General Terms & Conditions
(Status as of 2019-11-01)
§ 1 Subject matter and scope
(1) These General Terms and Conditions (hereinafter referred to as GTC) shall apply to all services provided by IBS data protection services and consulting GmbH (hereinafter referred to as Contractor). Only the German version of this contract shall be legally binding, the English translation serves information purposes only.
(2) These GTC shall apply exclusively. The Contractor shall not recognize any terms and conditions of the Customer (hereinafter referred to as the Client) that conflict with or deviate from these GTC unless the Contractor has expressly agreed to their validity in text form. These GTC shall also apply if the Contractor provides the contractual service without reservation in the knowledge of conflicting or deviating terms and conditions of the Client.
(3) These GTC apply to all contractual partners, with the exception of consumers.
§ 2 Offer, order and conclusion of contract
(1) Subject to a separate regulation, the contract is concluded upon receipt of the order confirmation by the Contractor or upon commencement of the execution of the order by the Contractor.
(2) All offers by the contractor are non-binding unless the offer expressly states otherwise.
§ 3 Remuneration and terms of payment
(1) The price applicable to the contractual service results from the order confirmation or the contract.
(2) If the Client is responsible for a delay in the provision of services of more than three months since the order was placed, the Contractor is entitled to charge the prices valid at the time the service was provided. In the event of a price change, the Client has the right to terminate the contract in text form without observing a notice period at the time the change takes effect. The Client will be informed of this separately by the Contractor in the price change notification.
(3) The agreed prices are net prices plus sales tax at the statutory rate.
(4) Unless otherwise contractually agreed, travel expenses, accommodation expenses and expenses will be invoiced separately.
(5) Invoices are due for payment immediately after invoicing without deduction.
(6) For self-contained parts of the service, the Contractor can demand an advance payment in the amount of the service value provided in accordance with the contractual provisions.
(7) A right of retention on the part of the Client is excluded, unless the Client’s counterclaim stems from the same legal relationship and is undisputed or has been legally established. The Client is only entitled to set-off rights if his counterclaim is undisputed, legally established or recognized by the Contractor.
(8) The Contractor is entitled to withdraw from the contract if the Client has filed an application for the opening of insolvency proceedings against his assets, has submitted an affidavit in accordance with § 807 ZPO or insolvency proceedings have been opened against his assets or have been rejected due to insufficient assets.
§ 4 Default of payment
(1) The Contractor shall charge a reminder fee of €3.00 for reminders.
(2) If the Client is in default of payment, the Contractor is entitled to refuse the service in whole or in part. In this case, the Client remains obliged to pay the agreed remuneration.
(3) If the payment of monthly payments has been contractually agreed and the Client is culpably in arrears with more than two monthly payments, the entire amount is due for immediate payment by the end of the contract period.
(4) The assertion of further claims due to default in payment remains unaffected.
§ 5 Principles for the provision of services
(1) If no time of performance has been agreed, the service begins two weeks after the conclusion of the contract. If an obligation to cooperate on the part of the Client is required before the Contractor can begin the services, this period does not begin to run before the Client has fulfilled this obligation.
(2) The Contractor is entitled to use third parties to provide the contractual service without the consent of the Client, provided there are no contractual or statutory provisions to the contrary. These third parties will not become contractual partners of the Client.
(3) Insofar as the contractual service is to be provided in the business premises or on the company premises of the Client, the employees and agents sent by the Contractor are not integrated into the business operations of the Client. Beyond the exercise of domiciliary rights, the Client has no direct authority to issue instructions to the employees and agents of the Contractor, unless contractual or statutory regulations conflict with this.
(4) The Contractor is not responsible for the further monitoring of developments and findings that become known after the service has been rendered, or for checking or updating the services and results provided by the Contractor.
(5) The Client may only transfer rights and obligations from this contract to a third party with the prior written consent of the Contractor.
§ 6 Term of contract and termination
(1) Unless otherwise expressly agreed in writing, the contract ends with the completion of all work belonging to the agreed scope of services.
(2) Unless otherwise expressly agreed in writing in the case of continuing obligations, a notice period of three months to the end of the quarter shall apply.
(3) The right to termination for good cause remains unaffected.
§ 7 Cooperation and provision obligations of the client
(1) The Client undertakes to support all measures that are necessary for the provision of the services by the Contractor.
(2) The Client must submit all requests in relation to the provision of services exclusively to the contact person named by the Contractor.
(3) If the services are provided on site at the Client’s premises, the Client shall provide the network components, connections, supply current incl. peak voltage compensation, emergency power supply, storage space for systems, workplaces and infrastructure to the required extent and quality (e.g. air conditioning) are available free of charge. The Client is responsible for compliance with the requirements for operating the hardware required by the respective manufacturer. The Client must also ensure room and building security, including protection against water, fire and access by unauthorized persons. The Client is responsible for special safety precautions (e.g. safety cells) on his premises.
(4) The Client shall provide all information, data and documents required by the Contractor to carry out the order on the agreed dates and at his own expense in the form required by the Contractor and shall support the Contractor upon request in problem analysis and troubleshooting, the coordination of processing orders and the coordination of the services. Changes in the Client’s work processes, which can cause changes in the services to be provided by the Contractor for the Client, require prior agreement with the Contractor with regard to their technical and commercial effects.
