(The following GTC contain our data protection information in accordance with Article 13 GDPR)
§ 1 Scope
(1) These GTC apply only to services provided by the Provider to entrepreneurs (hereinafter referred to as Customer) within the meaning of § 14 BGB.
(2) These GTC shall also apply exclusively to all future transactions between the contracting parties. The information in written offers of the supplier shall take precedence over these GTC.
(3) The Customer's GTC shall only apply to the extent that the Provider has expressly consented to them in writing prior to the respective conclusion of the contract. This requirement of consent shall also apply if the Provider performs services with knowledge of the Customer's GTC and does not expressly object to the validity of the Customer's GTC.
(4) The contract language is German. The General Terms and Conditions of the Provider including attachments are only offered in German. Possible translations of the GTC serve merely as an aid to understanding. In the event of disputes or questions of interpretation, only the German version of the GTC shall be used.
§ 2 Subject matter and conclusion of the contract
(1) The Provider offers the Customer "Software as a Service Products" (hereinafter also referred to as "Software") in combination with the sale of hardware, installations and training. The details of the services offered by the Provider can be found in the individual service descriptions of the Provider. By concluding the contract, the customer acquires the right to use the software provided by the provider during the term of the contract within the scope of the offer and these GTC. The information provided by the provider in the offer as well as these GTC shall also apply to the hardware sold, the installation and the training.
(2) The Provider is entitled to have parts of its offered services provided by third parties. Insofar as the Provider uses third parties to provide the services offered, these shall not become contractual partners of the Customer.
(3) The Provider is entitled to independently perform updates and enhancements to the provided software at any time, provided that this is reasonable for the Customer and the changes do not affect the functional scope of the software described in the offer and these GTC.
(4) If the Provider offers free software/hardware for use, this shall be provided as a voluntary service by the Provider. A claim to the service and the fulfillment of certain requirements, in particular also to the availability, does not exist for free software/hardware of the provider. The Provider may block these free services or terminate the availability/usability at any time and without justification.
(5) Contracts between the provider and the customer are concluded by offer and acceptance. All offers of the provider are subject to change and non-binding, unless otherwise stated in the respective offer. Accordingly, a contract is only concluded when the provider confirms the customer's orders (binding offer) in writing or in text form. The same applies to supplements, amendments or collateral agreements. Unless otherwise stated in the customer's order, the provider is entitled to accept the customer's contract offer within two weeks of its receipt by the provider. If no acceptance is made within the aforementioned period, no contract is concluded. In this case, the customer is also no longer bound to his offer.
(6) The general obligations of the provider in electronic business transactions according to § 312i paragraph 1 sentence 1 number 1 to 3 and sentence 2 BGB are excluded.
§ 3 Speed and availability of the server
(1) The Provider shall owe a bandwidth of the connection of its software to the nearest Internet node that corresponds to the respective state of the art.
(2) For access to the Software, the Provider guarantees an availability of 98% on a monthly average within its area of responsibility. The regular maintenance windows for the software and the daily software restarts between 2:00 a.m. and 4:00 a.m. (Central European time zone) are not included in the calculation of availability. If it is foreseeable for the Provider that downtimes for maintenance and software updates will last longer than the maintenance windows agreed above, the Provider shall notify the Customer thereof without undue delay.
(3) If the Provider, despite exercising reasonable care, is prevented from fulfilling its above obligations due to force majeure - in particular due to the occurrence of unforeseeable, extraordinary circumstances (e.g. power supply difficulties, operational disruptions) - the agreed times for maintenance work shall be extended to a reasonable extent, provided this is reasonable for the Customer. If the Provider is prevented from performing in these cases and/or if a reasonable extension is not reasonable for the Customer in the individual case, the Provider shall be released from its performance obligations.
§ 4 Obligations of the customer to cooperate
(1) The Customer shall provide the Provider with all documents and information available to it and required for the provision of services in a timely and complete manner. The Customer shall also support the Provider in the provision of the contractual services to the extent reasonable, necessary and expedient.
(2) The Customer shall inform the Provider without undue delay if obstacles or impairments or defects occur which may have an effect on the Provider's services or if the Customer has reason to expect the occurrence of such obstacles, impairments or defects. In this context, the Customer shall pass on to the Provider the Provider's instructions for analyzing the problem and all information available to it that is necessary for the elimination of the obstacles, impairments or defects, insofar as this is reasonable for the Customer.
(3) The Customer is obligated to keep its access data to the Provider's software secret from unauthorized third parties. In particular, user names and passwords shall be stored in such a way that access to these data by unauthorized third parties is impossible in order to exclude misuse of the access by third parties. The Customer undertakes to inform the Provider without delay as soon as it becomes aware that unauthorized third parties are aware of any access data to the Software or may become aware of such data in the future. Unauthorized third parties shall not include persons who use the software of the Provider, which is the subject of the respective contract, with the knowledge and will of the Customer.
