The following General Terms and Conditions (GTC) apply to the entire business relationship of the contracting parties, that is, compacer GmbH or its subsidy ("compacer", "we") and their client ("clients", "they"). compacer’s clients also accept to be bound by our GTC for all future business transactions. Any diverging terms and conditions stipulated by clients shall not become part of the agreement even if we do not explicitly object or react; or if a document of the client references such terms and conditions; or by accepting an offer, service or other performance from the client. Our GTC do not apply to consumers (§ 13 BGB).
2. CONCLUSION AND CONTENT OF AGREEMENTS
Our offers to conclude a contract are not binding, except if the individual offer contains an express statement to the contrary. The scope of our services is based on the service specification valid at the time the offer is made. Service specifications do not constitute any guarantees or assurances of the characteristics of our services.
3. PROVISION OF SERVICES AND AVAILABILITY
3.1 We reserve the right to deliver partial services, except where this is deemed unacceptable or unreasonable for the client. We further reserve the right to provide our services through third parties.
3.2 Performance deadlines extend by the period of time in which we are unable to provide our services due to circumstances for which we are not responsible, including, but not limited to, labour conflicts, force majeure, loss of employees or machines (including hardware) or disruption of telecommunication connections; and by a reasonable start-up period after the circumstance has ended. The same holds true for periods in which the client does not fulfil his cooperation obligations.
3.3 For services based on servers and networks, the following applies: We allow the client to use the services within the agreed operating period. The agreed minimum availability during the agreed operating period is at 98.0 % per calendar year. This constitutes an agreement on the scope of our performance obligation, but no guarantee or assurance of service characteristics. Actual availability will be calculated with the following formula: (uptime - downtime) / uptime x 100 = actual availability in percent. The time of operation (uptime) does not include necessary maintenance periods; we thus reserve the right to limit our services when this is necessary for business critical or security-related measures (e.g., for maintenance or security fixes); we strive to announce such measures in due time if they are foreseeable and to restore full functionality within a reasonable time frame, depending on the cause of the disruption.
4. CLIENT OBLIGATION OF COOPERATION
4.1 Proper and timely performance of services is dependent on the proper and timely cooperation of the client, where necessary. If the client does not cooperate fully or properly, we shall be free from our obligation to perform to the extent and for the period in which our services depend on the client’s cooperation. The client is responsible for any disadvantages and costs resulting from his lack of cooperation.
4.2 In particular, the client is responsible, to a reasonable extent, for providing all data to be processed in time, for their completeness and accuracy and for checking the completeness and accuracy of working results.
4.3 The client will assert any defects in traceable and detailed writing, including all information necessary to recognize the defect, the steps or actions leading to the defect, its effects and its form of appearance.
5. DATA PROTECTION; DATA BACKUPS BY CLIENTS
5.1 Insofar as we are contractually bound to collect, process or use personal information for the client (§ 11 BDSG), our terms and conditions for “commissioned data processing” (“Auftragsdatenverarbeitung”) valid at the time of conclusion become part of the agreement.
5.2 If we do not agree on backing up and / or archiving data on behalf of the client, it is the clients sole responsibility to archive his data using up-to-date technologies, to respect adequate backup intervals, and to backup in a way that will allow him to restore his data with reasonable effort.
Where not indicated otherwise, all prices are net prices exclusive of statutory value-added tax (VAT). We reserve the right to credit payments to the client’s oldest debt first, even if stipulated otherwise by the client. The client has to object against disputed payment claims in writing within eight (8) weeks of receiving the relevant bill. If the client does not object to an invoice within eight weeks, the invoice shall be deemed approved by the client as long as we have expressively noticed the client of the consequences of his lack of timely reaction on the bill itself. Statutory claims of the client with respect to objections made after this period shall remain unaffected.
7. RESERVATION OF OWNERSHIP; RIGHTS TO SOFTWARE
Goods delivered on the basis of contractual performance remain our property until the purchase price has been paid in full. Our software and business evaluations are protected by German copyright law (“Urheberrecht”).
8.1 In accordance with statutory regulations, we are unconditionally liable
for damages based on breach of a guarantee provided by us;
for claims based on wilful intent;
for damages resulting from fraudulent concealment of defects;
for claims based on loss of life, injury or damage to health due to intentional or grossly negligent breach of obligations by us or otherwise due to intentional or grossly negligent behaviour by our legal representatives or agents;
for damage claims based on other reasons than those listed under item 4 due to intentional or grossly negligent breach of obligations by us or otherwise due to intentional or grossly negligent behaviour by our legal representatives or agents;
for claims based on product liability law (“Produkthaftungsgesetz”).
8.2 In all cases not covered by subsection 8.1, our liability is limited to such damages which are foreseeable and typical of the contract, insofar as the damage resulted from negligent violation of cardinal obligations by us or by our legal representatives or agents. Cardinal obligations are obligations whose fulfilment allows the proper performance of the contract in the first place, and on whose fulfilment the client regularly counts and can regularly count. A damage is deemed foreseeable and typical if we have foreseen it at the time of conclusion as a possible result of a breach of obligations, or if we ought to have foreseen it considering circumstances we either knew of or should have known of.
8.3 In other cases than those mentioned in subsections 8.1 and 8.2, liability due to negligence is excluded.
8.4 Strict liability (liability without fault) according to § 536a Abs. 1 Var. 1 BGB based on defects already present at the time of conclusion is excluded.
8.5 Objections of contributory negligence shall not be affected.
8.6 The above provisions in section 8, with the exception of subsection 8.4, are also applicable to our liability with respect to compensation for unsuccessful expenses.
9. FORM OF CLIENT COMPLAINTS AND DECLARATIONS
Complaints and declarations made to us by the client or by third parties (e.g. notices of defect, dunning letters, deadlines, declarations of withdrawal, price reduction or termination, etc.) need to be made in writing.
10. CHOICE OF LAW, PLACE OF PERFORMANCE AND COURT OF JURISDICTION
All agreements between compacer and its clients shall be governed by the law of the Federal Republic of Germany under exclusion of UN commercial law and Private International Law. The place of performance and the place of payment are at Saarbrücken (Germany). The competent court of jurisdiction for all disputes directly or indirectly arising from the contractual relationship is Saarbrücken (Germany) if the contract partners are businessmen, legal entities under public law or special funds under public law.