TERMS AND CONDITIONS
-AV Bitkom-

1. General information

The following notes provide a simple overview of what happens to your personal data when you visit our website. Personal data is any data that can be used to personally identify you. Detailed information on data protection can be found in our privacy policy listed below this text.

1.2. In principle, all invoices must be paid without deduction no later than 14 calendar days after receipt by a free paying agent.

1.3. The customer can only offset or withhold payments due to deficiencies insofar as he is entitled to actual payment claims due to material or legal deficiencies in the performance. Due to other claims for deficiencies, the customer can only withhold payments in part, taking into account the nature of the defect. Section 4.1 applies accordingly. The customer has no right of retention if his claim for defects is time-barred. Otherwise, the customer can only offset undisputed or legally established claims or exercise a withholding.

1.4. The provider reserves ownership and rights to the services until full payment of the compensation owed, justified deductions in accordance with Section 1.3. Sentence 2 is taken into account. Furthermore, the provider reserves ownership until all of its claims arising from the business relationship with the customer have been met.

The provider is entitled to prohibit the customer from continuing to use the services for the duration of a delay in payment. The provider can only enforce this right for a reasonable period of time, usually a maximum of 6 months. This does not constitute a withdrawal from the contract. Section 449 (2) BGB remains unaffected.

If the customer or his customer returns the services, the receipt of the services does not constitute a withdrawal by the provider unless he has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the provider.

The customer may neither pledge nor pledge objects subject to ownership or reservation of rights. The customer is only allowed to resell as a reseller in the usual course of business under the condition that the customer has effectively assigned to the provider his claims against his customer in connection with the resale and the customer transfers ownership to a buyer subject to payment. By concluding the contract, the customer assigns his future claims in connection with such sales against his customers to the provider, who hereby accepts this assignment.

Insofar as the value of the provider's security rights exceeds the amount of the secured claims by more than 20%, the provider will release a corresponding share of the security rights at the customer's request.

1.5. In the event of a permitted transfer of rights to use deliveries and services, the customer is obliged to impose the contractually agreed restrictions on the recipient.

1.6. If the customer fails to settle a claim in whole or in part by the contractual payment date, the provider may revoke agreed payment terms for all claims. The provider is also entitled to provide further services only against payment in advance or against security provided by a financial institution or credit insurer approved in the European Union. Prepayment must include the respective billing period or — in the case of one-off services — their remuneration.

1.7. If the customer is economically unable to fulfill its obligations towards the provider, the provider may terminate existing exchange contracts with the customer without notice by resignation, perpetual obligation settlement, even if the customer filed for insolvency. Section 321 BGB and Section 112 InsO remain unaffected. The customer will inform the provider in writing at an early stage of an impending payment invalidity.

1.8. Fixed performance dates should only be agreed in documented form. The agreement of a fixed performance date is subject to the proviso that the provider receives the services of its respective upstream suppliers in good time and in accordance with the contract.

2. Cooperation, duties to cooperate, confidentiality

2.1. The customer and provider each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider takes place via these contact persons. The contact persons must immediately bring about all decisions relating to the execution of the contract. Decisions must be documented in a binding manner.

2.2. The customer is obliged to support the provider as far as necessary and to create all conditions necessary for the proper execution of the order within its operational sphere. In particular, the necessary information will be provided and, if possible, enable remote access to the customer system. If remote access is not possible for security reasons or other reasons, the deadlines affected by this will be extended accordingly; the contract partners will agree on an appropriate arrangement for further effects. The customer also ensures that expert personnel are available to support the provider.

Insofar as it is agreed in the contract that services can be provided on site at the customer's site, the customer will provide sufficient jobs and work equipment free of charge at the provider's request.

2.3. Unless otherwise agreed, the customer will ensure proper data backup and failure prevention for data and components (such as hardware, software) that is appropriate to their type and significance.

2.4. The customer must immediately report deficiencies in writing in comprehensible and detailed form, providing all information relevant for the detection and analysis of defects. In particular, the work steps that led to the occurrence of the defect, the form of appearance and the effects of the defect must be specified. Unless otherwise agreed, the provider's corresponding forms and procedures are used for this purpose.

2.5. The customer will provide the provider with appropriate support upon request in examining and asserting claims against other parties in connection with the provision of services. This applies in particular to recourse claims made by the provider against upstream suppliers.

2.6. The contractual partners are obliged to maintain secrecy about trade secrets and other information identified as confidential (e.g. in documents, documents, databases) that become known in connection with the execution of the contract and neither to use nor disclose them beyond the purpose of the contract without the written consent of the other contractual partner.

The respective receiving contract partner is obliged to take appropriate secrecy measures for trade secrets and information described as confidential. The contractual partners are not entitled to obtain trade secrets from the other contractual partner by observing, examining, dismantling or testing the subject matter of the contract. The same applies to other information or objects received during contract execution.

