All contracts with G&L GmbH shall be governed exclusively by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). All contracts with us are concluded under exclusive application of our General Terms and Conditions.
General terms and conditions of contract of G&L Geißendörfer and Leschinsky GmbH for the provision of services, lease of hardware and software, services under a contract for work products and sale of hardware
PART 1: GENERAL
1. Parties, scope of application, validity
1.1. These general terms and conditions of contract for the provision of services, the rental of hardware and software, the provision of services under a contract for work and the sale of hardware (hereinafter referred to as "GTCs") shall apply to all contracts on the basis of which Geißendörfer & Leschinsky GmbH (hereinafter referred to as "G&L") provides, performs or handles services vis-à-vis its customers (G&L and customers hereinafter jointly referred to as the "Contractual parties").
1.2. All individual contracts between G&L and the customer are exclusively based on these "GTCs" and the provisions of the respective individual contract.
1.3. These GTCs in their respective valid version shall also apply to all future individual contracts between the contractual parties within the framework of an ongoing business relationship, without the need for a renewed reference to them, unless the contractual parties agree in writing on a different provision. This shall also apply if these GTCs have only come to the knowledge of the customer after the first conclusion of the contract between the contractual parties.
1.4. Deviating agreements as well as additional and supplementary regulations, in particular contradictory terms and conditions of the customer, require the explicit written consent (§ 126 BGB) of G&L in order to be valid and must be confirmed separately in writing (§ 126 BGB) by G&L for each individual contract. Such terms and conditions of the customer shall not bind G&L, even if G&L does not explicitly object to them or provides services to the customer without reservation in the knowledge of such terms and conditions.
1.5. Unless otherwise stipulated in the individual contract, the following terms and conditions shall apply in the following order of precedence:
• the individual contract including any supplementary agreements and service level agreements (SLA)
• - if provided - the technical performance specification,
• - if any - the specifications,
• - if any - the product description,
• these General Terms and Conditions,
• the essential contractual components of G&L's offer.
1.6. G&L will send these GTCs to the customer in writing upon request.
1.7. The contract may be concluded in the following languages: German, English. In the event of doubt or discrepancies in the interpretation of contractual provisions, only the German version shall be legally binding.
2. Amendment of the terms of contract
2.1. G&L is entitled to amend these GTCs with the consent of the customer, even during the term of an individual contract. The customer's consent shall be deemed to have been given if the customer receives the amended GTCs in writing with the notification of amendment and the customer does not object to the amendment in writing within four weeks of receipt of the notification of amendment. G&L undertakes to specifically inform the customer of the effect of approval and the consequences of a failure to object in the notification of change.
2.2. The notification of the rejection by the customer is considered an important reason in the sense of §314 BGB [German Civil Code] and entitles G&L to terminate the contract without observing a notice period at the time the amended contractual conditions come into effect if the continuation of the contract under the previous contractual conditions is unacceptable for G&L.
3. Individual contracts, conclusion of contracts
3.1. The contractual parties shall conclude individual contracts for the services to be provided by G&L. For this purpose, G&L submits an offer to the customer. This offer is non-binding unless G&L has explicitly designated or confirmed it as binding in writing.
3.2. The customer's order based on G&L's non-binding offer constitutes a legal application pursuant to § 145 BGB.
3.3. The individual contract is concluded by G&L's declaration of acceptance of the customer's order in writing on the basis of these GTCs as well as the technical performance description, if available, product description, specifications and including any additional agreements made in writing, but at the latest when G&L starts to provide the agreed service.
4. Services, general rights and obligations of G&L, subcontractors
4.1. On the basis of the respective individual agreement and these GTCs, G&L shall provide the customer with, among other things, content delivery network/content distribution network services ("CDN"), in particular, for instance
• the provision of technical infrastructures such as server capacities or the provision of access to server services and bandwidths, for example for the purpose of streaming media content,
• the provision of configuration services at/to the customer (usually via remote access/remote log-in) in connection with the provision of server capacities and the provision of access to server services and bandwidths,
• the provision of a customer access to the technical portal of the respective upstream provider of G&L, for example for the purpose of retrieving usage and traffic data as well as the customer's own configuration settings,
• the provision of technical support services for the elimination of errors including agreed service levels during the term of the respective individual contract.
4.2. G&L shall also provide the following services, among others:
• Consulting, conceptual design, system optimization, integration,
• Temporary provision of hardware and software in return for payment, together with the granting of the rights required for contractual use in accordance with these GTCs and the individual contract (software licensing, software rental),
• Configuration services and programming of interfaces as well as customer-specific adaptation of software in accordance with the specifications,
• Sale of hardware,
• Ordering, installation and integration of additional third-party products,
• Installation on hardware provided by the customer, system setup, system integration.
4.3. The scope of services and functions as well as the details of the contractual services and service levels or service level agreements (SLA) result from the respective individual contract, i.e. from the offer of G&L, the technical service description (if any), the product description (if any), the specification sheet (if any) and/or a supplementary agreement ("contractual services").
4.4. Depending on the type and scope of the specific services, the provisions of Parts 2 to 4 of these GTCs shall apply with priority to the respective services.
4.5. G&L shall provide all services carefully and in accordance with proven standards customary in the market. To this end, G&L employs personnel with sufficient specialist knowledge.
4.6. G&L provides all services, such as consulting services and concepts, on the basis of the facts and information collected by G&L from the customer or provided by the customer. G&L only guarantees the correctness and appropriateness of the advice to the extent that the advice is based on facts and information collected by G&L itself. In case of doubt, G&L is not obliged to check the information and plans provided by the customer for their correctness or plausibility.
4.7. The suitability of G&L's services as well as leased software and hardware or sold hardware for a specific purpose shall only become part of the agreed quality if this has been explicitly assured or confirmed by G&L in writing.
4.8. Work shall be carried out at G&L's premises as far as possible and only at the customer's premises as far as necessary. When carrying out work at the customer's premises, the personnel deployed by G&L shall observe those customer-specific safety and work regulations to which they have been explicitly informed in detail in writing.
4.9. G&L shall also take into account the material, non-material and organizational possibilities of the customer to a reasonable extent within the framework of the provision of services, insofar as these have been communicated by the customer in writing. Nevertheless, G&L remains free to select the method and technical implementation to achieve the agreed result.
