Last update: 01.06.2021
1.1 These terms and conditions apply exclusively to the offers, services, sales and deliveries of vier.ai GmbH (hereinafter referred to as the PROVIDER). Conditions that contradict or deviate from these terms and conditions only apply if they are confirmed in writing by the PROVIDER as an addition to these terms and conditions.
1.2 These terms and conditions also apply if the PROVIDER is aware of conflicting or deviating conditions of the CUSTOMER the delivery and/or service is carried out without reservation. References or counter-confirmations by the CUSTOMER with reference to his purchasing conditions are hereby expressly contradicted.
1.3 These terms and conditions also apply to all future business with the CUSTOMER.
The following definitions apply to this terms & conditions and to all agreements made under these conditions:
2.1.1 “Current state of the art” includes all technical knowledge gained up to the respective specific point in time that has found its way into business practice and is generally recognised.
2.1.2 “Contact person” is a person appointed by the CUSTOMER or SUPPLIER for a certain field of activity, who is authorised for representation in this field of activity.
2.1.3 “Applicable legal Framework conditions” shall include all laws and ordinances as well as government regulations, notices and directives with which the contracted services must comply, including all regulatory requirements.
2.1.4 “Work deliverable(s)” are all services created by the SUPPLIER, insofar as they may be the subject of his own rights, such as documentation, reports, charts, studies, drafts.
2.1.5 “Business Case” of the CUSTOMER shall be the assumptions and calculation bases on which the CUSTOMER has based the outsourcing of the contractual services in each case. These are specified in each case in the certificate of services.
2.1.6 “Third parties” are all natural personsand legal entities as well as all other organisations that are not a Contracting Party.
2.1.7 “Required permits” are all licences, consents, permits, approvals and authorisations which are required for the provision of the contractual services.
2.1.8 “Consequential damages” are untypical damages which were not foreseeable at the time of the conclusion of the service protection affected by the damaging event in each case (e.g. loss of profit).
2.1.9 “Intellectual property” includes allindustrial property rights and positions similar to industrial property rights of any kind, such as patent rights, trademark rights, utility model and design rights, copyrights as well as rights of use and exploitation, whether registered or not, including the right to apply for such rights, as well as know-how,which are currently in existence or may be acquired at a later date.
2.1.10 “Force majeure” is an event that could not have been foreseen by either of the contracting parties by exercising the utmost care that could reasonably be expected and, insofar as the provision of the contractual services is concerned,could not have been avoided, particular through emergency plans and emergency measures of the SUPPLIER. Force majeure in this context may include the following events, in particular: War, insurrection, riot, embargo, explosion, fire, flood, severe weather, in-house legitimate industrial action.
2.1.11 “IT system(s)” are the networks, communication systems, hardware, software, interfaces and other technical information technology equipment used by the SUPPLIER and provided by the CUSTOMER for the use of the services that are the subject matter of the contract.
2.1.12 “Place of performance” is the placewhere the SUPPLIER has to perform the service actions that characterise the service promise, such as the operation of the server, the location of the helpdesk, etc.
2.1.13 A “Performance Deficiency” is deemed to exist if (a) the contractual services do not meet the contractually stipulated requirements and specifications in whole or in part, in particular if the SUPPLIER does not comply with the respective service levels, or (b) the contractually stipulated services are not suitable for the contractually stipulated use, or (c) do not have a quality which is customary for services of a similar kind and which the CUSTOMER can expect according to the nature of the contractual services.
2.1.14 “Multi-client capability/multi-client capable” means that the 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 ranking entity in the IT systems used by the SUPPLIER for the provision of services as well as being a unit in these IT systems which is self-contained in terms of data technology and organisation. In detail, multi-client capability means
the possibility of disjunctive, client-oriented data storage; i.e. that in particular (a) access by third parties to CUSTOMER data is physically impossible and separation as well as mutual shielding of the data stored and processed for the respective customers of the SUPPLIER is ensured and (b) the confidentiality of CUSTOMER data is always ensured and no third party can obtain knowledge of CUSTOMER data and (c) the incoming, processed and stored data of the CUSTOMER are protected against manipulation by third parties,
the option of exercising the control/audit rights granted to the CUSTOMER, without infringing upon the rights of third parties.
2.1.15 “Personal data” are details about personal or factual circumstances of an identified or identifiable individual in terms of the General Data Protection Regulation (GDPR).
2.1.16 “Service levels (Agreements)” are the performance requirements specified in a performance certificate, which define the type and scope of the contractual services in terms of location, time, quality and quantity.
2.1.17 “Service level credit” means a service credit mechanism in which the SUPPLIER is debited through an internal credit in favour of the customer if the service request does not meet the contractually agreed service level.
2.1.18 “Subcontractor” is anyone who, withthe consent of the SUPPLIER, acts as the SUPPLIER’s vicarious agent in the performance of an obligation incumbent upon the SUPPLIER under this terms & conditions, without being in an employment relationship with the SUPPLIER.
