Last update: 07/12/2023
0.1 The offers, services, sales and deliveries of VIER GmbH (hereinafter referred to as the Provider) shall be governed exclusively by these Terms and Conditions. Any terms and conditions contrary to or deviating from these Terms and Conditions shall only apply if confirmed in writing by the Provider as an addendum to these Terms and Conditions.
0.2 These Terms and Conditions shall also apply if the Provider is aware of terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions and the delivery and/or service is carried out without reservation. References or counter-confirmations by the Customer with reference to its terms and conditions of purchase are hereby expressly contradicted.
0.3 These Terms and Conditions shall also apply to all future business with the Customer.
The following definitions apply to this Contract and all agreements made under this Contract:
"Current state of the art"
includes all technical knowledge gained up to the respective specific point in time, which has found its way into operational practice and which is generally recognised.
is a person appointed by the Customer or Provider for a specific area of activity who is authorised to represent that area of activity.
"Applicable Legal Framework"
consists of all laws and ordinances as well as official regulations, notices and guidelines with which the Contractual Services must comply, including all regulatory requirements.
are all services produced by the Provider, insofar as they can be the subject of separate rights, such as documentation, reports, charts, studies, schemes or plans.
of the Customer are the assumptions and calculation bases on which the Customer has based the outsourcing of the Contractual Services in each case. These are specified in the Individual Order/ Service Order.
are all natural and legal persons as well as all other organisations that are not the Contracting Parties.
are all licences, consents, permits, approvals and authorisations required for supply of the Contractual Services.
are non-typical losses that were not foreseeable at the time the respective legal protection affected by the loss event (e.g. loss of profit) was concluded.
includes all industrial property rights and other proprietary rights of any kind, such as patent rights, trade mark rights, utility model rights and design rights, copyright as well as rights of use and exploitation, whether registered or not, including the right to apply for registration of such rights, and know-how, whether currently existing or acquired at a later date.
is an event which could not have been foreseen by either of the Contracting Parties by exercising the utmost care reasonably to be expected and which, as far as the provision of the Contractual Services is concerned, could have been avoided in particular by emergency plans and emergency measures of the Provider. Force Majeure in this sense may include the following events, in particular: War, insurrection, civil unrest, embargoes, explosions, fire, floods, storms, lawful industrial action within enterprises.
are the networks, communication systems, hardware, software, interfaces and other technical IT equipment used by the Provider for the provision of the Contractual Services and used by the Customer for utilisation of the same.
"Place of Performance"
is the place where the Provider has to perform the service actions that characterise the service commitments, such as operating the server, the location of the help desk, etc.
"Defective Service Provision"
A Defective Service Provision exists if
(a) the Contractual Services do not meet the contractually stipulated requirements and specifications either in whole or in part, in particular if the Provider fails to comply with the respective Service Levels, or
(b) the Contractual Services are not suitable for the contractually stipulated use or
(c) the Contractual Services are not of the quality that is customary for services of a similar kind and which the Customer can expect in view of the nature of the services that form the subject of this Contract.
"Multi-Client Capability/Client Capable"
means that provision of the Contractual Services to the Customer can take place independently of the provision of services to a Third Party and that the Customer is the highest authority in the IT Systems used by the Provider for the provision of services and represents a data-related and organisationally self-contained unit in these IT Systems. In detail, Multi-Client Capability means
the possibility of disjunctive, customer-orientated data management; i.e. that in particular
(a) access by Third Parties to the data of the Customer is physically impossible and that separation as well as mutual isolation of the data stored and processed for the respective customers of the Provider is ensured and
(b) the confidentiality of the Customer's data is always ensured and no Third Parties obtain knowledge of the Customer's data; and
(c) the incoming, processed and stored data of the Customer is protected against manipulation by Third Parties,
the possibility of exercising inspection/audit rights is granted to the Customer without infringing the rights of Third Parties
consists of information regarding personal or factual circumstances of an identified or identifiable natural person within the meaning of the General Data Protection Regulation (GDPR).
"Service Levels (Agreements)"
are the service requirements specified in a Individual Order/Service Order, which define the nature and scope of the Contractual Services in terms of location, time, quality and quantity.
"Service Level Credit"
means a service credit mechanism whereby the Provider receives credit through an internal credit note in favour of the Customer if the service request does not meet the contractually agreed Service Level.
is anyone who, in accordance with the intention of the Provider, acts as its assistant in the performance of an obligation incumbent upon it under this Contract without being in an employment relationship with it.
are services that the Provider provides to at least two customers.
are services that consist entirely or mainly in the transmission of signals over telecommunications networks.
is data that is collected, processed or used in the provision of a Telecommunications Service.