(5) The Client will ensure a network connection at his own risk and expense, unless the Contractor is contractually obliged to establish the network connection at his own expense and risk.
(6) The Client will also store the data and information handed over to the Contractor so that they can be reconstructed at any time in the event of loss or damage.
(7) In order to carry out security tests, the Client will provide systems that are not used productively and which cannot affect any part of the company network during the test. If the Client wishes to carry out the security tests on productively used systems, this request must be addressed to the Contractor in writing. In addition, a written declaration of consent from the Client’s management must be submitted before the start of the security tests.
(8) Software that the Contractor is to install on the Client’s systems at the request of the Client must be provided by the Client. The Client must ensure that the required number of software licenses are made available in accordance with the provisions of copyright law.
(9) The Client will fulfill all of his obligations to cooperate in a timely manner so that the Contractor is not hindered in the provision of his services. The Client ensures that the Contractor and/or the third parties commissioned by the Contractor have the necessary access to his premises for the provision of the services. The Client is responsible for ensuring that the employees of his affiliated companies involved in the fulfillment of the contract or third parties commissioned by him cooperate accordingly in the fulfillment of the contract.
(10) If the Client does not or not completely fulfill his obligations to cooperate by the agreed deadlines or to the intended extent, the services provided by the contractor shall be deemed to have been provided in accordance with the contract insofar as the agreed remuneration for this part of the service must still be paid. Schedules for the services to be provided by the Contractor are shifted accordingly. The Client will reimburse the Contractor separately for any additional expenses and/or costs incurred as a result at the applicable prices.
(11) Unless otherwise agreed in writing, the Client provides and cooperates free of charge.
§ 8 Warranty
(1) Insofar as the assertion of rights by the Client requires the setting of a reasonable grace period, this is at least three weeks.
(2) The warranty period is 12 months and begins with the completion of the contractual service.
(3) Complaints about obvious defects in the contractual service and incorrect or incomplete delivery must be made in writing immediately, but no later than 3 days after delivery of the contractual item.
(4) Compliance with the deadline depends on the timely receipt of the notice of defects or complaint. Warranty claims are excluded if complaints are not reported in good time. The Contractor does not waive this objection by first negotiating the complaints.
§ 9 Liability of the Contractor and Statute of Limitations
(1) The Contractor is released from the obligation to perform and liability if and to the extent that the non-performance of the contract is due to the occurrence of circumstances of force majeure after the conclusion of the contract. This also applies if the circumstances of force majeure occur at a subcontractor. Circumstances of force majeure include, for example, war, strikes, unrest, expropriation, cardinal legal changes, storms, floods, other natural disasters, water ingress, power failures and other similar circumstances for which the Contractor is not responsible.
(2) The Contractor is only liable for the loss of data if the Client has backed up his data at intervals appropriate to the application in a suitable form so that they can be restored with reasonable effort.
(3) The Contractor is also not liable for data loss and hardware faults caused by the incompatibility of the components on the Client’s PC systems with the new or to be changed software and for system faults caused by existing incorrect configurations or older, disruptive ones completely removed drivers can arise. The same applies to damage caused by errors in the handling and operation of the contractual products by the Client, in particular if the instructions in the accompanying material supplied or other information are not followed by the contractor, as well as in the event of inadmissible changes to the contractual products provided.
(4) Furthermore, the Contractor is not liable for the accuracy and completeness of the values, calculations, measurement results, etc. provided by the Client, unless the Contractor is contractually responsible for checking them.
(5) In principle, the Contractor is only liable for intent and gross negligence. Liability for simple negligence is limited to the foreseeable, typically occurring damage, provided that no essential contractual obligations are affected. Any further claims of the Client are excluded.
(6) The aforementioned restrictions and exclusions do not apply in the event of injury to life, limb or health.
(7) The above exclusions and limitations of liability apply to the same extent in favor of legal representatives, employees and other vicarious agents.
(8) All claims of the Client, for whatever legal reason, expire in twelve months.
§ 10 Liability of the Client
(1) If the Client provides the Contractor with data or programs within the scope of the business relationship, the Client shall be fully liable for all damages, irrespective of the legal grounds, which these data or programs cause to the Contractor.
(2) The Client undertakes to take out a corresponding business liability insurance policy prior to the commencement of the provision of services and to present this to the Contractor upon request.
§ 11 Form of declarations
Legally relevant declarations or notifications to be made by the Client to the Contractor or a third party must be made in text form, unless otherwise stipulated in these GTC.
§ 12 Place of performance
The place of performance for all obligations arising from the business relationship shall be the Contractor’s registered office.
§ 13 Data Protection
§ 14 Confidentiality
(1) All information exchanged between the Contractor and the Client within the framework of the contractual relationship and also during preliminary negotiations prior to the conclusion of a contract (documents, files, concepts) shall be considered confidential and shall be made accessible within the involved contractual partners only to those employees who require this information to fulfill the purpose of the contract. Translated with www.DeepL.com/Translator (free version)
(2) The obligation to maintain confidentiality shall survive the termination of the business relationship. After 2 years, all data held by the contractor will be deleted, unless other legal provisions apply.
(3) The Contractor and the Client shall instruct their personnel accordingly and oblige them to comply with this agreement.
§ 15 Final clause
(1) The law of the Federal Republic of Germany shall apply, whereby the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Hamburg. The district court of Hamburg-Mitte is responsible.
(3) Should any provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.