1.1 Discon GmbH (hereinafter referred to as “provider”) provides all services exclusively on the basis of these general terms and conditions (GTC). of the customer do not apply, even if the provider has not expressly objected.
1.2 These terms and conditions also apply if the provider carries out the service to the customer without reservation in the knowledge of conflicting or deviating conditions of the customer. In these cases, the acceptance of the service by the customer is deemed to be acceptance of these terms and conditions with the simultaneous and hereby accepted waiver of the validity of his own terms and conditions.
1.3 Offers are always non-binding. A contract is only concluded with a written order confirmation from the provider. If the service is performed by the provider without the customer having received an order confirmation beforehand, the contract is concluded upon delivery or when the service begins.
2. Subject matter of the contract, services, rights of use
2.1 The provider rents hardware, analysis software and, if applicable, usage rights for services from the cloud to the customer for the term of this contract. The customer receives an operating manual for the hardware supplied as well as documentation for the software. Hardware, software and usage rights are rented out as a uniform system, which is hereinafter referred to as the “rental item”. The rental object is provided for the contractual use specified in the rental agreement or the service specification or in the order confirmation. Unless otherwise agreed in individual cases, the nature, scope, conditions of use and system environment of the rental item are also derived from the respective rental contract or service specification or the order confirmation, in each case with the corresponding product description and, if necessary, from the operating manual and the documentation, in this order.
2.2 The design of the rental object is based on the technical and functional requirements of the customer communicated by the customer. The rental contract or service specification particularly reflects the agreed performance criteria. Among other things, it also contains the criteria to be agreed for determining operational readiness in accordance with Section 6.
2.3 The provider delivers the leased item referred to in section 2.1 for a separate charge to the installation location specified in the service specification. The provider also takes on the installation of the rented property for a separate charge and ensures operational readiness. The delivery of the rental object, the establishment of operational readiness and the implementation of the operational readiness check are carried out at the times and criteria specified in the rental contract or service specification. Further services of the provider are to be commissioned separately and paid for separately.
2.4 Adjustments or changes to the software and the creation of interfaces to third-party programs by the provider are only owed insofar as these are necessary for the maintenance or repair of the rental object or to ensure the contractual use defined in the rental agreement or service specification. The provider is entitled to provide the customer with improved new versions of the rented software – hereinafter referred to as “new versions” – with at least the same service content / scope as that agreed upon when the contract was concluded. For these new versions, the regulations made between the parties apply accordingly. After a reasonable period of time, which does not exceed three months, the customer is obliged to only use these new versions, unless this is unreasonable for him.
2.5 The provider only provides any analysis, planning and related consulting services for the rental contract or service specification on the basis of a separate contract.
2.6 The rental property is provided for the exclusive use of the customer. The rental object may only be used for the purposes specified in the rental agreement or the service specification. Without the prior consent of the provider, the customer is not entitled to allow a third party to use the rental object, including the software provided under this contract, in particular to rent or lend it. Use by the customer’s employees is permitted within the scope of the contractual use.
2.7 Unless otherwise agreed, the provider grants the customer the simple, non-exclusive right to use the software during the rental period for his own internal purposes within the scope of the contractually stipulated purpose. If the delivery of the hardware includes software that is necessary for its functionality, the customer receives only one right to use this hardware. Otherwise, all rights remain with the provider.
2.8 The provider is entitled to take appropriate technical measures to protect against non-contractual use. The contractual use of the services must not be impaired.
2.9 The provider can revoke the customer’s right of use or terminate the entire contract if the customer violates any restrictions on use or other regulations to protect against unauthorized use. The revocation or the termination takes place by written declaration; Section 13.1 sentence 3 applies accordingly. The provider has to give the customer a grace period for remedial action before the cancellation or termination. In the case of repetition and in special circumstances that justify immediate revocation or termination without notice, taking into account the interests of both parties, the provider can express the revocation or termination without setting a deadline. The sole revocation of the right of use does not also apply as a termination of the contract. After the revocation or termination, the customer must confirm the cessation of use to the provider in writing within seven calendar days. The customer has the right to be granted the right of use again after he has proven that he has stopped the use in violation of the contract and has prevented future use in violation of the contract.