2.1.19 “Standard services” are services that the SUPPLIER provides to at least two customers.
2.1.20 “Telecommunications services” are services which consist wholly or mainly in the transmission of signals via telecommunications networks.
2.1.21 “Traffic data” are data that are collected, processed or used in the course of providing a telecommunications service.
2.1.22 “Contract start” is the point in time at which the SUPPLIER provides a service to the CUSTOMER under a performance certificate for the first time in accordance with the contract.
2.1.23 “Contractual services” are the services to be provided by the SUPPLIER in accordance with the contract documents, including such services, duties and responsibilities as are not expressly specified but are necessary for the proper performance and delivery of the services under the contract.
2.1.24 “Contract documents” are the single order/service certificate, this terms & conditions including the annexes and the appendices to the annexes, as well as all agreements made under this Framework contract.
2.1.25 “Contracting parties” are the SUPPLIER and the CUSTOMER.
2.1.26 “Confidential information” is all information and documents, including contractual documents, which are either marked as confidential or the confidentiality of which results from the circumstances and/or their nature. Confidential information is in particular technical, business and other information, for example information relating to technologies, research and development, products, services, prices of products and services, customers, employees, subcontractors, marketing plans, and financial matters.
Information is not considered to be confidential information, if it
(a) was known to the receiving contracting party before it wasreceived from the other contracting party under this terms & conditions, or
(b) the receiving contracting party has independently developed it without resort to the confidential information of the other contracting party, or
(c) the receiving contracting party has obtained it from a third party that is not bound by restrictions with respect to the use and disclosure of this information, or
(d) it is or becomes generally known through no fault of or intervention by the receiving contracting party, or
(e) one contracting party has excepted it from the confidentiality requirement by a written declaration to the receiving contracting party.
This terms & conditions shall apply to all services provided by the SUPPLIER to the CUSTOMER during the contractual term.
3.2.1 The services to be provided by the contracting parties in individual cases shall be agreed upon by the contracting parties in individual agreements, in particular performance certificates. If a performance certificate is concluded, this terms & conditions shall become an integral part of the contract – unless expressly stipulated otherwise in writing in individual cases.
3.2.2 The provisions of the performance certificate shall be supplemented by the product- related performance specifications and any product-related price lists, unless otherwise agreed in the individual case. The general terms and conditions of the CUSTOMER shall not apply.
In case of ambiguities or contradictions between the individual contractual documents, the following order of precedence shall apply:
3.3.1 With regard to the determination of the object of performance, the prices and the CUSTOMER’s obligations to cooperate:
supplementary agreements to the respective performance certificate and its annexes,
the annexes to the respective performance certificate,
the main document of the respective performance certificate,
the offer of the SUPPLIER in each case preceding the conclusion of a performance certificate.
3.3.2 With respect to the legal framework set forth in this terms & conditions and its annexes and also appendices to the annexes:
the provisions of this terms & conditions,
the annexes to the respective performance certificate,
the main document of the respective performance certificate,
the statutory provisions.
3.3.3 If the order of precedence of the stipulations does not clearly result from clause 3.3.1 or 3.3.2, a document of more recent date shall take precedence over a document of older date and a special provision shall take precedence over a general provision.
4.1.1 The services to be provided by the SUPPLIER are set out in detail in the respective performance certificates.
4.1.2 The use of the services of the SUPPLIER may require the use of customer- owned terminal equipment/terminaldevices (e.g. telephones, PCs, routers, computer programs). These devices and terminal equipment are only part of the scope of services of the SUPPLIER if they are part of the product-specific performance specifications or if this is expressly agreed. The SUPPLIER shall not be responsible for performance restrictions or failures caused by the use of the CUSTOMER’s own terminal equipment and terminal devices.
4.1.3 When using telecommunication networks of other providers, the SUPPLIER’s obligation to perform shall be limited in principle 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 provided by the SUPPLIER, even if they are used on the basis of the services provided by the SUPPLIER. The same applies to content offered by third parties that can be accessed via services provided by the SUPPLIER.
Unless otherwise specified or specifically agreed in a performance certificate, the SUPPLIER shall provide the contractual services in each case in accordance with the current state of the art.
The SUPPLIER shall configure and operate the IT systems used to provide the contractual services in such a way that they are multi-client capable.
4.4.1 The SUPPLIER is basically free to relocate or change the places of performance within the European Union or the European Economic Area.
4.4.2 The relocation of a place of performance, individual contractual services or individual parts of services outside the European Union or the European Economic Area shall require the prior written consent of the CUSTOMER. The CUSTOMER shall refuse consent to such relocation to a member state of the European Union or the European Economic Area only if there is good cause. In the event of a 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 Art.28 of the GDPR are met at the sametime. Otherwise, sentence 2 shall apply.
4.5.1 Dates and deadlines for the commencement of the services shall only be binding insofar as they have been expressly agreed between the contracting parties or expressly confirmed in writing by the SUPPLIER.