§ 5 Responsibility of the customer
(1) The Customer alone shall be responsible for any settings of the software/hardware made by the Customer that deviate from the settings of the Provider in the delivery state. The Provider is in no way obligated to check the settings of the software/hardware made by the Customer for possible legal violations.
(2) If the Customer uses the Provider's software/hardware, the Customer is solely responsible for compliance with its own legal obligations (e.g. imprint obligations, data protection obligations, etc.).
(3) If the Customer violates the aforementioned obligations and if claims are asserted against the Provider by third parties as a result of the violation, the Customer shall be obligated to compensate the Provider for the damage incurred and still to be incurred as well as to indemnify and hold the Provider harmless from claims for damages and reimbursement of expenses by third parties caused by the violation. The indemnification obligation also includes the obligation to fully indemnify the Provider from reasonable legal defense costs (court and attorney fees, etc.). Other claims of the Provider, in particular to block the software and to terminate the contract for cause, shall remain unaffected.
§ 6 Rights of use and copyright notices
(1) The Provider grants the Customer the simple, non-transferable right to use the leased software for the agreed contractual purpose in accordance with the following provisions, limited in time for the duration of the contract.
(2) Without the express permission of the Provider, the Customer is not entitled to provide access to the Provider's software to third parties without a license, in particular to sell or rent the access without a corresponding license. The use of the Software by the Customer's employees or the Customer's customers within the scope of the acquired licenses or other third parties subject to the Customer's right to issue instructions within the scope of the intended use is permitted.
(3) Markings of the Provider's software, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognizable.
(4) The Customer shall have no claim to the surrender of source code and design material or other secret information of the Provider about the Software.
§ 7 References
(1) The Provider may name the Customer by name, address and/or logo on its website, in brochures and in other customary form as a reference. For these purposes, the Customer shall grant the Provider the right to use its trademarks, names and copyrights free of charge and for an unlimited period of time.
(2) The Customer may terminate the granting of the rights of use in accordance with the preceding paragraph with a notice period of 6 months in writing by registered mail, unless in individual cases a shorter notice period is mandatory, e.g. because infringements of rights are threatened by the granting of the rights of use or the use by the Provider.
(3) However, the Provider shall also be entitled 30 days after the expiry of the notice period to deliver the reference lists available in finished print products which contain the Customer's name, brand and/or logo, unless immediate termination of use is mandatory in the individual case. Upon written request of the Customer, the Provider shall be obligated to provide information on the currently existing inventory of print products containing the Customer's name, brand and/or logo as of the date of termination of the contract.
§ 8 Remuneration and retention of title
(1) The Customer shall pay the Provider for the respective agreed services the remuneration shown in the respective offer of the Provider plus the statutory value added tax.
(2) Unless otherwise agreed, the invoiced amounts shall be due immediately after the service has been provided and the invoice has been issued.
(3) The invoices of the Provider shall be sent by e-mail. If delivery by letter is requested, the Provider is entitled to charge a reasonable handling fee.
(4) If the Customer defaults on payment of the remuneration, interest shall be charged on the Provider's outstanding claim at 9 percentage points above the base interest rate from the first day of default.
(5) The delivered hardware shall remain the property of the Provider until payment has been made in full. Prior to the transfer of ownership of the hardware to the Customer, pledging, transfer by way of security, processing or transformation by the Customer shall not be permitted without the express consent of the Provider. Any processing or transformation of the reserved goods by the Customer shall be carried out exclusively on behalf of and in the interest of the Provider. In the event of seizures, confiscations or other dispositions or interventions by third parties, the customer must notify the provider immediately.
(6) If a delivery and/or service cannot be performed or performed only late for reasons within the Customer's sphere of responsibility, in particular because the Customer culpably failed to perform its contractual obligations or failed to perform them in a timely manner, the Customer shall reimburse the Provider for the damage incurred as a result and for the expenses to be substantiated by the Provider in accordance with the Provider's applicable hourly rates.
§ 9 Delivery of Hardware, Transfer of Risk, Force Majeure, Obligations to Inspect and Give Notice of Defects
(1) The hardware shall be delivered free of charge to the address of the customer specified in the offer.
(2) Upon handover of the Hardware to the carrier designated by the Provider, the risk of accidental loss or deterioration of the Hardware shall pass to the Customer. Upon the Customer's written request, the Provider shall take out appropriate freight insurance at the Customer's expense.
(3) The delivery period can be found in the offer of the supplier.
(4) If the Supplier, despite exercising reasonable care, is prevented from fulfilling its obligation due to force majeure, in particular due to the occurrence of unforeseeable, extraordinary circumstances (e.g. power supply difficulties, strike or lockout, operational disruptions), the delivery period shall be extended to a reasonable extent. If in such cases the delivery and performance becomes impossible for the supplier, the supplier shall be released from its performance obligations.