3.1 The rent to be paid by the customer results from the rental contract or service specification.
3.2 Unless otherwise agreed in individual cases, the prices are net plus the applicable statutory sales tax.
3.3 The rent includes the remuneration for the provision of the rented property as well as for its maintenance and repair in the contractual condition, which corresponds to the time at which the operational readiness was determined. The delivery of consumables is to be paid for separately.
3.4 Unless otherwise agreed in the rental contract or service specification, the rent for the current contract / calendar year is due in advance within ten calendar days of the first contract / calendar month of the respective accounting year without any deduction. If the customer has given a direct debit authorization, the provider will collect the due claim every quarter within ten calendar days of the first month of each quarter. The obligation to pay the rent begins with the establishment of operational readiness by the provider in accordance with Section 6 or the start of productive use of the rental property by the customer, whichever is earlier. If the contract begins within a billing period, the remuneration will be invoiced pro rata temporis.
3.5 Payment of the rent is to be made to one of the provider’s accounts specified on the invoice. A payment is only considered to have been made when it is credited to one of the provider’s bank accounts.
3.6 If the customer does not settle a claim in whole or in part by the due date in accordance with the contract, the provider is entitled to revoke agreements made on payment terms for all claims open at this point in time and to make them due immediately. The provider is also entitled to provide further services only against prepayment or a security in the form of a performance guarantee from a credit institute or credit insurer approved in the European Union.
3.7 If the customer is economically unable to fulfill his obligations towards the provider, or if the customer files for insolvency, the provider can terminate the contract without notice. § 321 BGB and § 112 InsO remain unaffected. The customer will inform the provider in good time of an impending insolvency.
3.8 The provider is entitled to charge interest of 5% when due. In the event of default, the provider is entitled to demand interest of 9 percentage points above the base rate. The right of the provider to claim higher damage remains unaffected.
3.9 The customer can only offset or withhold payments for defects if he is actually entitled to claims for material and / or legal defects. Section 8.2 applies accordingly. The customer has no right of retention if his claim has expired. The exercise of a right of retention by the customer with a reciprocal right that is not based on a right from the contract on which these General Terms and Conditions are based is excluded.
3.10 The provider will adjust the fee to be paid on the basis of the contract at its reasonable discretion to the development of the costs, which are decisive for the price calculation. A price increase is possible and a price reduction is to be made if and to the extent that, for example, the rental, energy, personnel and staffing costs, right of use costs incurred for maintaining the subject of the contract increase or decrease. Increases in one type of cost, e.g. energy costs, may only be used for a price increase to the extent that there is no compensation for any declining costs in other areas, such as rental costs. In the event of cost reductions, the provider must reduce the prices unless these cost reductions are fully or partially offset by increases in other areas. When exercising its reasonable discretion, the provider will choose the respective times of a price change in such a way that the cost reductions are not taken into account according to standards that are less favorable for the customer than the cost increases, i.e. cost reductions have at least the same effect on prices as cost increases. As soon as the annual remuneration increases by more than 5%, the customer is entitled to extraordinarily terminate the contract with a period of six weeks after receipt of the increase request at the time the increase takes effect.
3.11 The provider can demand a remuneration for the work carried out in excess of the amount specified in section 3.1, provided: – a reported defect is related to the use of the rental object in an unapproved environment or changes to the rental object made by the customer or third parties, – additional Expenses due to improper fulfillment of the customer’s obligations (see in particular point 5). Insofar as the provider is entitled to request remuneration for the work performed in excess of the remuneration set out in section 3.1, this will, unless otherwise agreed in writing between the parties, at the list prices applicable at the time the service is provided, as well as hourly, daily and Expense rates and billing sections of the provider are billed.