4.5.2 In the event of non-timely 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.
4.5.3 If, in the course of the installation work to be performed by the SUPPLIER in accordance with the contract, hardware or software expansions that were not foreseeable for the SUPPLIER at the time the contract was concluded become necessary at the CUSTOMER’s premises, the time of provision shall also depend on delivery by the corresponding upstream supplier. Any delays resulting therefrom shall not be the responsibility of the SUPPLIER.
4.5.4 Unless otherwise agreed, the following shall apply: Saturday, Sunday and allf ederal and state holidays are not considered working days. Regular working hours at the SUPPLIER are between 08:00hrs and 18:00hrs on workdays.
4.6.1 The SUPPLIER shall be entitled to adjust the agreed fees in the event of a change in the
statutory value added tax,
costs for the services of other providers to which the SUPPLIER grants the Customer access in accordance with the contract,
costs for special network access and for interconnections,
fees/costs due to official or court decisions, such as those of the Federal Network Agency,
from the time of and in the amount of the change for the future by unilateral declaration towards the CUSTOMER.
4.6.2 The SUPPLIER is entitled to change the contractual agreements at any time by unilateral declaration if these changes are exclusively in favour of the CUSTOMER.
4.6.3 The SUPPLIER is entitled to change the agreed services if this is necessary for good cause that was not foreseeable at the time the contract was concluded, if the change is reasonable for the CUSTOMER, and if the relationship between performance and counter- performance is not significantly shifted to the CUSTOMER’s disadvantage. Good cause exists if new technical developments make a change in service necessary because the service can no longer be provided in the previous contractually agreed form, if newly enacted or amended statutory or other sovereign requirements necessitate a change in service, or if a pre-supplier discontinues its regulated upstream products or replaces them with other comparable upstream products. The change is reasonable if it does not result in any significant restrictions for the services used by the CUSTOMER or if an alternative service with a substantially comparable performance is available. The CUSTOMER may terminate the contractual relationship concerning within four weeks after receipt of the notice of change for the time the change takes effect. In the notice of change, the SUPPLIER shall inform the CUSTOMER of its right to terminate the contract.
5.1 The CUSTOMER shall inspect the performance immediately after it has been made available and, if a defect or defect in performance becomes apparent, shall notify the SUPPLIER without delay at least in text form. § 377 of the German Commercial Code (HGB) shall apply mutatis mutandis.
5.2 In the event of the occurrence of performance deficiencies, the following procedure shall apply, unless otherwise provided for in the performance certificates
(1) Informing of the other contracting party about the performance deficiency,
(2) Analysis and investigation of the cause of the performance deficiency,
(3) Elimination of the performance deficiency,
(4) Subsequent performance of the contractual service affected by the defect in performance, insofar as this is possible and reasonable,
(5) Reduction of the remuneration,
(6) Assertion of damages and termination for good cause.
5.3 Each performance deficiency shall be assigned to one of the following categories:
“Critical performance deficiency”: a performance deficiency that precludes the use of the contractual services in whole or in part or substantially restricts the CUSTOMER’s business operations;
“Material performance deficiency”: a performance deficiency that does not preclude the use of the contractual services or does not materially restrict the CUSTOMER’s business operations, but 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 affected business operations of the CUSTOMER can be reduced to a reasonable level by means of reasonable workarounds. The simultaneous occurrence of several material performance deficiencies may result in a critical performance deficiency.
“Insignificantperformancedeficiency”: a performance deficiency that only slightly impairs the use of the contractual service or the CUSTOMER’s business processes.
5.4 For the investigation and/or elimination of a performance deficiency that does not actually exist or a performance deficiency that is based on circumstances for which the CUSTOMER is responsible, the SUPPLIER may demand compensation for expenses on the basis of his then valid general price list.
If it is not possible or not reasonable to make up for the contractual performance affected by the performance deficiency, the CUSTOMER shall be entitled to reduce the remuneration to a reasonable extent.This shall not apply insofar as the performance deficiency consists of the non-achievement of a specification for which a service level credit has been agreed.
6.1 Unless otherwise agreed and if it is not a case of contract processing within the meaning of Section 28 of the General Data Protection Act (GDPR), the SUPPLIER shall be entitled to transfer the contractual services, in whole or in part, to subcontractors without the prior written consent of the CUSTOMER.
6.2 In the event of contract processing, the contracting parties shall regulate this in detail in a separate order processing contract.
7.1 The CUSTOMER shall provide the SUPPLIER with all information required for the operation and installation of the contractual services in a complete, timely and truthful manner.
7.2 The CUSTOMER shall designate a responsible and authorised contact person for the arrangement of the necessary work with the SUPPLIER before, during and after the end of the contractually agreed service period in connection with planning, provision, service delivery and deinstallation.
