media and printer ribbons; • replacement costs for parts as well as maintenance services for remedying malfunctions which are caused in whole or in part by attempts to repair made by others besides the Supplier; • work to service the equipment in whole or in part; • equipment modifications; • moving, relocating or reinstalling equipment or work resulting from this.
12. Environment requirements and installation
The Customer shall ensure an environment which meets the requirements specified by the Supplier for the equipment in a particular case (for example, concerning temperature, humidity, technical environment requirements and the like). If the Parties have expressly agreed on this in writing, the Supplier shall install the equipment or have it installed. Any requirement by the Supplier to install equipment shall not include the requirement to install software or to convert data. If the Supplier has undertaken to perform installation, the Customer shall provide a suitable installation site with all necessary facilities, such as cable work and telecommunications facilities, before delivery of the equipment and follow all instructions of the Supplier necessary for the installation. To enable the Supplier to perform the necessary work, the Customer shall give the Supplier access to the installation site during the Supplier's normal working days and hours.
The Supplier shall, to the best of its ability, do its utmost to perform the services with due care and, where appropriate, in accordance with the agreements and procedures recorded in writing with the Customer. All of the Supplier's services shall be performed on the basis of a best efforts obligation, unless and insofar as the Supplier has expressly promised a result in the written Agreement and the result concerned has also been described with sufficient definiteness. Any agreements concerning a service level must always be expressly agreed in writing. If it has been agreed that the services shall be provided in stages, the Supplier shall be entitled to postpone the start of the services which are part of a stage until the Customer has approved the results of the preceding stage in writing. In performing the services, the Supplier shall only be obliged to follow timely and sensible instructions of the Customer if this has been expressly agreed in writing. The Supplier shall not be required to follow instructions which change or supplement the substance or scope of the agreed services; if such instructions are followed, however, the work in question shall be compensated pursuant to Article 18. If a services agreement has been entered into with a view to performance by a particular person, the Supplier shall always be entitled to replace this person after consultation with the Customer with one or more other persons with the same qualifications. In the absence of an expressly agreed invoicing schedule, all amounts relating to services provided by the Supplier shall be owed once every calendar month in arrear.