4.10. Insofar as the customer is to be granted rights to the work results created by G&L within the scope of the provision of services in individual cases, the contractual parties shall agree on this in the individual contract.
4.11. G&L is entitled to deliver partial services. However, the customer may refuse partial performance if and to the extent that such partial performance is unreasonable for the customer, in particular because such partial performance is individually unusable.
4.12. G&L is entitled to provide individual or all services through third parties (e.g. subcontractors). The customer may object to the use of a particular third party if there are serious justified doubts about the reliability, performance or professional competence of that third party.
5. Obligations of the customer, legal consequences in the event of infringements, blocking
5.1. The customer shall be obliged to pay the agreed remuneration for the contractual services in accordance with the respective individual contract.
5.2. The customer shall use the contractual services only in the manner and to the extent agreed in accordance with these GTCs and the respective individual contract and its components, such as the technical service descriptions, or as mutually agreed by both parties. The customer shall carefully check all assumptions and starting points designated as such, which G&L presupposes for the performance of the services, for correctness or at least for plausibility and shall inform G&L immediately of any deviations or errors. This applies in particular to quantity structures and usage scenarios on which G&L's performance is based.
5.3. The customer shall ensure at all times that its use of the contractual services does not impair the technical operability, stability, and performance of the technical infrastructures and systems, nor the use of the technical infrastructures by other customers. The customer is advised that, in particular, configurations not agreed with G&L may have negative effects on usability. The customer shall inform G&L in good time of any changes to hardware, infrastructure, software and their configuration, insofar as these changes may have an impact on G&L's services.
5.4. The customer shall not use the contractual services or allow them to be used to transmit illegal or immoral content or to refer to such content. The customer is solely responsible for all content and processed data used by them and for any legal positions required for this. G&L does not take note of the customer's content and does not check the content used by the customer with the provided software.
5.5. Insofar as G&L provides the customer with corresponding access to the contractual services, such as to the technical portal of the respective upstream provider of G&L for the purpose of the customer making configuration settings, the customer shall be obliged to fully comply with any specifications of the upstream providers of G&L regarding access and use of their technical portals. G&L will inform the customer of such specifications within the framework of the individual contract, i.e. in G&L's offer, the technical service description and/or a supplementary agreement.
5.6. The customer is obliged to keep confidential all (access) data received from G&L (e.g. license keys, passwords and user names), e.g. to technical portals, and to inform G&L immediately as soon as the customer becomes aware that a password has become known to an unauthorized third party. The customer is obliged to take suitable measures to protect the software provided from access by unauthorized third parties and to keep any copies of the software in a protected place. Software provided may not be made available to third parties unless this has been explicitly agreed in writing by the parties.
5.7. The customer shall be solely responsible for the availability of its website(s) on the internet and the connectivity of its website(s) to the internet, as well as all content, IP addresses, domain names, hyperlinks, databases, applications and other resources required for the operation and maintenance of the website(s) by the customer.
5.8. The Customer shall ensure that all provision and cooperation services required for the contractual performance by G&L are provided in a timely manner, free of charge for G&L and in full. The customer shall support G&L in the provision of the contractual services to the extent necessary, in particular by
• create the conditions for the use of the contractual services in their area of control, grant G&L's employees and agents access to technical facilities, e.g. physically and via remote access/remote log-in, if this is necessary for the provision of the agreed services,
• provide G&L with the information required for the provision of the service, for example with regard to configurations made by the customer, on an ongoing basis and in an updated form,
• inform G&L without delay of any errors, faults, interruptions, security gaps or other weak points of which it has become aware, support G&L to the necessary extent in diagnosing and rectifying errors,
• keep all content and data transmitted via the contractual services on its own systems and back it up properly, regularly and appropriately based on the significance of the data.
5.9. If the customer does not comply with their obligations to cooperate despite a reminder with a reasonable grace period, G&L is entitled to terminate the contract without notice for good cause, insofar as G&L cannot reasonably be expected to adhere to the contract. Further claims of G&L remain unaffected by this.
5.10. In the event of breaches of the obligations set out in this clause 5, G&L shall also be entitled to immediately block the customer's access to the contractual services or have it blocked. In the event of a justified blocking, the customer shall not be entitled to any claims against G&L.
5.11. Further duties and obligations according to parts 2 to 4 of these GTCs remain unaffected.
6. Use of the contractual services by third parties
6.1. Direct or indirect use of the contractual services of G&L by third parties is only permitted with the explicit written consent (§ 126 BGB) of G&L vis-à-vis the customer. G&L will only refuse consent for good cause.
6.2. G&L may make the consent dependent on the payment of an additional remuneration to be agreed separately. The customer shall also pay the remuneration incurred by the authorized use of G&L's contractual services by third parties within the scope of the access and use options made available to the customer. The same shall apply in the event of unauthorized use of the contractual services by third parties, unless the customer proves that they are not responsible for the unauthorized use.
6.3. If the use by third parties is permitted, the customer shall properly instruct them in the use of the contractual services. The customer shall be responsible for compliance with the contractual provisions by the third party in the same way as they themself are or would be responsible for their compliance.
7. Time of performance, delivery dates, delay in performance, force majeure
7.1. Delivery dates and dates for the performance of services by G&L are only binding if these dates have been confirmed in writing by G&L as binding.
7.2. As long as the customer does not comply with the required duties of information and cooperation, G&L shall not be in default. Agreed deadlines and execution periods shall be extended accordingly. A delay in delivery by G&L is also excluded insofar as G&L itself is not supplied correctly or on time by its pre-suppliers.
7.3. G&L shall be in default if a delivery/service date explicitly designated or confirmed as binding at least in writing is culpably not met. If a delivery/service date has not been explicitly designated or confirmed as binding in writing, G&L shall only be in default after the fruitless expiry of a further reasonable period to be set by the customer for the delivery or provision of the service, which as a rule may not end before ten (10) working days after the initially notified delivery/service date. If G&L is in default with a performance obligation, the statutory consequences of default shall apply unless G&L is not responsible for the default.
7.4. G&L is released from the obligation to deliver for the duration of the existence of unforeseeable circumstances caused externally by elementary forces of nature or by acts of third parties which could not be avoided even by exercising the utmost care and which are not attributable to the sphere of risk of a contracting party ("force majeure").
Such force majeure circumstances include, for example, war, civil war, riots and terrorist acts, cyber attacks, natural disasters, fire and explosion, epidemics and pandemics, as well as governmental measures.