4. Dates and deadlines
4.1 Dates and deadlines are binding if they have been agreed as binding in writing by the provider and the customer in individual cases. Unless otherwise agreed, the period begins with the conclusion of the contract or with the dispatch of the order confirmation. The agreement of a fixed performance date is subject to the proviso that the provider in turn receives the deliveries and services necessary for him from his respective sub-suppliers on time and in accordance with the contract.
4.2 If the non-compliance with a certain performance time is due to events for which the provider is not responsible (including strike or lockout), the performance dates will be postponed by the duration of the disruption including an appropriate start-up phase.
4.3 If the provider is in default with the provision of services in whole or in part, the customer’s compensation for damages and expenses due to default is limited to 0.5% of the price for the part of the service that cannot be used due to the delay for each completed week . The liability for default is limited to 5% of the total price of the respective order. This does not apply if the delay is due to gross negligence or intent on the part of the provider.
4.4 In the event of a delay in performance, the customer only has a right of withdrawal within the framework of the statutory provisions if the provider is responsible for the delay. If the customer is entitled to claim damages or reimbursement of expenses instead of the service due to the delay, he is entitled to demand 1% of the price for each full week of the delay for the part of the service that cannot be used due to the delay, but in total a maximum of 10% of the total price of the respective contract value. Section 4.3 sentence 3 applies accordingly.
5. Obligations of the customer
5.1 The customer names the provider a contact person who can make binding decisions for the customer during the execution of the contract. He has to be available for the exchange of necessary information and to participate in the decisions necessary for the execution of the contract. Any decisions required by the customer must be brought about by the contact person immediately and documented in writing by the parties immediately afterwards.
5.2 The customer is obliged to support the provider as far as necessary and to create all the prerequisites necessary for proper contract processing in his operating sphere, in particular to enable remote access to the system and to make available analysis material available. In particular, before delivery of the rental object, he must create the spatial and technical prerequisites communicated to him in good time by the provider, which are necessary for the installation and making the rental object operational.
5.3 The customer will inform the provider immediately in writing (section 13.1, sentence 3) of changes in the operational environment. The customer will also inform the provider immediately about disruptions resulting from his area of responsibility (e.g. of the network operator, access provider) and their expected duration. Unless otherwise agreed, the customer will ensure proper data backup and adequate failure prevention for the technical components (hardware / software) it has. If the effort of the provider increases, he can also, without prejudice to other claims, demand remuneration for the additional effort he has made, unless the customer is not responsible for the disruption in the event of a disruption and the cause lies outside his area of responsibility. The calculation of the remuneration for the additional expenditure is based on the list prices as well as the hourly, daily and expense rates and billing sections of the provider applicable at the time the service is provided. ^
5.4 The customer is obliged to treat the rental property with care and to protect it from damage. He will ensure the correct use and proper operation by adequately qualified personnel. The customer will follow the maintenance instructions, the care instructions and the operating instructions of the provider, in particular the information contained in the operating manual and the documentation, within the framework of what is reasonable for him. Identifications, in particular signs, serial numbers, inscriptions, copyright notices, trademarks or the like may not be removed, changed or made illegible.
5.5 The customer undertakes to take out an (electronics) insurance corresponding to the new value of the rental object at his own expense in order to cover the risks for the rental object in his home for the duration of the agreed term. The customer must provide the provider with appropriate evidence by the time the rental property is delivered. If proof of risk coverage for the rental property is not provided, the provider is entitled to take out appropriate (electronics) insurance at the customer’s expense.
5.6 The customer must report any defects in writing in a comprehensible form, stating all the information required for defect detection and analysis. In particular, the work steps that led to the occurrence of the defect, the frequency of appearance and the effects of the defect must be specified. Unless otherwise agreed, he will use the respective forms and procedures of the provider. The customer must also support the provider in eliminating defects.