"Start of the Contract"
is the point in time at which the Provider first renders a service to the Customer under a Individual Order/Service Order in accordance with this Contract.
are the services to be provided by the Provider in accordance with the Contractual Documents, including such services, tasks and responsibilities which are not expressly specified but which are necessary for the proper performance and provision of the Contractual Services.
consist of the Individual Order/Service Order, including the Appendices and the Schedules to the Appendices as well as all agreements made under this Contract.
are the Provider and the Customer.
consists of all information and documents, including Contractual Documents, which are either marked as confidential or whose confidentiality results from the circumstances or from their nature. Confidential Information includes, but is not limited to, technical, business and other information, such as information relating to technology, research and development, products, services, prices of products and services, customers, employees, Subcontractors, marketing plans, financial matters. Information shall not be deemed to be confidential if:
it was known to the receiving Contracting Party before they received it from the other Contracting Party under this Contract; or
the receiving Contracting Party has independently developed it without recourse to Confidential Information of the other Contracting Party, or
the receiving Contracting Party has obtained it from a Third Party that is not bound by restrictions on the use and disclosure of that information; or
it is or became generally known through no fault or action of the receiving Contracting Party, or
one Contracting Party has exempted it from confidentiality by written declaration to the receiving Contracting Party.
This Contract shall apply to all services provided to the Customer by the Provider during the term of this Contract.
2.2.1 The services to be provided by the Contracting Parties in individual cases shall be agreed by the Contracting Parties in individual agreements, in particular Service Orders. If an Individual Order/Service Order is concluded, these Terms & Conditions shall become an integral component of this Contract – unless expressly stipulated otherwise in writing in individual cases.
2.2.2 The provisions of the Service Orders shall be supplemented by the product-related specifications of services and any product-related price lists, unless otherwise agreed in individual cases. The general terms and conditions of the Customer shall not apply.
In the event of ambiguities or contradictions between the individual Contractual Documents, the following order of precedence shall apply:
2.3.1 With regard to determining the subject of the services, the prices and the co-operation obligations of the Customer:
Supplementary Agreements to the respective Individual Order/Service Order and its Appendices;
the Appendices of the respective Individual Order/Service Order;
the main document of the respective Individual Order/Service Order;
the offer of the Provider preceding the conclusion of an Individual Order/Service Order in each case.
2.3.2 With respect to the legal framework set out in this Contract and its Appendices and the Schedules to the Appendices:
the provisions of this Contract;
the Appendices of the respective Individual Order/Service Order;
the main document of the respective Individual Order/Service Order;
the statutory provisions.
2.3.3 If the order of precedence is not clear from Clause 2.3.1. or 2.3.2., a document of more recent date shall take precedence over a document of older date and a specific provision shall take precedence over a general provision.
3.1.1 The services to be provided by the Provider can be found in detail in the Individual Orders/ Service Orders.
3.1.2 Use of the services of the Provider may require the use of customer-owned terminal equipment/end devices (e.g., telephones, PCs, routers, computer programs). These devices and terminal equipment only form part of the scope of services of the Provider if they are part of the product-specific service description or if expressly agreed. The Provider shall not be responsible for service restrictions or failures caused by the use of the Customer's own terminal equipment and end devices.
3.1.3 When using telecommunication networks of other providers, the service obligation of the Provider is in principle limited to providing the Customer with access to this network. The same applies to access to offers from other providers. Such services offered by Third Parties are not part of the scope of services of the Provider even if they are used on the basis of the services of the Provider. The same applies to content offered by Third Parties and which can be accessed via services provided by the Provider.
Unless otherwise or specifically agreed in an Individual Order/Service Order, the Provider shall provide the Contractual Services in each case in accordance with the Current State of the Art.
The Provider shall configure and operate the IT Systems used for the provision of the Contractual Services in such a way that they are Multi-Client Capable.
3.4.1 The Provider is in principle free to move or change the Place of Performance within the European Union or the European Economic Area.
3.4.2 Any relocation of a Place of Performance, individual Contractual Services or individual parts of services outside the European Union or the European Economic Area requires the prior written consent of the Customer. The Customer shall only refuse consent to such relocation to a country that is not a member state of the European Union or the European Economic Area if there is a good reason to do so. In the event of relocation to a country that is not a member state of the European Union or the European Economic Area, consent shall be at the reasonable discretion of the Customer, provided that the requirements for commissioned data processing pursuant to Article 28 of the GDPR are met at the same time. Otherwise, sentence 2 shall apply.
3.5.1 Dates and deadlines for the commencement of services are only binding insofar as these have been expressly agreed between the Contracting Parties or have been expressly confirmed in writing by the Provider.
3.5.2 In the event of untimely or incomplete fulfilment of the Customer's cooperation obligations or in cases of Force Majeure, the dates and deadlines shall be postponed by a reasonable period of time.
3.5.3 If, in the course of the installation work to be carried out by the Provider in accordance with this Contract, hardware or software upgrades become necessary at the Customer's premises which were not foreseeable for the Provider at the time this Contract was concluded, service provision time shall also depend on deliveries made by corresponding upstream suppliers. Any delays resulting therefrom shall not be to the detriment of the Provider.
3.5.4 Unless otherwise agreed, the following shall apply: Saturday, Sunday and all German federal and state public holidays are not considered working days. Regular working hours at the Provider are between 07:30 and 18:00 on working days.