Any agreed delivery periods shall be extended by the duration of the existence of the force majeure circumstances, but by a maximum of six (6) months. If the circumstances of force majeure end within this period, the customer may only refuse the performance of the service if this has become unreasonable for him after this period of time. If the circumstances of force majeure end after the expiry of six (6) months, this shall be considered as a final performance impediment; the customer shall be entitled to withdraw from the contract (Section 323 BGB). The same shall apply if and as soon as it becomes apparent that the circumstances of force majeure will be permanent.
8. Remuneration, due date, price adjustment
8.1. The amount of the remuneration to be paid by the customer to G&L for the services to be provided by G&L results out of the offer of G&L and/or from the respective individual contract. The agreed remuneration may consist of fixed fees, services billed on a time and material basis, use-dependent variable fees, line and communication costs, license fees, rental fees and other fees.
8.2. In the event that services are billed on a time and material basis, G&L shall provide the customer with itemized statements of activities performed in the agreed form, otherwise in G&L's customary form. The customer shall return the proof of activities provided within five (5) working days of receipt, countersigned as factually correct, or shall raise objections to the correctness in writing. Activity statements shall be deemed to have been accepted as factually correct if no objections to their correctness are raised in writing within five (5) working days of receipt.
8.3. The remuneration payable to G&L in each case is exclusive of statutory value added tax and is due immediately upon receipt of an auditable invoice by the customer and is payable without deductions within fourteen (14) days to the account specified in the quotation or invoice, unless other payment terms are agreed in writing between the contractual parties or specified on G&L's invoice. Monthly, quarterly or annually recurring payment obligations are due on the 1st of each month and must be fulfilled in advance by the 10th working day of the month, quarter or year. In the first and last month of use, the fee is calculated pro rata and due in advance at the earliest possible date. The services are to be paid in EUR in each case. The customer is not entitled to discounts or other deductions.
8.4. The receipt of the full payment amount on one of G&L's business accounts is decisive for the timeliness of payment. In the event of default in payment, the statutory consequences of default shall apply. In particular, G&L is entitled to charge interest on arrears in the amount of nine (9) percentage points above the base interest rate as well as a lump sum of EUR 40 (§ 288 para. 5 BGB).
8.5. For each unpaid or returned direct debit, the customer shall reimburse G&L for the costs incurred, including the costs of collecting the outstanding payment, to the extent that the customer is responsible for the event giving rise to the costs. The customer is entitled to prove that no damage was incurred at all or that the damage was significantly lower than the flat rate.
8.6. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges incurred.
8.7. Objections to the amount of the invoiced charges must be addressed to G&L immediately after receipt of the invoice. Complaints must be received by G&L within four (4) weeks of receipt of the invoice. Failure to submit complaints in good time shall be deemed to constitute approval. Legal claims of the customer in the event of complaints after the deadline remain unaffected.
8.8. Insofar as the remuneration for services provided by G&L changes unforeseeably and beyond G&L's control after the conclusion of the respective individual contract during its term, in particular due to price changes of subcontractors, G&L shall change the agreed remuneration accordingly with reasonable notice and inform the customer thereof in writing. If the change in remuneration constitutes an increase, the customer shall be entitled to terminate the respective individual contract within a period of one (1) month from receipt of the notification of the increase in remuneration as of the date on which the same comes into effect. G&L shall inform the customer of this right of termination in the notification of the increase.
8.9. Before giving notice of termination, the customer shall give G&L the opportunity in due time to decide at its own discretion whether to withdraw the announced increase and to continue the contract with the customer at the previous conditions. If the customer does not terminate the contract in due time, the increased remuneration shall be deemed agreed in the future.
9. Change of performance
9.1. If G&L determines that services owed by G&L cannot be provided in accordance with the specifications agreed with the customer in this respect, or that individual requests or requirements of the customer for the execution of the contract are faulty or imprecise, incomplete, ambiguous or objectively not feasible, G&L shall inform the customer of this without delay and of the resulting consequences for the further execution of the contract. The customer shall contact G&L without undue delay, but in any case within one (1) week after receipt of the information, for the purpose of changing the requirements for the execution of the contract. If such a change in the requirements for the execution of the contract affects contractual conditions, such as price, execution deadlines, etc., the contractual parties shall agree on an adjustment of the conditions of the relevant individual contract, taking into account the interests of both parties. If the contractual parties cannot agree on a necessary adjustment of the requirements for the execution of the contract within fifteen (15) working days after receipt of G&L's request, each contractual party shall be entitled to terminate the respective individual contract with immediate effect. In this case, G&L shall be entitled to remuneration for its partial services rendered up to that point and to reimbursement of the expenses incurred by G&L up to that point.
9.2. Requests by the customer for changes to the execution of the contract shall only be taken into account by G&L if and when the contractual parties have reached an additional written (§ 126 BGB) agreement on the resulting effects on the execution of the contract.
10. No information on quality
Public statements, promotions or advertising by G&L do not constitute contractual quality specifications of the services owed and/or provided by G&L. Clause 4.6 remains unaffected.
11. Third-party rights, indemnity
11.1. Each party warrants that no applicable laws, governmental regulations or rights of third parties will be violated by or in connection with the performance of its contractual services, fulfillment of duties to cooperate and obligations, or the use of a contractual service.
11.2. Each party shall indemnify the other party against claims of third parties for infringement of property rights, applicable laws or official orders by or in connection with the provision of its contractual performance, fulfillment of duties to cooperate and obligations, or the use of a contractual performance upon first written request. This indemnification obligation also includes the assumption of all necessary expenses, including reasonable legal prosecution and defense costs, incurred by the other party in connection with the claim by third parties. This shall not apply if the party claimed for indemnification proves that it is not responsible for the breach of duty underlying the third party's claim.
12. Liability of G&L
12.1. G&L shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of representatives or vicarious agents of G&L.
12.2. Insofar as G&L is accused of a negligent breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper implementation of this agreement, the breach of which jeopardizes the purpose of the agreement and the observance of which the customer can regularly rely on, G&L's liability for damages shall be limited to the foreseeable, typically occurring damage.