7.3 The CUSTOMER shall notify the SUPPLIER without delay of any changes relevant to the contract, in particular regarding the CUSTOMER’s name or company name, legal form, address and billing address, bank details, the contact person appointed by the CUSTOMER, as well as fundamental changes in legal or financial circumstances (e.g. transformations, assignment of rights under the contract, application for the opening of insolvency proceedings, insolvency).
7.4 The CUSTOMER shall protect the technical equipment of the SUPPLIER 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 notify the SUPPLIER immediately of any recognisable damage or defects to or 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 facilities shall be coordinated with the SUPPLIER in good time.
7.5 The CUSTOMER shall not disclose tothird parties any user names as well as passwords and user IDs that may have been provided to it and shall keep them protected from unauthorised access by third parties. The CUSTOMER must change passwords and identification codes immediately or arrange for changes to be made if there is reason to suspect that unauthorised persons have obtained knowledge of the password. It is recommended to change passwords and identifiers at regular intervals for security reasons.
7.6 Upon conclusion of the contract, the CUSTOMER shall be given access by the SUPPLIER to a platform with the release notes of the SUPPLIER’s services. This gives the CUSTOMER access to information and release notes on further developments of the products of the SUPPLIER. The CUSTOMER is obligated to provide the SUPPLIER with a contact address upon conclusion of the contract to which notices regarding the release notes will be sent. Information on new features, improvements or changes in functionality shall be provided by the SUPPLIER exclusively via the release notes.
7.7 The CUSTOMER shall ensure compliance with the recognised principles of data security against all types of data loss, data corruption, transmission errors or other disruptions on its own responsibility. Backing up of customer data by the SUPPLIER is only part of the scope of services if and insofar as this is expressly agreed.
7.8 Unless expressly provided for in the contract or 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 SUPPLIER’s prior written consent and may not provide any services of any kind based on the SUPPLIER’s services. The unauthorised transfer of use and the unauthorised resale shall entitle the SUPPLIER to terminate the contract without notice after unsuccessful warning.
7.9 The CUSTOMER is responsible for the content that it makes accessible to third parties, even if it uses the SUPPLIER’s technical services for this purpose; this content is basically third- party information for the SUPPLIER. It is expressly not permitted to offer, retrieve, transmit or provide illegal or immoral content and/or information via the services made available, or to refer to such offers, in particular if these incite racial hatred within the meaning of §§130,130a and 131 of the German Criminal Code (StGB), glorify or trivialise violence and war, incite others to commit criminal acts, are sexually offensive or pornographic within the meaning of Section 184 of the German Criminal Code, disregard human dignity and/or are likely to seriously endanger the morals of children and young people or impair their well-being. It is also inadmissible to use the services of the SUPPLIER for conduct that is perceived as a threat or harassment, or that causes damage to the SUPPLIER or third parties.
7.10 The CUSTOMER must not abuse the services provided, and in particular must not
send or transmit any information, items or other services (e.g. unauthorised advertising, programs that cause damage) that are prohibited by law from being sent or transmitted, e.g. make calls and/or transmit data that could harm, harass or threaten others;
add another telephone number to the local network number for outgoing calls and transmit it to the public telecommunications network if it does not have the right to use the corresponding telephone number or if this number is not authorised as a dialled number. German numbers for directory assistance services, mass transit services, new types of services or premium rate services as well as numbers for abbreviated dialling voice services must not be set up by subscribers as additional numbers and transmitted into the public telecommunications network;
it must refrain from any action that leads to an overload of the network capacity of the telecommunications network, e.g. the internet (e.g. by using the voice connection to systematically and automatically establish connections in order to scan switched connections);
it may use voice modules exclusively for voice connections and data modules exclusively for data connections, insofar as this is provided for on the product side;
by unauthorised sending of e-mails to third partiesfor advertising purposes (junk/spam e-mails), 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. prohibition of blocking third-party computers);
by unauthorised intrusion into a third-party computer system (hacking);
by searching a network for open ports, i.e. accesses to computer systems (port scanning);
through the incorrect configuration of server services (such as proxy, news, e-mail and web server services, in particular), leading to the unintentional replication of data (dupes, e-mail relaying);
by falsifying e-mail and news headers as well as IP addresses (IP spoofing);
by using fake websites (phishing) and
by spreading computer viruses and worms.
7.11 The CUSTOMER shall be entitled to either fulfil the duties of cooperation and provision incumbent upon it itself, or to commission third parties with the fulfilment of these duties. The latter shall not apply to cooperation in the organisation of the cooperation, unless otherwise agreed between the contracting parties in the individual case.
7.12 Insofar as the SUPPLIER installs local systems in the CUSTOMER’s business premises, the CUSTOMER shall provide all connections required for this purpose (e.g. multiplexer, PBX interfaces, power supply, rack space) as well as remote maintenance internet access to the SUPPLIER’s system for the duration of local operation and shall grant the SUPPLIER’s technicians (or its vicarious agents) access to these systems in the event of malfunctions or maintenance after prior notification by telephone.
7.13 Unless otherwise agreed in individual cases, the CUSTOMER shall perform its cooperation and provision obligations for the SUPPLIER free of charge.