The transfer of trade secrets and other information described as confidential to persons who are not involved in the conclusion, execution or execution of the contract may only take place with the written consent of the other contractual partner.

Unless otherwise agreed, the obligation to maintain confidentiality for other information marked as confidential expires five years after the respective information has become known, but not before their termination in the case of long-term obligations. Trade secrets must be kept secret for an indefinite period of time.

The contractual partners will also impose these obligations on their employees and any third parties employed.

2.7. The contractual partners are aware that electronic and unencrypted communication (e.g. by email) involves security risks. In this type of communication, they will therefore not make any claims based on the lack of encryption, unless encryption has been agreed beforehand.

3. Disruptions in the provision of services

3.1. If a cause for which the provider is not responsible, including a strike or lockout, affects compliance (“disruption”), the dates are postponed for the duration of the disruption, including, if necessary, an appropriate restart period. A contractual partner must immediately inform the other contractual partner of the cause of a disturbance that has occurred in its area and the duration of the postponement.

3.2. If the expenses increase due to a malfunction, the provider can also demand payment of the additional expenses, unless the customer is not responsible for the fault and the cause of the fault lies outside its area of responsibility.

3.3. If the customer can withdraw from the contract due to improper performance by the provider and/or claim compensation instead of the service, the customer will, at the request of the provider, explain in writing within a reasonable period of time whether he asserts these rights or wishes to continue to provide the service. In the event of a withdrawal, the customer must reimburse the provider for the value of previous usage options; the same applies to worsening of consistent use.

If the provider is in default with the provision of services, the customer's damage and reimbursement of expenses due to the delay for each completed week of delay is limited to 0.5% of the price for the part of the contractual service that cannot be used due to the delay. The default liability is limited to a maximum of 5% of the remuneration for all contractual services affected by the default; in the case of continuing debt relationships, based on the remuneration for the respective affected benefits for the full calendar year. In addition and priority, a percentage of the agreed remuneration agreed upon conclusion of the contract shall apply. This does not apply if a delay is based on gross negligence or intent on the part of the provider.

3.4. In the event of a delay in performance, the customer has the right of withdrawal within the framework of legal provisions only if the provider is responsible for the delay. If, as a result of the delay, the customer is entitled to claim damages or reimbursement of expenses in lieu of performance, he is entitled to claim 1% of the price for the part of the contractual service that cannot be used as a result of the delay, but a maximum of 10% of this price in total; in the case of continuing debt relationships based on the remuneration for the respective parties concerned Benefits for the full calendar year. In addition and priority, a percentage of the agreed remuneration agreed upon conclusion of the contract shall apply.

4. Defects and reimbursement of expenses

4.1. The provider guarantees the contractually owed quality of the services. There are no claims due to material defects for an insignificant deviation of the provider's services from the contractually agreed quality.

Claims due to deficiencies also do not exist in the event of excessive or improper use, natural wear and failure of components of the system environment. The same applies to software errors that are not reproducible or otherwise verifiable by the customer. This also applies to damage due to particular external influences that are not required under the contract. Claims due to defects also do not exist in the event of subsequent alterations or repairs by the customer or third parties, unless this does not make the analysis and elimination of a material defect difficult.

Section 6 shall apply additionally to compensation and claims for reimbursement of expenses.

4.2. The limitation period for claims for material defects is one year from the start of the statutory limitation period. The statutory deadlines for recourse in accordance with Section 478 BGB remain unaffected.

The same applies insofar as the Act in accordance with Section 438 Paragraph 1 No. 2 or Section 634a Paragraph 1 No. 2 BGB prescribes longer time limits, in the event of an intentional or grossly negligent breach of duty by the provider, in cases of fraudulent concealment of a defect and in cases of injury to life, body or health, and to claims under the Product Liability Act.

The processing of a material defect report from the customer by the provider will only result in the suspension of the limitation period, provided that the legal requirements for this are met. This does not mean a new start of the statute of limitations.

Subsequent performance (new delivery or repair) can only have an effect on the limitation of the subsequent performance of a defect.

4.3. Claims for recourse to contracts for digital products in accordance with Section 327u BGB remain unaffected by clauses 4.1 and 4.2.

If a customer makes any claim against the customer that may result in a recourse claim, the customer will immediately inform the provider of the claim made and the further information necessary and useful for its assessment. The customer will give the provider the opportunity to satisfy the claim made by the customer's customer, unless this is unreasonable for the customer. The customer and the provider will coordinate and work together with the goal of satisfying a legitimate claim of the customer's customer as cost-effectively and as cost-effectively as possible.