12.3. Liability for culpable injury to life, limb or health remains unaffected.
12.4. Liability under the Product Liability Act and liability pursuant to Art. 82 GDPR shall remain unaffected.
12.5. If G&L provides the customer with access to technical portals of third parties, the customer is fully responsible for the configuration settings made therein and for the type and scope of the use of these portals by the customer; any liability of G&L for damages caused by such activities of the customer is also excluded.
12.6. Unless otherwise stipulated above, G&L's liability to the customer is excluded in all other aspects.
13. Liability of the customer and indemnification by the customer
13.1. The customer is liable in accordance with the statutory provisions.
13.2. The customer shall indemnify G&L (including its legal representatives, employees and/or other agents) without limitation, upon first request, against all claims that may arise from the use of the contractual services in violation of the law and/or the contract and that may be asserted against G&L by third parties as a result of alleged or actual infringements of their rights by the customer. The customer shall compensate G&L for all damages incurred by G&L as a result of the assertion of such claims by third parties. The aforementioned obligations to indemnify G&L include in particular the reimbursement of reasonable legal costs.
14. Duration and termination
14.1. The term of the contract and the period of use of the services covered by the contract as well as the options for ordinary termination of the respective individual contracts are set out in each case in G&L's offer and/or in the respective individual contract. Unless otherwise stipulated in the offer documents of G&L or in the individual contract or the parties have not reached a different agreement, the term always begins on the day on which the service is provided.
14.2. All terminations must be submitted in writing (§ 126 BGB).
14.3. In the event that a customer has concluded several individual contracts, the termination of one of these individual contracts shall not affect the other individual contracts and their term.
14.4. The right to termination without notice for cause remains unaffected.
14.5. Good cause for termination of individual contracts without notice exists for G&L in particular,
• if the customer is in default of payment of the agreed remuneration or of a not insignificant part of the remuneration for the contractual services for two consecutive dates, or if the customer is in default of payment of the remuneration in a period extending over more than two dates in an amount equal to the remuneration for three months,
• if the customer seriously and finally refuses to pay any fees due, irrespective of the amount,
• if the customer breaches their obligations under this contract and the breach of obligation threatens to impair the technical operability, stability or performance of the contractual services or endangers legal assets, in particular the assets or reputation of G&L, and the breach of obligation cannot be properly countered by G&L with technical measures (e.g. restrictions, blocks).
15.1. The contractual parties agree not to disclose the contents of these GTCs in connection with the respective individual contract and its components, in particular with regard to the agreed conditions, as well as all confidential information from the area of the other party, unless the use of contract contents and confidential information is absolutely necessary according to the purpose of the contract, for the assertion of rights against the other party or for the fulfillment of legal or official obligations. This shall also apply for a period of three (3) years after termination of the contract.
15.2. The contractual parties are mutually obliged to maintain secrecy with regard to business and trade secrets as well as information designated as confidential ("Confidential Information") of which each of them becomes aware in connection with the performance of the contract or which the contractual parties exchange with each other and make accessible to each other.
"Confidential Information" for the purposes of this agreement means any written, electronic, verbal, digitally embodied or other information disclosed by its owner (the natural or legal person having control over Confidential Information) to the recipient (any natural or legal person to whom Confidential Information is disclosed) that meets the following requirements. Confidential Information means:
• trade secrets, products, software, source code, know-how, illustrations, drawings, specifications, samples, descriptions, calculations, quality guidelines, quality agreements, inventions, business relationships, business strategies, business plans, financial planning, personnel matters, digitally embodied information (data);
• any documents and information which are the subject of technical and/or organizational confidentiality measures and/or are marked as confidential;
• the existence and contents of contracts between G&L and the customer.
Confidential information in this sense does not include information which
• which is known or generally available to the public before being made public or handed over by the holder or which become known or generally available to the public at a later date without breach of any obligation of secrecy;
• which was demonstrably already known to the Recipient before publication and without breach of any confidentiality obligation;
• which was obtained by the Recipient without use or reference to confidential information of the Owner itself;
• which is made accessible to the Recipient by an authorized third party without breach of a confidentiality obligation.
15.3. The recipient is obliged in each case
• To treat Confidential Information as strictly confidential and to use it only in connection with the performance of this agreement or the individual orders and their purposes;
• To disclose Confidential Information only to such agents as are dependent on knowledge of such information for the purpose, provided that the recipient shall ensure that its agents comply with this provision as if they were themselves bound by it;
• also to secure the confidential information against unauthorized access by third parties by means of appropriate confidentiality measures and to comply with the statutory and contractual provisions on confidentiality and data protection, if pertinent, when processing the confidential information;
• to the extent that the Recipient is required by applicable law, court or governmental order to disclose any or all of the confidential information, promptly notify the owner thereof (to the extent legally possible and practicable) in writing (§ 126 BGB) and use all reasonable efforts to minimize the scope of the disclosure and, if necessary, provide the owner with all reasonable assistance designed to obtain a protective order against disclosure of the confidential information or any part thereof.
15.4. Upon request by the owner, and without request at the latest upon completion of all contracts and contractual purposes entered into between G&L and the customer, the recipient shall return or destroy (including electronically stored Confidential Information) all Confidential Information, including all copies thereof, within seven (7) business days of receipt of the request or termination of the contract, as the case may be, unless this conflicts with any retention obligations agreed with the owner or required by law.
15.5. The destruction of electronically stored Confidential Information in the aforementioned sense shall be effected by the complete and irrevocable deletion of the files (in such a way that any access to the Confidential Information becomes impossible) or irretrievable destruction of the data carrier.
15.6. In addition to Confidential Information for which there is a retention obligation within the meaning of the aforementioned provision, Confidential Information whose destruction or return is not technically possible shall be exempt from the corresponding destruction obligations – whereby the recipient must demonstrate and prove that a corresponding exception exists. The recipient shall inform the owner immediately upon becoming aware that the destruction or return of the Confidential Information concerned is not technically possible.
15.7. At the request of the owner, the recipient must confirm in writing that, as far as possible, it has completely and irrevocably deleted all confidential information in accordance with the provisions of the above paragraph and the owner's instructions.
15.8. The owner shall have all rights of ownership, use and exploitation with respect to the Confidential Information, without prejudice to its rights under the German Trade Secrets Act ("GeschGehG"). The Owner reserves the exclusive right to apply for registration of property rights, if pertinent.
15.9. The owner does not acquire any ownership or – with the exception of use for the purposes described above – any other rights of use to the Confidential Information.