5.7 The customer allows the provider’s employees and agents free access to the leased property for maintenance and repair work within the provider’s usual business hours. The legitimate security interests of the customer must be safeguarded
6. Determination of operational readiness
After the provider has made the rental item available to the customer, the provider and the customer will jointly determine that it is ready for operation. For this purpose, the provider and the customer may use the criteria agreed in the rental contract or the service specification (section 2.2) to ensure that the rental property made available is in a contractual condition. As far as operational readiness is given, the customer will confirm this on a corresponding form from the provider.
7. Changes to the rental property / change of the installation site
7.1 The provider is entitled to make changes to the rented property, provided that these are used for maintenance. Measures for improvement may only be carried out if they are reasonable for the customer and the contractual use of the rental object is not impaired as a result. The provider will inform the customer about appropriate measures in advance. If the customer incurs expenses due to these measures, these must be reimbursed by the provider.
7.2 Changes and additions to the rental property by the customer require the prior consent of the provider. This applies in particular to add-ons or fixtures and the connection of the rental property with other devices, EDP systems or networks. Actions of the customer without consent with regard to the provided computer programs according to § 69d UrhG remain unaffected. When returning the rental item, the customer will restore the original condition at the request of the provider.
7.3 The installation of the rental object at a location other than that specified in the rental agreement requires the prior consent of the provider. The provider will only refuse his approval if there are important reasons that make implementation unreasonable for him. The provider can request that the transport and reinstallation be carried out by him or by qualified specialists appointed by him at market prices. The costs and follow-up costs associated with a change of location as well as any additional costs for maintenance and care that may arise as a result are borne by the customer.
8. Material defects
8.1 The provider undertakes towards the customer to keep the rented property for the duration of the rental period in a condition suitable for use in accordance with the contract and to carry out the necessary maintenance and repair work. This obligation only relates to the contractual condition of the rented property at the time when it is determined that it is operational.
8.2 Claims due to defects are excluded if the deviation from the contractual quality is due to improper use or the use of the rental object under non-agreed conditions of use or a non-agreed system environment. The same applies to such deviations that arise due to special external influences that are not contractually required.
8.3 The supplier’s no-fault liability in accordance with Section 536a, Paragraph 1 of the German Civil Code (BGB) for defects that were already present at the time the contract was concluded is excluded.
8.4 The customer must notify any rental defects in writing in a comprehensible and detailed form, stating the information required for defect detection and analysis. In particular, the work steps that led to the occurrence of the defect, the frequency of appearance and the effects of the defect must be specified. Unless otherwise agreed, he will use the relevant forms and procedures of the provider; Section 13.1 sentence 3 applies accordingly. In addition, the customer has to support the provider as far as necessary in eliminating defects. The customer will exercise any option he may be entitled to with regard to claims for defects within a reasonable period of time; this is generally measured at two weeks from the customer’s opportunity to take notice.
8.5 Defects will be remedied within the provider’s business hours through free rework or repair of the rental item. The provider must be given a reasonable period of time for this. With the customer’s consent, the provider can exchange the rental item or individual components of the rental item for the purpose of remedying the defect. The customer will not unreasonably withhold his consent to this.
8.6 A termination by the customer in accordance with Section 543, Paragraph 2, Clause 1, No. 1 of the German Civil Code (BGB) due to failure to use the services in accordance with the contract is only permitted if the provider has been given sufficient opportunity to remedy the defect and this has failed. A failure to remedy the defect can only be assumed if it is impossible, if it is refused by the provider or delayed in an unreasonable manner, if there are justified doubts about the chances of success or if for other reasons it is unreasonable for the customer.
8.7 The customer’s rights to a warranty for defects are excluded insofar as he makes changes to the rented property or has them made without the prior consent of the provider, unless the customer can prove that the changes have no unreasonable effects on the analysis and removal of the Have want. The customer’s rights due to defects remain unaffected, provided that the customer is entitled to make changes, in particular within the scope of exercising the right to carry out changes according to Section 536a, Paragraph 2 of the German Civil Code, and these have been carried out professionally and documented in a comprehensible manner.