3.6.1 The Provider is entitled to adjust the agreed charges in the event that changes occur:
to the rate of statutory sales tax;
to the costs of other services of the Provider, to which the Provider grants the Customer access under this Contract;
to costs for special network access and for interconnections;
to the fees/costs incurred due to administrative or court decisions, such as those of the German Federal Network Agency;
by sending a unilateral declaration to the Customer from the point in time of the change stating the amount of the change for the future.
3.6.2 The Provider shall be entitled at any time to amend the contractual agreements by unilateral declaration, provided such amendments are exclusively to the benefit of the Customer.
3.6.3 The Provider shall be entitled to change the agreed services if necessary for a valid reason and that reason was not foreseeable at the time this Contract was concluded and if the change is reasonable for the Customer and if the relationship between performance of the Contractual Service and consideration is not significantly shifted to the Customer's disadvantage. A valid reason exists if new technical developments make a change in services necessary, because the service can no longer be provided in the form previously contractually agreed, if newly enacted or amended statutory or other sovereign requirements necessitate a change to the services or if a pre-supplier discontinues its regulated wholesale products or replaces them with other comparable wholesale products. The change is reasonable if it does not result in any significant restrictions to the services used by the Customer or if an alternative service with a substantially comparable benefit is available. The Customer may terminate the contractual relationship within four weeks of receipt of the change notice as of the time at which the change takes effect. In the change notice, the Provider shall inform the Customer of its termination right.
4.1 The Customer shall check the service immediately after it has been supplied and, if it is defective or a fault in the service becomes apparent, shall notify the Provider immediately, at the very least in text form. Section 377 of the German Commercial Code (HGB) shall apply accordingly.
4.2 In the event of Defective Service Provisions, the following procedure shall apply, unless provided for otherwise in the Individual Orders/Service Orders
The other Contracting Party is to be informed of the Defective Service Provision;
Analysis and investigation of the cause of the Defective Service Provision;
Elimination of the Defective Service Provision;
Subsequent performance of the Contractual Service affected by the Defective Service Provision, insofar as this is possible and reasonable;
Claim for damages and termination for good cause.
4.3 Each Defective Service Provision is assigned to one of the following categories:
"Critical Defective Service Provision":
a Defective Service Provision which wholly or partly precludes the use of the Contractual Services or which substantially restricts the Customer's business operations;
"Substantial Defective Service Provision":
a Defective Service Provision which does not exclude the use of the Contractual Services or does not significantly restrict the Customer's business operations, but which results in an impairment of the use of the Contractual Services or a restriction of the Customer's business operations, whereby the effects on the Customer's affected business operations can be reduced to a reasonable level by means of reasonable workarounds. The simultaneous occurrence of multiple Significant Defective Service Provisions can lead to one Critical Defective Service Provision.
"Insubstantial Defective Service Provision":
a Defective Service Provision which only slightly impairs the use of the Contractual Service or the business operations of the Customer.
4.4 For the investigation and/or rectification of a Defective Service Provision that does not actually exist or a Defective Service Provision brought about due to circumstances for which the Customer is responsible, the Provider may charge compensation for expenses, based on its General Price List valid at the time.
4.5 If it is not possible or not reasonable to make up for the Contractual Service affected by the Defective Service Provision, the Customer shall be entitled to reduce the fee to a reasonable degree. This shall not apply insofar as the Defective Service Provision in performance consists in the non-achievement of a specification for which a Service Level Credit has been agreed.
5.1 Unless otherwise agreed and unless it is a case of commissioned data processing within the meaning of Article 28 GDPR, the Provider is entitled to transfer the Contractual Services, in whole or in part, to Subcontractors without the prior written consent of the Customer.
5.2 In the event of commissioned data processing, the Contracting Parties shall regulate this in detail in a separate Commissioned Data Processing Agreement.
6.1 The Customer shall provide the Provider with all information required for operation and installation of the Contractual Services in a complete, timely and truthful manner.
6.2 In order to arrange the work required before, during and after expiry of the contractually agreed service period with the Provider the Customer shall name a responsible, authorised Contact Person as regards planning, provision, service provision and uninstallation.
6.3 The Customer shall notify the Provider immediately of any change relevant to this Contract, in particular to name or company name, legal form, address and billing address, bank details, Contact Person appointed by the Customer as well as fundamental changes in legal or financial circumstances (e.g. transformations, assignment of rights under this Contract, application to commence insolvency proceedings, excess of liabilities over assets).
6.4 The Customer shall protect the technical equipment of the Provider and its vicarious agents installed in the rooms or locations specified by it from unauthorised interference by its own employees or Third Parties, shall not carry out any interference itself and shall inform the Provider immediately of any recognisable damage to or deficits in such technical equipment. Any measure or action, in particular on the property or on the premises (e.g. construction and renovation work), which is likely to impair the operation of the technical equipment must be coordinated with the Provider in good time.