15.10. The Recipient shall refrain from exploiting or imitating confidential information itself in any way (in particular by way of so-called "reverse engineering", see below) and/or having it exploited or imitated by third parties and/or applying for industrial property rights – in particular trademarks, designs, patents or utility models – in respect of the confidential information outside the respective contractual purpose.
15.11. The observation, examination, dismantling or testing of products and/or objects for the purpose of obtaining trade secrets (so-called "reverse engineering"), which the owner has provided to the recipient in the course of the cooperation under the validity of this contract, is explicitly prohibited to the recipient in the sense of § 3 para. 1 no. 2b) last half sentence GeschGehG.
16. Offsetting, retention
16.1. Offsetting by the customer is excluded. This shall not apply if the counterclaim asserts a breach of a principal obligation of G&L within the meaning of § 320 BGB or if the counterclaim has been legally established or is undisputed.
16.2. The customer shall only be entitled to rights of retention insofar as their counterclaim in connection with or arising from the same legal transaction has been legally established or is undisputed. Otherwise, the customer shall not be entitled to any rights of retention.
17. Written form
17.1. This contract shall take precedence over all previous agreements on its subject matter, irrespective of whether the parties have agreed on this in writing or verbally. There are no verbal ancillary arrangements.
17.2. Amendments and supplements to and the dissolution of this agreement must be made in writing in order to be effective. The same applies for any changes to this clause requiring the written form itself. The above written form requirement shall not apply to agreements made verbally between the contractual parties after the conclusion of the contract. In this case, too, the contractual parties agree that written confirmation is required for the content of a verbal agreement.
17.3. Unless these GTCs explicitly require compliance with the written form within the meaning of § 126 BGB by way of a corresponding reference, the written form, e.g. e-mail, fax, within the meaning of § 126b BGB shall also be sufficient to comply with the written form.
18. Transfer of contract
18.1. The customer may only transfer the rights and obligations arising from these GTCs or the respective individual contract with G&L to third parties with the prior written consent (§ 126 BGB) of G&L.
18.2. Third parties within the meaning of this provision are also affiliated companies within the meaning of §§ 15ff. German Stock Corporation Act
18.3. G&L will only refuse consent for good cause and not unreasonably. The customer shall inform G&L without delay if it intends to transfer rights and obligations under contractual agreements with G&L. The provision of § 354a HGB remains unaffected by the above provision.
18.4. G&L is entitled to transfer the rights and obligations arising from this contract to a group company within the meaning of § 15 of the German Stock Corporation Act (AktG) even without the customer's consent, unless the transfer of the contract to a third party proves to be inequitable and unreasonable for the customer.
19. Applicable law, place of jurisdiction, final provisions
19.1. All contractual and non-contractual relations between the contractual parties shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
19.2. Insofar as the Customer is a merchant within the meaning of HGB [German Commercial Code], a legal entity under public law or a special fund under public law, the registered office of G&L shall be the exclusive place of jurisdiction for all disputes arising from or in connection with these GTCs and the respective individual contract. G&L is nevertheless entitled to bring an action at the customer's place of business. Any exclusive statutory place of jurisdiction shall have priority.
19.3. If individual provisions of these General Terms and Conditions and/or the respective individual contract are or become invalid, the validity of the remaining provisions shall not be affected. This shall not apply if adherence to the GTCs and/or the respective individual contract would represent an unreasonable hardship for one of the contractual parties.
PART 2: HIRE OF SOFTWARE AND HARDWARE
1. Field of application
1.1. This Part 2 of the GTCs shall apply to the provision of standard software from third-party suppliers, of individual software developed by G&L for the customer and of hardware by G&L to the customer against payment and for a limited period of time (hereinafter also referred to as the "leased item"). The software is provided to the customer for the agreed contractual term as "software-as-a-service" (SaaS model). The provision of software on a rental basis relates exclusively to the compiled object code, which generally runs on virtual instances provided by G&L or on virtual instances of the customer. If the software is executed for use by the customer on servers provided by G&L or rented cloud solutions ("Hosting"), Clause 4 of this Part 2 shall apply in addition.
1.2. The amount of the remuneration for the granting of the rights of use to the software and/or the hardware as well as for any hosting and support services shall be determined by the provisions in the respective individual contract.
1.3. As a rule, the provision of software which has been individually created or processed for the customer is not included. In this respect, the parties shall make separate written (§ 126 BGB) agreements in an individual contract.
2. Access to the software, provision of hardware, delivery, transfer of risk
2.1. G&L shall provide the customer with access to the software to the extent agreed in the individual contract as an SaaS model for the agreed term. After the initial provisioning of the software, the customer will receive the access data to the software.
2.2. The provision of rented hardware is generally at the expense of the customer, either by delivery to the customer by G&L, by collection by the customer from G&L, or by shipment of the hardware to the customer's location, depending on what the parties agree in the individual contract. In the event of delivery of the hardware by collection or shipment, delivery shall be at the risk of the customer.
2.3. G&L shall only be obliged to install or set up the hardware at the customer's premises and to make the hardware ready for operation or set it up at the customer's premises as well as to provide instruction or training if this has been agreed in writing for separate remuneration in the respective individual contract.
3. Duties of the customer
3.1. The customer shall handle rented hardware with the care of a prudent businessman, which they are accustomed to applying in their own affairs. The customer shall ensure that its employees receive sufficient instruction and training and that the rented hardware is used and operated in accordance with its usual application or the specifications in the product description.
3.2. The customer shall immediately notify G&L in writing of any defects or damage to the rented hardware.
4. Time-limited rights of use; license conditions of the third-party supplier
4.1. G&L grants the customer a non-exclusive right to use the software, limited in time, space and content, in accordance with these GTCs and, insofar as third-party software is concerned, in accordance with the applicable licence conditions of the third-party supplier of the software and the provisions in the respective individual contract. G&L shall make the licence conditions of the third-party software provider available to the customer.
4.2. The use of the software is limited in terms of content in that the customer is only entitled to use the software exclusively in its own business operations for its own operational purposes ("purpose of use") in accordance with the respective individual contract and, insofar as third-party software is involved, in accordance with the applicable licence conditions of the third-party provider of the software. Insofar as the software is hosted by G&L, the customer has the right to access and use the agreed functionality of the software in accordance with the respective individual contract and, insofar as third-party software is concerned, in accordance with the applicable licence conditions of the third-party provider of the software. The scope of functionality results from the individual contract and, if available, the technical performance description and/or a product description.