7.14 The SUPPLIER shall inform the CUSTOMER at an early stage of the type, scope, timing and other details of the cooperation and provision services to be provided by the CUSTOMER in addition, unless the respective details of the cooperation and provision services can be derived from the contractual documents.
7.15 The CUSTOMER shall ensure and be responsible for ensuring that all obligations incumbent upon it are also complied with by any third parties who make use of the services provided to it under the contract.
7.16 If the CUSTOMER culpably fails to fulfil its obligations, the SUPPLIER may demand compensation for the damage incurred, including any additional expenses, or terminate the underlying contract on an extraordinary basis after issuing a warning and setting a reasonable deadline. In addition, the SUPPLIER is entitled to block the respective service or functionality from which the violation originates, to delete corresponding content and to inform the responsible authorities in the event of any abusive and/or illegal action, as well as in the event of justified suspicion of such a breach of duty. The CUSTOMER shall be informed of such blocking/deletion by the SUPPLIER without delay. The CUSTOMER shall indemnify the SUPPLIER against all justified claims brought against the SUPPLIER by third parties arising from a breach of one of these obligations, unless the CUSTOMER can prove that it was not at fault for the breach of obligation that caused the damage.
8.1.1 The amount of remuneration received by the SUPPLIER for the provision of the contractual services, as well as the mechanisms for adjusting the remuneration for an increase or reduction in the volume of the contractual services, shall be specified in the respective performance certificate. If this is not the case, the SUPPLIER’s general price lists shall apply.
8.1.2 The price for the respective service or partial service shall be renegotiated to an appropriate extent on the basis of prices in line with the market if a performance certificate is changed or supplemented.
8.1.3 If remuneration is agreed on a time and material basis, the hourly fee rates of the SUPPLIER as set forth in the general price list shall apply unless otherwise agreed.
8.1.4 Unless otherwise agreed, additional services shall be remunerated on a time and material basis using the hourly rates of the SUPPLIER’s general price list.
8.1.5 The remuneration shall be exclusive of the statutory value-added tax.
The contracting parties shall re-determine the amount of the remuneration as soon as the costs for the provision of the underlying service of the SUPPLIER increase due to the introduction of or changes to taxes, other levies or other statutory provisions or regulations, due to official measures, due to an increase in wage,material or other costs in such a way that the contracting parties would make a more than insignificant adjustment to the existing remuneration level in the event of an intended new conclusion of the relevant performance certificate. If the contracting parties are unable to agree on the amount of the remuneration to be newly determined within a period of 4 weeks, the remuneration shall be determined by the SUPPLIER taking into account the respective price level customary on the market.
A price adjustment may be demanded 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 performance certificate. The foregoing shall apply mutatis mutandis to the adjustment of the General Price List.
Unless otherwise agreed, invoices shall be issued in Euro currency.
8.4.1 The SUPPLIER shall send an invoice to the CUSTOMER once a month for the contractual services rendered in the preceding calendar month. However, the SUPPLIER reserves the right to invoice at shorter or longer intervals.
8.4.2 The provisions of the Telecommunications Act (§§45e et seq. and §99 TKG) shall apply to the contents of the invoice and partial payments for the provision of publicly available telecommunications services.
8.4.3 If the CUSTOMER has ordered several products/services from the SUPPLIER, the SUPPLIER shall be entitled to issue a collective invoice for the CUSTOMER if the CUSTOMER has specified the same billing address for the services and the same account for the direct debit authorisation.
8.4.4 The invoice shall be provided to the CUSTOMER in paper form or online in electronic form (hereinafter referred to as "online invoice"), depending on the agreement. The SUPPLIER may charge a monthly fee for the submission of a paper invoice in accordance with the respective product-specific price lists.
8.4.5 Remuneration for services offered by third parties, in particular for the use of special numbers, may be claimed and invoiced by the SUPPLIER if internal agreements for billing these services have been concluded between the third party and the SUPPLIER. When offering publicly accessible telecommunications services, § 45 h TKG shall apply.
8.5.1 Billing complaints shall be subject to §§ 45 i and 45 j TKG in their scope of application, i.e. in particular for the billing of connection charges, prepaid products and non-genuine flatrates (with time or volume limits). The complaint period is eight weeks after receipt of the bill. The reason for the complaint must be explained conclusively.
8.5.2 Otherwise, the following shall apply: The CUSTOMER may raise objections to the invoice and any balance shown therein within a period of eight weeks from receipt of the invoice. The reason for the complaint must be explained conclusively. The SUPPLIER shall make special reference in the invoices to the deadline to be observed and the consequences of failure to notify in due time. After expiry of this period, the invoice amount or the balance shall be deemed approved.
8.6.1 All remunerations shall be payable without deduction and shall be due no later than 14 days after receipt of the invoice, unless expressly agreed otherwise.