6.5 The Customer shall not disclose to Third Parties any user names or any passwords or passphrases that may have been supplied to it and shall keep them safe from unauthorised access by Third Parties. The Customer shall immediately change its passwords and passphrases or arrange for changes to be made if there is reason to suspect that unauthorised persons have gained any knowledge of them. It is recommended to change passwords and passphrases at regular intervals for security purposes.
6.6 At the time of concluding this Contract, the Customer shall receive access to a platform with the Release Notes for the services of the Provider from the Provider. This gives the Customer access to information and the version notes for further developments of the products of the Provider. At the time of concluding this Contract, the Customer is obligated to provide the Provider with a contact address to which notifications regarding the release notes will be sent. Information on new features, improvements or changes to functionality shall be provided by the Provider exclusively via the release notes.
6.7 It is the Customer's own responsibility to ensure compliance with the recognised principles of data security against all types of data loss, data corruption, transmission errors or other disruptions. Provision of a security backup of customer data by the Provider only forms part of the scope of services if and insofar as it has been expressly agreed.
6.8 Unless expressly provided for in this Contract or in any of the other product-specific documents, the Customer may not make the Contractual Services available to Third Parties for permanent joint or sole use without the prior written consent of the Provider and may not provide services of any kind whatsoever based on the services of the Provider. Any unauthorised transfer of use and unauthorised resale shall entitle the Provider to terminate this Contract without notice, following an unsuccessful cease and desist notification.
6.9 The Customer is itself responsible for the content that it makes accessible to Third Parties, even if it uses technical services from the Provider for this purpose; this content is always third-party information as regards the Provider. It is expressly not permitted to offer, retrieve, transmit or supply illegal or immoral content and/or information via the services provided or to refer to such offers, in particular if within the meaning of Sections 130, 130a and 131 of the German Penal Code (StGB) they incite racial hatred, glorify or trivialise violence and war, incite others to commit criminal offences, are sexually offensive or pornographicwithin the meaning of Section 184 of the German Penal Code, disregard human dignity and/or are likely to seriously endanger the morals of children and young persons or impair their well-being. It is also prohibited to use the services of the Provider in order to engage in any behaviour that is experienced as threatening or harassing or that causes harm to the Provider or Third Parties.
6.10 The Customer may not misuse the services provided. In particular:
it may not send or transmit any information, items or other services (e.g. unauthorised advertising, programs causing damage), the sending or transmission of which is prohibited by law, e.g. not to make any calls and/or transmit any data that harms, harasses or threatens others;
in the case of outgoing calls, it may not add another telephone number to the local network telephone number and transmit it into the public telecommunications network if it does not have the right to use the corresponding telephone number or if it is not authorised as an added telephone number. German telephone numbers for directory enquiry services, public transport services, new types of services or premium rate services as well as telephone numbers for speed dial services may not be set up by subscribers as additional telephone numbers and transmitted into the public telecommunications network;
it must refrain from engaging in any action that leads to overloading the network capacity of the telecommunication network, e.g. the Internet (such as by using a voice connection to systematically and automatically establish connections in order to scan switched connections);
it may use voice modules for voice connections only and data modules for data connections only, insofar as this is provided for on the product side;
it may not misuse the services by unauthorised sending of emails to Third Parties for advertising purposes (junk/spam emails), unauthorised posting of messages in newsgroups for advertising purposes (spamming, excessive multi-posting, excessive cross-posting) or untargeted or improper dissemination of data in any other way (e.g. blocking third-party computers);
by unauthorised intrusion into an external computer system (hacking);
by scanning a network for open ports, i.e. access to computer systems (port scanning);
through the incorrect configuration of server services (such as proxy, news, email and web server services in particular), which lead to the unintentional replication of data (dupes, email relaying);
by falsifying email and news headers as well as IP addresses (IP spoofing);
by using fake websites (phishing); and
by spreading computer viruses and worms.
6.11 The Customer may perform its cooperation and provision obligations itself or instruct Third Parties to perform them. The foregoing clause shall not apply to participating in organising cooperation, unless otherwise agreed between the Contracting Parties in individual cases.
6.12 Insofar as the Provider installs local systems at the Customer's business premises, the Customer shall provide all of the connections required (e.g. multiplexer, telecommunications system interfaces, power supply, rack space) as well as remote maintenance access to the system of the Provider for the duration of the local operation and shall also grant technicians of the Provider (or their vicarious agents) access to these systems in the event of faults or required maintenance after prior notification by telephone.
6.13 Unless otherwise agreed in individual cases, the Customer shall perform its cooperation and provision obligations for the Provider free of charge.
6.14 The Provider shall inform the Customer at an early stage of the type, scope, timing and other details of the cooperation and provision services also to be provided by the Customer, unless the respective details of the cooperation and provision services are based on the Contractual Documents.
6.15 The Customer shall ensure and is responsible for ensuring that all of its own obligations are also complied with by any Third Parties who make use of the Contractual Services supplied to it.