8.8 The limitation period for material defects is one year from the start of the statutory limitation period. The statutory deadlines remain unaffected in the case of an intentional or grossly negligent breach of duty by the provider, in the case of fraudulent concealment of a defect, and in cases of injury to life, limb or health as well as for claims under the Product Liability Act.
8.9 The provider can demand reimbursement of his expenses insofar as he takes action on the basis of a report without a defect being present, unless the customer could not recognize with reasonable effort that there was no defect or additional effort due to improper fulfillment of the obligations of the customer in particular according to Sections 5.2 and 5.3
8.10 Clauses 10.1-10.4 apply in addition to claims for damages and reimbursement of expenses.
9. Defects in title
9.1 The provider shall only be liable to the customer for any infringement of third party rights as a result of his performance if the service is used by the customer in accordance with the contract, in particular in the contractually intended usage environment. Liability for the violation of third party rights is also limited to third party rights within the European Union and the European Economic Area as well as at the place of contractual use of the service. Section 8.2 sentence 1 applies accordingly.
9.2 If a third party asserts against the customer that a service by the provider violates his rights, the customer is obliged to notify the provider immediately. The provider is entitled, but not obliged, to fend off the asserted claims at his own expense, insofar as this is permissible.
9.3 If third party rights are violated by a service of the provider, the provider will at its own option and at its own expense: – provide the customer with the right to use the service or – make the service free of infringement. The interests of the customer are adequately taken into account.
9.4 The customer exercises his right to choose within a reasonable period of time. This usually amounts to two weeks.
9.5 Claims by the customer due to legal defects become statute-barred in accordance with Section 8.8. For claims for damages and reimbursement of expenses, paragraphs 10.1-10.4 also apply.
10.1 The provider is liable for damages – for damage caused intentionally or through gross negligence by him and his legal representatives or vicarious agents, – in accordance with the Product Liability Act and – for damage from injury to life, body or health that the provider, his statutory Representatives or vicarious agents have to represent.
10.2 The provider is liable in the event of slight negligence, insofar as he or his legal representatives or vicarious agents have violated an essential contractual obligation (so-called cardinal obligation), the fulfillment of which enables the proper execution of the contract in the first place or the violation of which jeopardizes the achievement of the purpose of the contract and its compliance (such as in the case of an obligation to provide a faultless service) the customer may regularly trust. Otherwise liability for slight negligence is excluded. Insofar as the provider is liable for slight negligence, liability for property damage and financial damage is limited to the foreseeable damage typical for the contract. Liability for other, remote consequential damages is excluded. For a single case of damage, liability per case of damage is limited to six times the monthly rent. This paragraph does not affect liability in accordance with Section 10.1.
10.3 Clause 8.8 applies accordingly to the statute of limitations.
10.4 In the case of the necessary restoration of data or technical components (hardware / software), the provider is only liable for the effort required by the customer to restore the data with proper data backup and appropriate failures in relation to the technical components. In the event of slight negligence on the part of the provider, this liability only applies if the customer has carried out proper data backups and appropriate precautions immediately before the incident. This does not apply if this has been agreed as a service of the provider.
10.5 Sections 10.1-10.4 apply accordingly to claims for reimbursement of expenses and other liability claims by the customer against the provider.
11. Contract period / end of the lease
11.1 The contract is concluded from the agreed date, initially for the duration of the agreed term. Ordinary termination on both sides is excluded during this minimum term. The contract can also be properly terminated with a period of three months, at the earliest at the end of the minimum term. If this does not happen, the contract is extended for another year, unless it has been properly terminated with three months’ notice to the end of the respective extension period. § 545 BGB does not apply.
11.2 The customer’s right of termination according to Clause 3.9 and Clause 8.6 as well as the right of each party to extraordinary termination for good cause remains unaffected.