4.3. The right of use is limited in time to the duration of the individual contract and ends with the expiry of the agreed period of use or with the termination of the agreement on use made in the respective individual contract.
4.4. The right of use is spatially limited to the virtual instances named in the individual contract.
4.5. The customer is not granted any rights to the source code of the software.
4.6. The right of use is not transferable and cannot be sublicensed unless otherwise agreed in writing in the individual contract.
4.7. Furthermore, all rights to the software to which the customer is not entitled by law remain with G&L or the third-party provider.
4.8. If the Customer violates one of the licensing provisions of this Part 2 of the GTCs and/or
the license conditions of the third-party supplier of the software, all rights of use granted under this contract shall immediately become invalid and shall automatically revert to G&L. In this case, the customer shall immediately and completely discontinue the use of the software, delete all copies of the software installed on virtual instances, if any, and delete or hand over to G&L any backup copy that may have been made.
5. Data backup
5.1. If the contractual software is operated on virtual instances provided by the customer, the customer shall be responsible for backing up its own data and all data provided by third parties. The customer shall regularly carry out data backups to an extent and at intervals appropriate to the protection requirements of the respective data. In particular, the customer shall ensure that an up-to-date and complete data backup is available before G&L carries out work on systems or software on which the customer's real data is processed productively. In individual cases, the parties may agree in the individual contract that, in addition to the customer's data backup obligation, G&L will perform a data backup in defined cycles by remote access for additional remuneration and make this backup available to the customer as a file for download.
5.2. Insofar as the contractual software is operated on virtual instances provided by G&L, G&L shall regularly perform data backups in accordance with the provisions in the individual contract or the SLA with regard to the data processed by the customer with the software to an extent and at intervals appropriate to the protection requirements of the respective data.
6. Open Source
If open source software is handed over or provided to the customer together with the software, the rights and obligations of the customer shall be governed exclusively by the terms and conditions of the open source license under which the software was published. The applicable license conditions of the respective open source license are listed in the individual contract.
7. Maintenance and support, service level agreement
7.1. Maintenance and support of the software and/or hardware shall be provided by G&L in accordance with the service level agreement concluded individually with the customer. If no service level is agreed, G&L shall provide maintenance and support services in a reasonable time and to a reasonable extent.
7.2. The customer is obliged to notify G&L in writing of any defects, functional failures, malfunctions or impairments, interruptions of operational readiness or other impairments known to them immediately after their discovery, stating the performance affected, as well as details known to the customer, in particular regarding the error pattern, and to describe them as precisely as possible.
8.1. The statutory (rental) warranty rights apply to the temporary provision of the software and/or hardware with the following proviso:
8.2. The warranty for initial defects of the software and/or hardware is excluded unless G&L is responsible for the defect.
8.3. G&L warrants that the contractually agreed quality of the software and/or hardware will be maintained during the term of the contract and that no rights of third parties conflict with the contractual use of the software and/or hardware. G&L shall remedy any material defects and defects of title in the leased property within a reasonable period of time.
8.4. With regard to the leased software, G&L has the right, at its own discretion, to remedy the defect either by providing patches or a later release version of the entire software or parts thereof. G&L shall also be entitled to remedy the defect in the software by means of so-called workarounds that do not eliminate the deficiency that caused the defect, but only the effects on the customer.
8.5. Furthermore, G&L is entitled to make changes to the structure of the data processed via the software or the data format in order to eliminate malfunctions.
8.6. The warranty does not cover improvements, functional enhancements, or training.
9. Usage control, audit right
9.1. If the software is operated on virtual instances provided by the customer, the customer is obliged to provide G&L with information on the scope of use of the software immediately upon request. In the event that the software is operated on virtual instances of the customer, G&L reserves the right to check whether the customer's use of the software exceeds the agreed scope.
9.2. G&L may demand information from the customer at any time about the type and scope of the actual use of the software. This information shall be provided, as far as possible, by submitting suitable usage reports generated by the software for each instance executed. G&L undertakes to take into account the respective administrative effort and the respective capacity of the customer when asserting requests for information in order to avoid unreasonable impairment of the customer's business operations.
9.3. If G&L has reasonable doubts about the correctness or completeness of the information provided by the customer, G&L may collect the information required to determine the scope of use ("audit") through its own employees or independent third parties bound to secrecy at the customer's business or IT premises. The customer is obliged to enable access to the required information, either by system access to the required resources or by providing an employee who has access to the required resources. Each party shall in principle bear its own costs incurred. The customer shall bear all costs of the audit if actual use of the software is found to exceed the agreed use by more than 15%.
10.1. G&L has the right to terminate a temporary usage relationship for software and/or hardware without notice, if
(a) is in arrears with the agreed fees for the use of the software and/or hardware as well as for the maintenance of the software and the support for two consecutive months in whole or for the most part, or
(b) is in default for a period of more than two months in total of an amount equal to at least twice the monthly fee for the use of the software and/or hardware and the maintenance of the software and support.
10.2. G&L shall also have the right to terminate a temporary usage relationship for the software and/or hardware without notice if a significant defect in the software and/or hardware cannot be rectified after at least two attempts to rectify the defect, or if the rectification of the defect is likely to exceed five times the agreed monthly fee for the use of the software or hardware and the maintenance of the software and support.
PART 3: SERVICES
1. Installation, configuration, programming of software/interfaces
1.1. If the subject matter of the individual contract includes services such as installation, configuration or programming of software or interfaces, which in individual cases are to be qualified as work performances, G&L undertakes to provide these services in accordance with the individual contract and the agreements in a specification sheet. Clause 4 of this Part 3 of the GTCs shall apply to subsequent changes and additions.
1.2. The designated services are generally provided for the implementation of a concept prepared by G&L or a consultation by G&L. If no concept was previously prepared by G&L and no advice was provided by G&L, G&L shall provide its services without regard to the suitability or expediency for the customer's requirements. G&L shall inform the customer without delay if and to the extent that the impracticability of implementing the concept or planning provided by the customer becomes apparent. In this case, G&L will await the customer's decision on the impracticable part of the performance. During the period in which the customer's decision on the impracticable part of the performance is pending, G&L shall not be in default with the performance of this part of the contractual services.