6.16 If the Customer culpably fails to fulfil its obligations, the Provider may claim damages for the losses incurred, including any additional expenses, or else may extraordinarily terminate the underlying contract after issuing a warning and setting a reasonable deadline. In addition, the Provider is entitled to block the respective service or functionality from which the violation emanates, to erase corresponding content and to inform the competent authorities in the event of any improper and/or illegal action and if there are reasonable grounds for suspecting such a breach of an obligation. The Customer must be informed immediately by the Provider of any such blocking/erasure. The Customer shall indemnify the Provider against all valid claims brought against the Provider by Third Parties arising from a breach of one of these obligations, unless it can prove that it was not responsible for the breach of obligation that caused the losses.
7.1.1 The amount of fees received by the Provider for supplying the Contractual Services as well as the mechanisms for adjusting the fee in the event of an increase or decrease in the volume of the Contractual Services shall be specified in the respective Individual Order/Service Order. In the event that this is not the case, the Provider's General Price Lists shall apply.
7.1.2 The price for the respective service or partial service shall be re-agreed based on prices in line with the market to an appropriate extent whenever an Individual Order/Service Order is changed or added to.
7.1.3 If the fee is agreed on a basis of time and materials, the hourly rates of the Provider shall apply, unless otherwise agreed, whereby these rates are derived from the General Price List.
7.1.4 Unless otherwise agreed, additional services shall be charged on a time and materials basis, using hourly rates from the General Price List of the Provider.
7.1.5 The fees do not include statutory value-added tax.
The Contracting Parties shall re-determine the amount of the fees as soon as the costs of providing the underlying service of the Provider increase due to the introduction of or changes to taxes, other levies or other statutory provisions or regulations, due to official measures, as a result of an increase in wage, materials or other costs in such a way that the Contracting Parties would make a more than insignificant adjustment to the existing fees where it is intended that the relevant Individual Order/Service Order should be concluded once again. If the Contracting Parties cannot agree on the amount of the fees within a period of 4 weeks then the fees shall be determined by the Provider taking into account the respective prices customary in the market.
A price adjustment can be requested for the first time with effect from the 12th month after the Start of the Contract and only under the conditions defined in the respective Individual Order/Service Order. The foregoing shall apply accordingly to adjustments to the General Price List.
Unless otherwise agreed, the currency invoices shall be issued in is euros.
7.4.1 The Provider shall send the Customer an invoice once a month for the Contractual Services provided in the previous calendar month. The Provider, nevertheless, reserves the right to invoice at shorter or longer intervals, as the case may be.
7.4.2 The provisions of the German Telecommunications Act (Telekommunikationsgesetz), shall apply to the content of invoices and partial payments where publicly available Telecommunications Services have been provided.
7.4.3 If the Customer has ordered several products/services from the Provider, the Provider is entitled to issue a total invoice for the Customer, if the Customer has given the same invoice address for the services and the same account for the direct debit mandate.
7.4.4 The invoice shall be supplied to the Customer either in paper form or online in electronic form (hereafter referred to as an "online invoice"), depending on the specific agreement made. The Provider may charge a monthly fee for sending out an invoice in paper form in accordance with the respective product-specific Price Lists.
7.4.5 Fees for services offered by Third Parties, in particular for the use of special telephone numbers, may be claimed and invoiced by the Provider, insofar as internal agreements on the billing of these services have been concluded between the Third Party and the Provider. When offering publicly available Telecommunications Services within the meaning of the TKG (German Telecommunications Act), the provisions of the TKG shall apply.
7.5.1 Billing complaints are subject to the specific provisions of the TKG, i.e. in particular with regard to the billing of connection charges, prepaid products and non-genuine flat rates (with time or volume limits). The complaints period is eight weeks from receipt of invoice. The reason for the complaint must be clearly stated.
7.5.2 Furthermore, the following applies: The Customer may raise objections to the invoice and any balance shown therein within a period of eight weeks from receipt of invoice. The reason for the complaint must be clearly stated. The Provider shall make special reference in any invoices to the deadline to be observed and the consequences of failure to provide notification in good time. After expiry of this period, the invoice amount or the balance shall be deemed to have been approved.
7.6.1 All fees are payable without deduction and, as long as not expressly agreed elsewhere, are due no later than 14 days from receipt of invoice.
7.6.2 The Customer shall bear the costs incurred by a direct debit that has not been honoured or has been returned, insofar as the Customer is responsible for the same. The Provider shall be entitled to demand flat-rate reimbursement of expenses in accordance with the productspecific Price List applicable at the time this Contract was concluded. The Customer may prove that either no or fewer expenses were incurred as a result of the chargeback.
7.7.1 The Customer shall only be entitled to set off claims against claims of the Provider if its counter-claim is undisputed or has been legally established.
7.7.2 The Customer is only entitled to assert a right of retention, insofar as its counter-claim is based on the same contract, is undisputed or has been legally established.