8.6.2 The CUSTOMER shall bear the costs arising from a direct debit not honoured or returned, insofar as it is at fault for this. The SUPPLIER shall be entitled to demand a lump- sum reimbursement of expenses in accordance with the product-specific price list applicable at the time of conclusion of the contract. The CUSTOMER shall be entitled to prove that no expense or lower expenses were incurred due to the chargeback.
8.7.1 The CUSTOMER shall only be entitled to offset against claims of the SUPPLIER if its counterclaim is undisputed or has been legally established.
8.7.2 The CUSTOMER shall only be entitled to assert a right of retention insofar as its counterclaim is based on the same contract, is undisputed or has been determined to be res judicata.
8.8.1 The CUSTOMER shall be in default if it does not make payment within 14 days at the latest of the due date of an invoice or equivalent payment schedule. If the CUSTOMER defaults on payment, the SUPPLIER shall be entitled to request the payment of default interest at the statutoryrate. The right to claim further damages due to default remains reserved.
8.8.2 If the CUSTOMER defaults on the payment of fees, the SUPPLIER shall be entitled to withdraw from the contract or to terminate the contract for exceptional reasons and/or to claim damages for default after the fruitless expiry of a grace period set by the SUPPLIER.
8.8.3 The damages to be paid by the CUSTOMER shall amount to 80% of the agreed minimum turnover or 80% of the agreed monthly basic charges at the time of termination until the agreed end of the contract term. The CUSTOMER shall be entitled to prove that the damage is lower.
8.8.4 The SUPPLIER shall be entitled to switch billing to prepayment if the CUSTOMER repeatedly defaults on payment or if there is reason to fear that the CUSTOMER will not pay on time due to other circumstances, in particular the threat of insolvency.
8.8.5 The authority of the SUPPLIER to block publicly accessible telephone services at the CUSTOMER shall be governed by the statutory provisions, in particular § 45k TKG.
8.8.6 Further statutory rights of the SUPPLIER, in particular to refuse to provide services other than publicly available telephone services in the event of a service disruption (e.g. by blocking or withholding), shall remain unaffected. The SUPPLIER shall be entitled to block or withhold payment in particular,
if the CUSTOMER is in default of payment to a not insignificant extent,
if the CUSTOMER violates its obligations to cooperate and the SUPPLIER cannot reasonably be expected to continue providing the service as a result,
if there is good cause for termination without notice,
if there is a particular increase in the volume of calls and the amount of the payment receivable and facts justify the assumption that the CUSTOMER will object to this payment receivable.
8.8.7 The CUSTOMER shall remain obligated to pay the agreed fee even in the event of a justified block or service withholding. In the event of a justified disconnection, the SUPPLIER shall also be entitled to charge the CUSTOMER a flat-rate reimbursement of expenses for the disconnection and reconnection. The amount of the lump sum shall be determined by the respective product-specific price list. The CUSTOMER shall be entitled to prove that no expenses were incurred or that the expenses were lower.
9.1.1 The entire intellectual property of the CUSTOMER existing at the time a performance certificate becomes effective, as well as its adaptations, modifications and further developments by the SUPPLIER, shall be for the exclusive use and exploitation by the CUSTOMER.
9.1.2 The CUSTOMER hereby grants the SUPPLIER a non-exclusive, non-transferable right to use the CUSTOMER’s intellectual property during the term of the respective performance certificate, insofar as this is necessary 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 thereof, shall only be permitted to the extent that this is necessary for the provision of the services which are the subject matter of the contract. The granting of sublicences or the use by third parties shall be excluded - subject to an individual agreement to be reached on a case-by-case basis.
9.2.1 Unless otherwise agreed in individual cases, the entire intellectual property of the SUPPLIER existing at the time of the conclusion of a performance certificate as well as adaptations, modifications and further developments of the intellectual property of the SUPPLIER existing at the time of the conclusion of a performance certificate shall remain the property of the SUPPLIER during the term of the contract.
9.2.2 The SUPPLIER grants the CUSTOMER a simple, non-transferable right, limited in time to the duration of the contract, to use the SUPPLIER’s intellectual property to the extent necessary for the use of the services covered by the contract. The production of copies of the SUPPLIER’s intellectual property, as well as the processing or modification thereof, shall only be permitted to the extent that this is absolutely necessary for the usage of the services which are the subject matter of the contract.
Unless otherwise agreed, all documents are and shall remain the property of the contracting party issuing them and may not be reproduced in whole or in part without the express written consent of the issuing contracting party.
The SUPPLIER shall 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 inaccordance with the relevant statutory provisions.
10.2.1 The SUPPLIER shall collect, process and use the data provided by the CUSTOMER for the purpose of providing the contractual services on behalf of the CUSTOMER by way of instruction-bound order processing (Art. 28 GDPR).
10.2.2 The CUSTOMER shall retain full control over the data to be collected, processed and used by the SUPPLIER for the CUSTOMER. The CUSTOMER is the "data controller". In the relationship between the contracting parties, all data collected, processed or used by the SUPPLIER for the CUSTOMER shall be the exclusive property of the CUSTOMER; the SUPPLIER shall have no right of retention.