1.3. If the subject matter of the contract includes the individual creation or processing of software, G&L undertakes to deliver the (executable) object code of the agreed software, the functionality of which is determined by the individual contract and, if available, the specifications and requirements. Clause 4 of this Part 3 of the GTCs shall apply to subsequent changes and additions.
1.4. G&L shall only be obliged to hand over the source code of the software if this has been explicitly agreed in writing (§ 126 BGB).
1.5. G&L shall deliver user and administration documentation for the created or adapted software if this is part of the order, on the basis of which a sufficiently qualified and trained user or administrator can operate or set up the agreed functionality. In case of doubt, the documentation can also only be provided electronically.
2.1. Unless otherwise agreed, G&L shall translate the functional and organizational functional concept of the service to be provided (requirements specification) to be drawn up by the customer into a technical implementation concept (requirements specification). The performance specification is the primary basis for the subsequent provision of services.
2.2. The preparation of the performance specification shall always be remunerated separately, unless otherwise agreed.
2.3. The performance specification shall be submitted to the customer prior to the commencement of further services. The customer shall check the performance specification for obvious errors and plausibility within the scope of its expertise and technical knowledge and shall immediately notify G&L in writing of any such errors.
3. Timetable and schedule
3.1. The parties shall agree on a schedule and timetable for the work services. Dates and deadlines are only binding if they are explicitly designated as binding in writing.
3.2. If the customer fails to provide the required cooperation in due time, the time and sequence schedule shall be automatically postponed by the period of time by which the fulfillment of the customer's obligation to cooperate is delayed. This does not apply if G&L has not informed the customer of the necessity of the duty to cooperate and the impending delay. As long as the customer does not comply with required duties to cooperate, G&L shall not be in default.
3.3. The same shall apply if G&L is not supplied correctly or on time by its pre-suppliers.
3.4. If the performance of a duty to cooperate on the part of the customer is delayed by more than five (5) working days, G&L may demand from the customer a reasonable postponement of binding performance deadlines to the extent that deadlines cannot be met due to the delay because of changes in G&L's personnel planning.
3.5. Insofar as G&L cannot otherwise deploy the personnel and resources planned for the service due to the delay of a duty to cooperate on the part of the customer, G&L may demand reasonable compensation from the customer, in particular for personnel costs incurred and other advance costs. The amount of compensation shall be based on the duration of the delay and the amount of the agreed remuneration.
3.6. G&L's statutory right of termination remains unaffected.
4. Change requests
4.1. Changes and additions to the content and scope of the services to be provided by G&L may be proposed by either party even after the commencement of the provision of services (change request).
4.2. Change requests must contain at least the following information and be submitted to the other party in writing:
a) Description or specification of the change request;
b) If applicable, justification in functional and technical terms;
c) Expected effects on the time and process schedule;
d) If the change request is made by G&L, an estimate of the effort required or the (additional) costs.
Change requests submitted by the customer shall be reviewed by G&L and supplemented by an effort estimate or estimate of the (additional) costs including the total effort to be expected for the review and preparation of the change request, if necessary, and sent back to the customer in writing.
4.3. Additional expenses for G&L resulting from change requests shall be remunerated separately in accordance with the agreed remuneration.
4.4 The content of the change request, regardless of which party submits it, shall only become part of the content of the contract if the change request submitted in accordance with Section 4.2 is accepted by the other party in writing, including the expected effects on the schedule and costs.
5. Duties of the customer
5.1. In addition to the obligations to cooperate set out in Part 1 of these GTCs, the customer shall in particular fulfil the obligations set out in the individual contract and in clause 5.2 below:
5.2. The customer shall in particular
• specify the requirements placed on the services, e.g. in technical and organizational terms, in sufficient detail in writing (specifications),
• create or provide test scenarios, test plans and test data which sufficiently accurately reflect the later productive operation and its requirements,
• provide a development and test environment
• document any errors detected in the course of testing or live operation in a reproducible or at least comprehensible form and to notify G&L immediately,
• continue to maintain its system environment (hardware and software), unless a maintenance contract to this effect has been concluded with G&L.
6.1. Completed services under this Part 3 of the GTCs must be accepted. Services under other parts shall only be accepted if acceptance has been explicitly agreed in writing (§ 126 BGB).
6.2. G&L shall notify the customer in writing of the readiness for acceptance of the respective service or partial service.
6.3. Upon such notification, the customer and, if applicable, G&L shall immediately, but no later than within three (3) business days, commence with the performance of the agreed functional and acceptance tests. The test period shall not exceed five (5) working days, but shall be reasonably extended at the customer's request if the necessary tests foreseeably require more time or are delayed due to circumstances unforeseeable by both parties.
6.4. After successful completion of the functional and acceptance tests, the customer shall declare acceptance in writing without delay. The declaration of acceptance shall be made if the service or partial service fulfills the agreed requirements in all essential points.
The service or partial service fulfills the agreed requirements in all essential points if it does not contain any errors which either
a) lead to the fact that the service or partial service to be accepted cannot be used, or
b) cause significant restrictions in the use of essential functions that cannot be circumvented by suitable measures for a reasonable period of time that is reasonable for the customer.
6.5. Acceptance shall also be deemed to have been granted without explicit declaration by the customer if the customer
a) within ten (10) working days after receipt of the notice of readiness for acceptance, neither requests an extension of the period of the functional and acceptance tests nor gives written notice of non-fulfillment of the agreed requirements in essential points, or
b) uses the service provided in productive operation without giving written notice of non-fulfillment of the agreed requirements in essential points within three (3) working days at the latest.
7. Software usage rights
7.1. Unless otherwise agreed in writing in the individual contract, G&L grants the customer the following rights of use to the individually created or adapted software:
7.2. Until the agreed remuneration has been paid in full, the customer shall be granted a simple, limited, non-transferable right to install the software on its systems and to use it for test purposes. Use in productive operation, i.e. for the customer's business purposes, is not permitted.
7.3. Subject to the condition precedent of full payment of the fee agreed for the creation or adaptation of the software, the customer shall receive a simple, unlimited, worldwide right to use the software for the customer's business purposes. This right of use is only transferable to affiliated companies (§ 15 AktG) without the written (§ 126 BGB) consent of G&L.