7.8.1 The Customer shall enter into default at the very latest if it fails to make payment within 14 days of the due date of an invoice or the equivalent payment schedule. If the Customer has defaulted on payment, the Provider is entitled to charge default interest at the statutory rate. The right to claim for further losses caused by defaulting on payment is hereby reserved.
7.8.2 If the Customer has defaulted on the payment of fees, the Provider shall be entitled to withdraw from this Contract or to extraordinarily terminate this Contract and/or to claim damages for non-performance after the expiry of an unsuccessful grace period that has been set.
7.8.3 The damages payable by the Customer shall amount to 80% of the agreed minimum volume or 80% of the agreed monthly basic fees at the time of termination until the agreed end of the term of this Contract. The Customer may prove that the losses were less than this.
7.8.4 The Provider shall be entitled to switch the invoicing method to advance payment in the event that the Customer has repeatedly defaulted on payment or if other circumstances, in particular the threat of insolvency, give rise to fears that the Customer will not pay on time.
7.8.5 The authority of the Provider to block publicly available telephone services at the Customer is regulated by the statutory provisions, in particular the TKG.
7.8.6 Further statutory rights of the Provider, in particular to refuse service on telephone services other than publicly accessible telephone services in the event of service disruption (e.g. by blocking or withholding), remain unaffected. The Provider is entitled to block or withhold telephone services, in particular:
if the Customer has defaulted on payment for amounts which are not insignificant;
if the Customer has breached its obligations to cooperate and the Provider cannot reasonably be expected to continue to provide the service;
if there is good cause for termination without notice;
if there is a particular increase in the volume of connections and the amount of fees demanded and the facts justify the assumption that the Customer will object to these fees.
7.8.7 The Customer shall remain obligated to pay the agreed fee even in the event of a justified blocking or withholding of services. In the event of justified blocking, the Provider is furthermore entitled to charge the Customer a flat-rate fee for the reimbursement of expenses forblocking as well as for reconnection. The exact amount of the flat rate can be found in the respective product-specific Price List. The Customer may prove that either no or fewer expenses were incurred.
8.1.1 The entire Intellectual Property of the Customer existing at the time an Individual Order/ Service Order comes into effect, as well as adaptations, modifications and further developments to its Intellectual Property by the Provider shall be for the exclusive use of and exploitation by the Customer.
8.1.2 The Customer hereby grants the Provider a non-exclusive, non-transferable right to use the Customer's Intellectual Property for the duration of the respective Individual Order/Service Order, insofar as this is necessary in order to provide the Contractual Services to the Customer. The production of copies of the Customer's Intellectual Property as well as the processing or modification of such is only permitted to the extent necessary in order to perform the Contractual Services. Granting sub-licences or usage by Third Parties is excluded, subject to any individual agreement that may be reached in individual cases.
8.2.1 Unless otherwise agreed on an individual basis, the entire Intellectual Property of the Provider existing at the time a Service Order is concluded as well as adaptations, modifications and further developments to the Intellectual Property of the Provider existing at the time a Service Order is concluded shall remain the property of the Provider during the term of this Contract.
8.2.2 The Provider grants the Customer a non-exclusive, non-transferable right, limited in time to the duration of the contract, to use the Provider’s Intellectual Property to the extent necessary for the use of the Contractual Services. The production of copies of the Provider's Intellectual Property as well as the processing or modification of such is only permitted to the extent strictly necessary in order to perform the Contractual Services.
Unless otherwise agreed, all documents shall be and remain the property of the Contracting Party surrendering them and may not be reproduced in whole or in part without the express written consent of the Contracting Party surrendering them.
The Provider will collect, process and use data within the meaning of the General Data Protection Regulation (GDPR) and other relevant data protection provisions (secrecy of telecommunications) only in accordance with the relevant statutory provisions.
9.2.1 The Provider collects, processes and uses the data provided by the Customer for the purpose of providing the Contractual Services for the Customer by way of commissioned data processing in accordance with instructions (Art. 28 GDPR).
9.2.2 The Customer retains full control over the data to be collected, processed and used by the Provider on behalf of the Customer. The Customer is the data controller. In the relationship between the Contracting Parties, all data collected, processed or used by the Provider on behalf of the Customer is the sole property of the Customer; the Provider has no right of retention in this regard.
9.2.3 The Provider shall comply with instructions of the Customer relating to observance of the provisions of the GDPR or other relevant data protection regulations. It shall collect, process and use the data received from the Customer in the course of providing the service exclusively in accordance with the Customer's instructions. If the Provider is of the opinion that the execution of such instructions might lead to a breach of data protection regulations the Provider is obligated to inform the Customer in writing of this immediately.
9.2.4 The type of Personal Data collected, processed and used on behalf of the Customer and the purposes for which the Provider may process and use such Personal Data must be specified in the Individual Orders/Service Orders.
9.2.5 Further details shall be regulated by a separate Commissioned Data Processing Agreement, which must be concluded between the Contracting Parties.