10.2.3 The SUPPLIER shall comply with the CUSTOMER’s instructions regarding compliance with the provisions of the GDPR or other relevant data protection regulations. The SUPPLIER shall collect, process and use the data received from the CUSTOMER during the provision of services exclusively inaccordance with the CUSTOMER’s instructions. If the SUPPLIER is of the opinion that the execution of such instructions could lead to a violation of data protection provisions, it shall be obligated to notify the CUSTOMER thereof in writing without delay.
10.2.4 The type of personal data collected, processed and used for the CUSTOMER and the purposes for which the SUPPLIER may process and use such personal data shall be specified in the performance certificates.
10.2.5 Further details shall be regulated by a separate order processing contract to be concluded between the parties.
11.1.1 The contracting parties must treat confidentially all confidential information that one contracting party communicates to the other contracting party or receives from the other party and must use it exclusively for the purpose of provision of the service in accordance with the relevant performance certificate. They shall protect confidential information against unauthorised access and shall treat it with the same care with which they would treat their own similarly confidential information, but at least with the diligence of a prudent businessman.
11.1.2 Confidential information shall not be disclosed by the receiving contracting party to any third party without the prior written consent of the other contracting party, unless
(a) this is required by mandatory applicable legal framework or judicial or regulatory injunction and the receiving contracting party has promptly notified the other contracting party in writing of the respective obligation, or
(b) the confidential information is disclosed to the receiving contracting party’s consultants in connection with the interpretation or execution of the contract documents or any dispute arising therefrom and the consultant 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 deleted by the respective contracting party. The obligation shall also apply to any other documents or data created or otherwise generated on the basis of the aforementioned documents or data. The contractual partners shall confirm to each other in writing within thirty (30) calendar days after the termination of a performance certificate that the above obligations have been fulfilled.
For each case of violation 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. The invocation of a continuous violation of the same offence is excluded. In the event of a continuous violation, the contractual penalty shall be due for each commenced month of the violation. Further claims for performance and damages shall remain unaffected by the demand for payment of the contractual penalty.
The provisions of this obligation shall continue to apply until three years after the termination of the contract.
The contracting parties shall be liable to each other in accordance with the general statutory provisions, unless the following provisions provide otherwise. The provisions of this Section 11 shall apply to all claims for damages, regardless of the legal grounds, unless expressly excluded elsewhere in the contract.
12.2.1 The SUPPLIER shall be liable for damages within the scope of the statutory provisions in accordance with these Terms and Conditions, insofar as the cause of the damage is based on intent or gross negligence. The SUPPLIER shall be liable for a slightly negligent breach of material contractual obligations (obligations, for which the fulfilment is necessary for the proper execution of the contract and for which the contractual partner relies and may rely on the fulfilment) only to the extent of the foreseeable damage typical for the contract. Otherwise, liability for negligence is excluded.
12.2.2 The limitation of liability according to 12.2.1 shall not apply in case of injury to life, body and health, in the case of fraudulently concealed defects or a warranty assumed by the SUPPLIER. Liability under the product liability law shall also remain unaffected.
12.2.3 The SUPPLIER shall not be liable for damages resulting from 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.
12.2.4 The SUPPLIER shall not be liable for the loss of data and/or programs to the extent that the damage is due to the CUSTOMER’s failure to perform regular data backups and thereby ensure that lost data can be restored with reasonable effort.
12.2.5 The CUSTOMER is not entitled to derive any claim for damages against the SUPPLIER from the loss of the possibility of use during necessary maintenance work, unless damage was caused by the SUPPLIER intentionally or through gross negligence.
12.2.6 Insofar as an obligation exists on the part of the SUPPLIER of publicly accessible telecommunications services to compensate a CUSTOMER for pecuniary loss and it is not based on intent, such liability shall be limited to a maximum of EUR 12,500. If the liability for damages arises from a uniform act or a uniform event causing damage to several CUSTOMERS and this is not based on intent, the liability for damages shall be limited to a maximum of EUR 10 million in total, notwithstanding the limitation in sentence 1. If the compensation payable to several injured parties on account of the same event exceeds the maximum limit, the compensation shall be reduced in proportion to the ratio of the sum of all claims for compensation to the maximum limit. The limitation of liability according to sentences 1 to 3 shall not apply to claims for compensation for damage caused by delay in the payment of damages.
12.2.7 The SUPPLIER shall only be liable for damage-causing events or disruptions (including failure to make 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, to the extent that the SUPPLIER is entitled to claims for damages against the other providers and third parties. The SUPPLIER may fulfil its obligations to the CUSTOMER by assigning these claims for damages. Any further liability of the SUPPLIER is excluded in these cases. This does not apply insofar as the events or disruptions causing the damage were culpably caused by the SUPPLIER or its agents or vicarious agents.