7.4. Rights to the source code, as well as further rights to the object code, in particular rights going beyond use for the customer's own business purposes, such as reproduction, the right to edit and distribute and the right to make the object code available to the public, shall only be granted to the customer if the granting of these rights has been explicitly agreed in writing (§ 126 BGB) in the individual contract or has been assumed by both parties.
7.5. The customer shall only be granted an exclusive right instead of a simple right insofar as the granting of this right is explicitly agreed in writing in the individual contract. G&L shall remain entitled to use and process the software for its own business purposes even if an exclusive right of exploitation is granted.
7.6. In all other respects, all rights to the software to which the customer is not entitled by law shall remain with G&L.
8. Remuneration and due date
8.1. The agreed remuneration is due upon acceptance of the service.
8.2. Services outside the agreed scope of performance or subject matter of the contract shall be remunerated separately by the customer.
8.3. G&L may demand payment of reasonable advance payments from the customer.
If the individual contract ends prematurely, G&L shall be entitled to remuneration corresponding to the services rendered up to the termination of this individual contract.
9.1. In the event of material defects, the statutory warranty law under the contract for work and services shall apply with the following proviso:
9.2. Warranty claims of the customer shall become statute-barred after one (1) year from the statutory commencement of the limitation period, unless another statutory period is mandatorily applicable. The above provision shall not apply in cases of liability of G&L due to culpable injury to life, body or health and in cases of liability of G&L due to claims for damages based on intent or gross negligence, including intent or gross negligence of G&L's representatives or vicarious agents.
9.3. G&L is also entitled to provide supplementary performance by delivering a new release version of the software or by so-called workarounds, which do not eliminate the deficiency causing the defect, but only the effects for the customer. If this type of supplementary performance fails, the customer may, at their discretion, reduce the agreed remuneration or withdraw from the contract. In addition, the customer shall only be entitled to claims for damages within the scope of clause 12 of part 1 of these GTCs.
9.4. If the defect does not impair the functionality or does so only insignificantly, G&L shall be entitled to remedy the defect by delivering a new version or an update within the scope of its version, update and upgrade planning. If this type of supplementary performance fails, the customer may, at their discretion, reduce the agreed remuneration or withdraw from the contract. In addition, the customer shall only be entitled to claims for damages within the scope of clause 12 of part 1 of these GTCs.
9.5. Defects shall be notified in writing by means of a comprehensible description of the symptoms of the defect, as far as possible by means of written records or other documents illustrating the defects. The notice of defect shall enable the reproduction of the defect.
9.6. Any statutory obligations of the customer to examine and give notice of defects shall remain unaffected.
PART 4: SALE OF HARDWARE
1. Subject of the agreement
1.1. The details of the subject matter of the purchase contract and the purchase price are set out in the respective individual contract.
1.2. Services provided by G&L in connection with the sale of hardware, such as setting up, installation, instruction as well as maintenance and repair of the hardware are not the subject matter of the purchase contract and shall generally be remunerated separately. The parties shall make separate agreements on the provision of the aforementioned or similar services in the respective individual contract.
2. Delivery unavailability, transfer of risk
2.1. Delivery dates are non-binding unless G&L has explicitly designated or confirmed a delivery date as binding in writing.
2.2. Hardware is usually ordered by G&L from the supplier in the configuration requested by the customer. If the configuration requested by the customer is not available from G&L's supplier (e.g. following a change in product generation, non-delivery by the manufacturer or discontinuation of a product line), G&L will offer the customer at least one comparable and available product. There is no entitlement to delivery of the product initially requested.
2.3. Delivery of the hardware shall be ex works G&L, Maarweg 149-161, 50825 Cologne (i.e. "ab Werk"/"ex works" or "EXW Maarweg 149-161, 50825 Cologne" according to Incoterms 2020), unless the parties explicitly agree otherwise in writing in the individual contract.
Unless a case of sale by delivery to a place other than the place of performance pursuant to § 447 BGB exists in an individual case, the risk of accidental destruction and loss as well as deterioration of the hardware shall thus pass to the customer as soon as G&L has made the hardware available to the customer at the named place of delivery as agreed.
3. Retention of title
The delivered hardware remains the property of G&L until full payment has been made.
4. Duty to examine and give notice of defects, negative quality agreement, warranty and limitation
4.1. The customer shall immediately inspect the delivered hardware for proper functioning in accordance with § 377 HGB. The customer shall immediately notify G&L in writing of any obvious defects that are recognisable upon proper inspection. The customer shall notify G&L in writing immediately after discovery of any defects that could not be detected even after a proper and immediate inspection. Warranty claims are excluded if the deadline for notification is missed.
4.2. The statutory purchase warranty law shall apply in accordance with the following provisions of this clause 5. of this Part 4.
4.3. The delivery item is free of material defects if it has the quality agreed in the individual contract with the customer at the time of transfer of risk, is suitable for the use presupposed in the individual contract and is handed over with the agreed accessories and the agreed instructions. This shall also apply if the delivery object does not meet the objective requirements pursuant to § 434 Abs. 3 BGB, in particular if its agreed quality deviates from or falls short of the usual quality of comparable goods.
4.4. Warranty claims of the customer shall become statute-barred after one (1) year from the statutory commencement of the limitation period, unless another statutory period is mandatorily applicable. The above provision shall not apply in cases of liability of G&L due to culpable injury to life, body or health and in cases of liability of G&L due to claims for damages based on intent or gross negligence, including intent or gross negligence of G&L's representatives or vicarious agents.
4.5. In the event of a material defect, G&L shall first be entitled to subsequent performance, i.e. at its own discretion to remedy the defect ("rectification") or to make a replacement delivery. G&L is entitled to provide the warranty on the customer's premises.
4.6. If the supplementary performance fails or is unreasonable for G&L in the individual case, or if G&L has refused both types of supplementary performance, the Customer may withdraw from the individual contract or reduce the agreed purchase price. In addition, the Customer shall only be entitled to claim damages within the scope of Ziffer 12 of part 1 of these AVB.
4.7. If G&L is the Customer's supplier and if the Customer asserts claims against G&L for reimbursement of expenses which the Customer had to bear in relation to its buyer due to the defect of a newly manufactured item sold (§ 445a BGB), the suspension of the expiry of the limitation period for the aforementioned recourse claims and the Customer's claims against G&L for defects (§ 437 BGB) shall, notwithstanding § 445b Abs. 2 BGB, end five years after the date on which G&L delivered the item to the Customer.