4.4. The provider may demand compensation for its expenses, insofar as

a) he takes action on the basis of a report without a defect, unless the customer was unable to identify, with reasonable effort, that there was no defect, or

b) a reported fault is not reproducible or is otherwise demonstrable as a defect by the customer, or

c) additional expenses are incurred due to improper performance of the customer's obligations (see also sections 2.2, 2.3, 2.4 and 5.2).

5. legal deficiencies

5.1. The provider is only liable for violations of third-party rights as a result of its performance if the service contract and in particular in the contractually agreed, otherwise in the intended operating environment, is used in a modified manner.

The provider is only liable for violations of third-party rights within the European Union and the European Economic Area and at the place of contractual use of the service. Section 4.1 sentence 1 applies mutatis mutandis.

5.2. If a third party claims to the customer that a service provided by the provider violates his rights, the customer immediately notifies the provider. The provider and, if applicable, its sub-suppliers are entitled, but not obliged, to ward off the claims made at their own expense, to the extent permitted.

The customer is not entitled to accept third-party claims before he has given the provider reasonable opportunity to defend the rights of third parties in any other way.

5.3. If a service provided by the provider infringes the rights of third parties, the provider will, at its own discretion and at its own expense

a) provide the customer with the right to use the service, or

b) make the service free of infringement, or

c) cancel the service with reimbursement of the remuneration paid by the customer (minus an appropriate use allowance) if the provider cannot provide any other remedy with appropriate immigration goals.

The interests of the customer are adequately taken into account.

5.4. Customer claims due to legal errors expire in accordance with Section 4.2. Section 6 applies in addition to compensation and claims for reimbursement of expenses by the customer, and section 4.3 applies accordingly for additional expenses of the provider.

6. General liability of the provider

6.1. The provider is always liable to the customer

a) for damage caused intentionally or grossly negligently by him and his legal representatives or vicarious agents,

b) in accordance with the Product Liability Act and

c) for damage resulting from injury to life, body or health for which the provider, his legal representative or vicarious agent are responsible.

6.2. The provider is not liable in the event of slight negligence, except insofar as it has breached an essential contractual obligation, the fulfilment of which enables the proper execution of the contract in the first place or whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the customer may regularly rely.

In the case of damage to property and assets, this liability is limited to the contract-typical and foreseeable damage. This also applies to lost profits and missed savings. Liability for other subsequent damages is excluded.

For an individual claim, liability is limited to the contract value, in the case of ongoing compensation, to the amount of compensation per contract year, but not to less than €50,000. Section 4.2 applies mutatis mutandis to the limitation period. When concluding the contract, the contracting parties may agree on further liability, usually in return for a separate payment, in writing. Priority is given to an individually agreed liability amount. Liability in accordance with Section 6.1 remains unaffected by this paragraph.

In addition and priority, the liability of the provider due to slight negligence under the respective contract and its execution for damage and reimbursement of expenses, irrespective of the legal basis, is limited to the percentage of the remuneration agreed upon conclusion of the contract. Liability in accordance with section 6.1 b) remains unaffected by this paragraph.

6.3. Under a warranty statement, the provider is only liable for damages if this was expressly accepted in the warranty. In the event of slight negligence, this liability is subject to the restrictions set out in Section 6.2.

6.4. If data or components (such as hardware, software) need to be restored, the provider is only liable for the effort required to restore data with proper data backup and failure prevention by the customer. In the event of slight negligence on the part of the provider, this liability only applies if the customer has carried out data backup and failure prevention appropriate to the type of data and components prior to the fault. This does not apply insofar as this is agreed as a service provided by the provider.

6.5. Sections 6.1 to 6.4 apply mutatis mutandis to claims for reimbursement of expenses and other liability claims made by the customer against the provider. Sections 3.3 and 3.4 remain unaffected.

7. Data protection

The customer will conclude agreements with the provider that are necessary under data protection law for the handling of personal data.

8. Miscellaneous

8.1. The customer is responsible for complying with import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or service, the customer bears any customs duties, fees and other charges. The customer will handle legal or regulatory proceedings in connection with cross-border deliveries or services on his own responsibility, unless otherwise expressly agreed.

8.2. German law applies. The application of UN sales law is excluded.

8.3. The provider provides its services on the basis of its general terms and conditions (GTC). The customer's terms and conditions do not apply, even if the provider has not expressly objected to them.

Acceptance of the services by the customer is considered acceptance of the provider's terms and conditions with waiver of the customer's terms and conditions.

Other conditions are only binding if the provider has accepted them in writing; in addition, the provider's terms and conditions apply.

8.4. Amendments and additions to this contract should only be agreed in writing. Insofar as it has been agreed in writing (e.g. for cancellations, resignations), text form is not sufficient.

8.5. The place of jurisdiction over a merchant, a legal entity under public law or a special public asset is the registered office of the provider. The provider can also sue the customer for their registered office.