11.3 Any notice of termination must be in writing to be effective; Section 13.1 sentence 3 applies accordingly.
12. Return of the rental object
12.1 Upon termination of the contractual relationship, the customer must return the rental object to the provider in full in a condition that corresponds to the contractual use. The obligation to return also includes the computer programs provided on the original data carriers, including operating / installation manuals and documentation. Any copies and downloads of the computer programs provided by the provider are to be completely and permanently deleted or destroyed. The customer is obliged to confirm the complete return and deletion in writing to the provider.
12.2 When the rented property is returned, a log is drawn up in which any existing damage and defects in the rented property are recorded. The customer has to reimburse the cost of restoration in the event of damage or defects for which he is responsible. 12.3 Unless otherwise agreed in the service specification, the customer bears the costs for dismantling, packaging and the return transport of the rental object.
13.1 Changes and additions to all contracts concluded between the parties should only be agreed in writing. Text form (126b BGB) is sufficient for this written form requirement. Insofar as a written form has been expressly agreed in the contract (e.g. for a contract change or withdrawal), text form is not sufficient. Oral agreements are only valid if they are confirmed in writing by the provider within seven days; a fax or an e-mail is sufficient for the written form requirement.
13.2 The provider and the customer are obliged to maintain secrecy about business and trade secrets as well as other information designated as confidential that becomes known in connection with their contractual relationship or the resulting contractual relationship. Such information may only be passed on to persons who are not involved in the conclusion, implementation or processing of the contractual relationship – unless there is a legal obligation – only with the express written consent of the contractual partner. Unless otherwise agreed, this obligation ends five years after the respective information became known, but not before the end of the contractual relationship between the provider and the customer.
13.3 Insofar as the provider can access personal data stored on the customer’s systems, he will act exclusively as a processor (Art. 4 No. 8 GDPR) and process and use this data only for the execution of the contract. The customer will conclude data protection agreements with the provider for the handling of personal data. The provider will observe the legal requirements for order processing and instructions from the customer (e.g. to comply with deletion and blocking obligations) for handling this data. The contractual partners will also impose these obligations on their employees and any third parties employed. The customer bears any negative consequences of such instructions for the execution of the contract. The following applies to the relationship between provider and customer: The customer is responsible for the processing (including the collection and use) of personal data vis-à-vis the data subject, unless the provider is responsible for any claims made by the data subject due to a breach of duty attributable to him. The customer will be responsible for checking, processing and answering any inquiries, requests and claims of the data subject. This also applies if the data subject makes use of the provider. The provider will support the customer as part of his duties. The parties undertake to comply with the relevant data protection regulations when returning the rental property. The contractual partners will agree in writing on the handling of personal data, as far as this is necessary in accordance with Section 11 (2) BDSG or other legal norms, before the provider can access it. The contractual partners will also impose these obligations on their employees and any third parties employed.
13.4 The provider and the customer are aware that electronic and unencrypted communication (e.g. via email) is fraught with security risks. With this type of communication, neither the provider nor the customer will assert claims based on the lack of encryption, unless encryption has been agreed beforehand.
13.5 All contractual relationships between the parties are exclusively subject to the law of the Federal Republic of Germany.
14. Erfüllungsort und Gerichtsstand
14.1 Erfüllungsort für alle Verpflichtungen aus den Vertragsverhältnissen der Parteien ist der Sitz des Anbieters.
14.2 Gerichtsstand für alle Rechtsstreitigkeiten aus den Vertragsverhältnissen der Parteien sowie für Streitigkeiten in Bezug auf das Entstehen und die Wirksamkeit dieser Vertragsverhältnisse ist gegenüber Kaufleuten, einer juristischen Person des öffentlichen Rechts oder einem öffentlich-rechtlichen Sondervermögen der Sitz des Anbieters. Der Anbieter ist jedoch berechtigt, den Kunden an seinem Sitz zu verklagen.