10.1.1 The Contracting Parties shall keep confidential all Confidential Information disclosed by one Contracting Party to the other Contracting Party under this Contract or received from the other Contracting Party and shall use it solely for the purpose of providing the services in accordance with the relevant Individual Order/Service Order. They will protect the Confidential Information from unauthorised access and treat it with the same level of care that they use with their own equally Confidential Information, but at the very least, the level of care of a prudent business person.
10.1.2 Confidential Information may not be disclosed by the receiving Contracting Party to Third Parties without the prior written consent of the other Contracting Party, unless:
(a) this is required by a mandatory Applicable Legal Framework, a judicial order or an order from a supervisory authority and the receiving Contracting Party has immediately informed the other Contracting Party in writing of the respective obligation or
(b) the Confidential Information is disclosed to the receiving Contracting Party's advisors in connection with the interpretation or execution of the Contractual Documents or any dispute arising therefrom and the advisor has previously given a written undertaking to the receiving Contracting Party to maintain confidentiality or is already under a professional obligation to maintain confidentiality.
Confidential Information of the respective other Contracting Party contained in the documents and data shall be destroyed or erased by the respective Contracting Party. This obligation also applies to any other documents or data created or otherwise generated based on the aforementioned documents or data. The Contracting Parties shall confirm to each other in writing within thirty (30) calendar days of the termination of an Individual Order/Service Order that the foregoing obligations have been fulfilled.
For each breach of the confidentiality obligation, the respective Contracting Party shall pay the other Contracting Party an appropriate contractual penalty to be determined by it, the amount of which may be reviewed by the competent court. Asserting the defence of continuance (Fortsetzungszusammenhang) is hereby excluded. In the event of continued breach, the contractual penalty shall be payable for each month or part thereof in which the obligated is breached. Further claims for performance and damages remain unaffected by the demand for payment of the contractual penalty.
This obligation shall continue to apply until three years after the termination of this Contract.
The Contracting Parties are liable to each other in accordance with the general statutory provisions, unless the following provisions provide otherwise. The provisions of this Section apply to all claims for damages, regardless of their legal basis, unless expressly excluded elsewhere in this Contract.
11.2.1 The Provider is liable for damages within the framework of statutory provisions in accordance with these Terms and Conditions, insofar as the cause of the losses is based on an intentional act or omission, or gross negligence. The Provider's liability for simple negligence in the event of a breach of fundamental contractual obligations (obligations the performance of which is a prerequisite for the proper implementation of this Contract and the observance of which the contractual partner relies on and is also entitled to rely on) is restricted to those losses typically foreseeable for this type of Contract. Otherwise, liability for negligence is hereby excluded.
11.2.2 The limitation of liability under Section 12.2.1 does not apply in the event of injury to life, limb or health, in the event of fraudulently concealed defects or a warranty assumed by the Provider. Liability under the German Product Liability Act is likewise unaffected.
11.2.3 The Provider is not liable for losses caused by callers being forwarded to a connection other than the one specified in the contract without the owner of the connection having agreed to the forwarding.
11.2.4 The Provider is not liable for any loss of data and/or programs insofar as the associated losses are due to the fact that the Customer failed to carry out regular data backups, so that lost data could be restored with reasonable effort.
11.2.5 The Customer may not derive any claims for damages against the Provider from the loss of the potential use of the services during required maintenance work, unless the associated losses were caused by the Provider as a result of an intentional act or omission, or gross negligence.
11.2.6 If the Provider is subject to an obligation to compensate the Customer for financial losses in relation to publicly accessible telecommunication services and the losses were not caused by an intentional act or omission, liability shall be limited to a maximum of 12,500 euro. If the liability for damages arises from a uniform act or a uniform event causing losses to several customers but is not based on an intentional act or omission, liability for damages shall be limited to a maximum of 10 million euro in total, notwithstanding the limitation in sentence 1. If the damages to be paid to multiple injured parties due to the same event exceeds the maximum limit, the damages shall be reduced in the same ratio as the total of all of the claims for damages to the maximum limit. The limitation of liability in sentences 1 to 3 does not apply to claims for damages for losses caused by any delay in paying out damages.
11.2.7 The Provider is only liable for events or disruptions causing losses (including the non-connection or termination of a telephone call) that occur on transmission paths or switching equipment of other Third Parties, in particular other providers or network operators, insofar as the Provider is entitled to claim damages against the other providers and Third Parties. The Provider may fulfil its obligations towards the Customer by assigning these claims for damages. Any further liability of the Provider is excluded in these cases. This shall not apply insofar as the events or disruptions causing losses were culpably caused by the Provider or its vicarious agents or statutory representatives.
11.2.8 If the liability of the Provider is excluded or limited, this shall also apply to the personal liability of its employees, representatives or vicarious agents.
12.1 If an event of Force Majeure results in one of the Contracting Parties not being able to fulfil its obligations, not being able to fulfil them completely or not being able to fulfil them in time, the affected Contracting Party shall immediately notify the other Contracting Party in writing of the nature of the event and the probable effects on its contractual obligations, in particular on the provision of the Contractual Services.