12.2.8 If the SUPPLIER’s liability is excluded or limited, this shall also apply to the personal liability of its employees, representatives or vicarious agents.
13.1 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 expected impact on its contractual obligations, in particular on the provision of the contractual services.
13.2 The contracting party affected by an event of force majeure shall be released from the performance of its contractual obligations for the duration of the event of force majeure, provided that it has complied with its duty to inform in accordance with clause 12.1.1 above.
13.3 The SUPPLIER shall be entitled to modify services (e.g. in the case of software updates or upgrades) or to temporarily restrict or discontinue services if this is necessary due to a judicial decision or an official measure, for reasons of public safety, for the security of network operations, to maintain network integrity, for the interoperability of the services, to ensure data protection, to prevent unlawful or improper use or to improve performance.
13.4 The same shall apply to service restrictions or discontinuations that occur due to necessary maintenance, installation and conversion work. The SUPPLIER shall inform the CUSTOMER of measures of the aforementioned kind as well as of necessary construction measures and coordinate these with the CUSTOMER.
14.1 Unless otherwise agreed in individual cases, the performance certificates shall enter into force on the first day of each calendar month after all conditions precedent have been fulfilled. The individual performance certificates shall 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 before the end of the agreed term.
14.2.1 The right to terminate for good cause shall remain unaffected.
14.2.2 Good cause entitling the SUPPLIER to extraordinary termination shall exist in particular if
the CUSTOMER is in default of payment of a not insignificant amount of the fees owed for two consecutive months, or of an amount equal to the average fees owed for two months in a period longer than two months,
a significant deterioration in the financial circumstances of the CUSTOMER, or the intrinsic value of a form of collateral occurs or threatens to occur and thereby the fulfilment of a liability to the SUPPLIER – even with the liquidation of a form of collateral existing for this purpose – is jeopardised as a result,
an application to open insolvency proceedings against the CUSTOMER’s assets is rejected or discontinued due to lack of assets, proceedings for its dissolution, liquidation or winding-up are initiated,
the CUSTOMER ceases its business activities or becomes insolvent,
the CUSTOMER irreversibly prevents the complete set-up and production of the contractual service through its culpable action or omission in breach of duty, or makes it so difficult for a period of more than one day that adherence to the contract is unreasonable;
the CUSTOMER otherwise seriously breaches its contractual duties, in particular its duties to cooperate and its obligations,
the CUSTOMER behaves in any other way contrary to the contract; this includes in particular all violations of criminal law resulting from the customer relationship, as well as the improper use of the contractual services, including the impairment of the quality and function of the service.
14.2.3 Claims for damages shall remain unaffected by the right to terminate for good cause. If the SUPPLIER terminates the contractual relationship without notice for good cause, for which the CUSTOMER is responsible, the CUSTOMER is obliged to compensate the SUPPLIER for the damage incurred. The SUPPLIER may claim damages in the amount of the fixed monthly base prices, or themonthly minimum fee, in the case of tariffs without a fixed base price which would have been payable by the CUSTOMER from the time the extraordinary termination took effect until the next ordinary termination date of the individual performance certificate. The CUSTOMER shall be entitled to prove that the SUPPLIER has incurred little or no damage as a result of the termination.
14.2.4 The provisions of Clause 11 shall apply.
15.1 All claims against the SUPPLIER shall lapse within one year of the other contracting party becoming aware of them. Liability claims arising from damage caused intentionally or through gross negligence are excluded.
15.2 The warranty claims shall lapse within one year from the provision of the service.
15.3 Within the scope of application of the TKG and other special laws, their statute of limitations shall take precedence insofar as they are mandatory.
Unless otherwise agreed, the SUPPLIER shall be entitled to publish and use the name of the CUSTOMER and a description of the contractualservices in pressreleases and other marketing materials.
The contracting parties undertake to refrain from actively soliciting employees of the other contracting party themselves or through third parties during the term of the contract, as well as within 12 months after termination of the contract.
Unless otherwise agreed in the individual contractual documents, all notices shall be addressed to the contact persons of the contracting parties. All notices, in particular a termination, must be in writing.
Changes or additions to the contract or the other contractual documents must be made in writing and signed by the authorised contact persons of both contracting parties in order to be effective. This also applies to any waiver of the written form requirement. In the event of deviations from this terms & conditions, the provision of the condition from which deviation is to be made shall be explicitly stated in the respective contract.
Unless otherwise provided by law, e-mail does not correspond to the written form.
Should individual provisions of this terms & conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of this terms & conditions. In place of a void or impracticable provision, a regulation shall be inserted that most closely approximates the business purpose of the void or impracticable provision. The same shall apply in the event that the contracting parties subsequently determine that the conditions is incomplete.
This terms & conditions and the agreements made under it are subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CSIG) is excluded.
The exclusive place of jurisdiction is the registered office of the SUPPLIER, provided that 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 the conclusion of the contract and provided that the law does not stipulate otherwise.
[Last update: 01.06.2021]