12.2 The Contracting Party affected by an event of Force Majeure shall be released from its contractual obligations for the duration of the event of Force Majeure, provided that it has complied with its duty to provide information in accordance with Section 12.1 above.
12.3 The Provider is entitled to modify services (e.g. in the case of software updates or upgrades) or to temporarily restrict or suspend services, insofar as it is necessary to do so due to a judicial decision or an official measure, for reasons of public safety, for the security of network operations, to maintain network integrity, to ensure the interoperability of services, to safeguard data protection, to prevent illegal use or misuse or to improve services.
12.4 The same applies to service restrictions or suspensions that occur due to necessary maintenance, installation and renovation work. The Provider shall inform the Customer of any measures of the above types as well as of necessary construction measures and shall coordinate these with the Customer.
Unless otherwise agreed in individual cases, the Individual Order/Service Orders agreed shall enter into force on the first of each calendar month after all conditions precedent have been fulfilled. The individual Service Orders have a minimum contract term of 24 months, unless otherwise agreed. The minimum contract term shall be extended by a further 12 months in each case unless one of the Contracting Parties terminates the contract with 3 months' notice to the end of the agreed term.
13.1.1 The right to terminate for good cause remains unaffected.
13.1.2 Good cause entitling the Provider to extraordinary termination exists in particular if,
the Customer defaults on payment of more than an insignificant amount of the fees owed for two consecutive months or, in a period exceeding two months, of an amount corresponding to the average fees for two months;
a significant deterioration of the financial circumstances of the Customer or of the value of a security occurs or threatens to occur and as a result the fulfilment of a liability towards the Provider is at risk, even with the realisation of a security existing for this purpose;
an application to commence insolvency proceedings regarding the Customer's assets is rejected due to lack of assets or is discontinued, proceedings for its dissolution, liquidation or winding-up are initiated;
the Customer ceases business operations or has an excess of liabilities over assets;
the Customer completely prevents the complete installation and production of the Contractual Services through its culpable action or omission in breach of an obligation or makes this considerably more difficult for a period of more than one day, so that adherence to this Contract becomes unreasonable;
the Customer otherwise seriously breaches its contractual obligations, in particular its cooperation duties and obligations;
the Customer behaves in any other way contrary to this Contract, including in particular all violations of criminal law resulting from the customer relationship as well as the improper use of the Contractual Services, including impairing the quality and functionality of the services.
13.1.3 Claims for damages remain unaffected by the right to terminate the Contract for good cause. If the Provider terminates the contractual relationship without notice for good cause for which the Customer is responsible, the Customer shall be obligated to compensate the Provider for the losses incurred. The Provider may claim damages in the amount of the fixed monthly basic prices or the monthly minimum charge in the case of tariffs without a fixed basic price which would have been payable by the Customer from the time the Contract is extraordinarily terminated until the next ordinary termination date. The Customer may prove that the Provider has suffered no losses or fewer losses as a result of the termination.
13.1.4 The provisions on liability pursuant to Section 11 [see Liability] shall apply.
14.1 All claims against the Provider shall lapse within one year of the other Contracting Party's awareness that the claim has arisen. Liability claims arising from losses caused by an intentional act or omission, or by gross negligence are excluded.
14.2 The warranty claims shall lapse within one year of the provision of the service.
14.3 Within the scope of application of the TKG as well as other special laws, their limitation period provisions shall take precedence insofar as they are mandatory.
Unless otherwise agreed, the Provider is entitled to publish and use the name of the Customer and a description of the Contractual Services in press releases and other marketing materials.
The Contracting Parties undertake to refrain from actively soliciting employees of the other Contracting Party themselves or by means of Third Parties during the term of this Contract and within 12 months of termination of this Contract.
Unless otherwise agreed in the individual Contractual Documents, all notices must be addressed to the Contact Persons of the Contracting Parties. All notices, in particular notices of termination, must be made in written form.
No oral agreements have been entered into regarding this Contract.
Amendments or supplements to this Contract or the other Contractual Documents must be made in written form as per section 126 of the German Civil Code (BGB) and signed by the authorised Contact Persons of both Contracting Parties in order to be valid. The same applies to any waiver of this written form requirement. In the event of deviations from this Contract, the particular provision of this Contract from which a deviation is to be made shall be expressly stated in the respective agreement.
Unless otherwise provided by law, email does not count as the written form.
If any individual provisions of this Contract or the agreements made under this Contract are or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of this Contract and the agreements made under this Contract. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the commercial intent of the invalid or unenforceable provision. The same applies in the event that the Contracting Parties subsequently discover that this Contract or an agreement made under this Contract contains a gap or an omission.
This Contract and the agreements made under this Contract shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
The exclusive place of jurisdiction is the place of the registered office of the Provider provided the Customer is a merchant, a legal entity under public law or a special fund under public law, is domiciled abroad or relocates its usual place of residence abroad after conclusion of this Contract and provided the law does not mandatorily prescribe otherwise.
[Last update: 07/12/2023]