(5) The Customer's claims for defects shall be subject to the Customer having complied with its statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the examination of the delivered hardware or later, the Provider shall be notified thereof in writing without undue delay. The notification shall be deemed immediate if it is made within two weeks. The timely dispatch of the notice of defect by the customer shall be sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer shall give written notice of obvious defects (including incorrect and short deliveries) within two weeks of delivery of the hardware, whereby timely dispatch of the notice by the Customer shall also suffice to meet the deadline. If the customer neglects the proper examination and/or notice of defect, the liability of the provider for the undisclosed defect is excluded. Additional guarantees granted by the provider or the manufacturer remain unaffected by the above provision.
§ 10 Maintenance obligations and warranty
(1) During the term of the contract, the Provider shall provide maintenance for the agreed quality of the Software and for the Customer to be able to use the Provider's Software in accordance with the contract without infringing third-party rights during the term of the contract.
(2) With regard to the hardware sold, the Provider shall have a warranty obligation, whereby claims due to defects in the hardware (including documentation) shall become statute-barred one year after delivery to the Customer, unless they are claims due to injury to body, life and health or a defect caused intentionally or by gross negligence on the part of the Provider or the Provider grants the Customer additional warranties. Guarantees of the manufacturer are also not subject to the above limitation.
(3) The Customer is obligated to notify the Provider in writing of any defects in the software and hardware that occur immediately after they are discovered. In doing so, the customer must, as far as possible, also state how the defect manifests itself and has an effect and under what circumstances it occurs.
(4) If there is a material defect in the software during the term of the contract and/or within one year after delivery of the hardware to the Customer and if, in the case of a defect in the hardware, the Customer has complied with its obligations to inspect and give notice of defects pursuant to Section 9 (5) of the GTC, the Provider shall be entitled to remedy the material defect either by providing a new, defect-free subject matter of the contract (e.g., software release, new hardware) or by remedying the defect (subsequent improvement). The Customer shall give the Provider the time and opportunity required for the subsequent performance owed; in particular, the Customer shall hand over the hardware subject to complaint to the Provider or a delivery service commissioned by the Provider for testing purposes. The Provider shall bear the expenses incurred in the course of remedying the defect, in particular transport, travel, labor and material costs, provided that a defect actually exists. Any additional expenses incurred by the Provider due to the fact that the hardware was taken by the Customer to a location other than the Customer's registered office shall be borne by the Customer. The removal of defects by the provider can also be done by telephone or written or electronic instructions to the customer. The Provider provides service or support on working days (Monday-Friday) from 09:00-16:00 CET online via its website (contact field Support). In case of replacement of hardware, the Customer shall return the defective hardware to the Provider in accordance with the statutory provisions.
(5) If the Provider is unable to rectify a material defect in the software or hardware within a reasonable period of time or if the rectification or new delivery is deemed to have failed for other reasons, the Customer may choose to withdraw from the contract or reduce the remuneration. The exercise of the aforementioned rights is only permissible if the provider has been given sufficient opportunity to rectify the defect and this has failed. It shall only be assumed that the rectification of defects has failed if it is impossible, if it is refused or unreasonably delayed by the provider, if there are reasonable doubts regarding the prospects of success or if it is unreasonable for the customer for other reasons. In any case, the customer may only exercise the aforementioned rights if the customer has set the provider a reasonable deadline in writing to remedy the defect and this has failed. The customer is not entitled to withdraw from the contract or exercise the rights if
the defect is insignificant.
(6) Insofar as the contractual use of the software/hardware and/or other services or performances provided by the Provider leads to the infringement of copyrights and/or other industrial property rights of third parties, the Provider shall, at its own expense and at its own discretion, either procure for the Customer the right to continue to use the software/hardware or other services or performances in accordance with the contract or modify or replace the software/hardware or other services or performances in a manner that is reasonable for the Customer in such a way that there is no longer any infringement of third party rights. If this is not possible under economically reasonable conditions or within a reasonable period of time, both the Customer and the Provider shall be entitled to withdraw from the contract immediately. Due to defects in the delivered hardware (including documentation), the warranty obligation for the Provider shall only apply if the Customer's warranty claims are not statute-barred (cf. § 10 paragraph 2 of the GTC) and the Customer has fulfilled its inspection and notification obligations pursuant to § 9 paragraph 5 of the GTC.
(7) If third parties assert claims that prevent the Customer from exercising the powers granted to it under the contract with respect to the subject matters of the contract, the Customer shall inform the Provider immediately in writing and comprehensively. If the Customer is sued on the basis of the contractual objects of the Provider, the Customer shall coordinate with the Provider and shall take legal actions, in particular acknowledgements and settlements, only with the Provider's consent. The provider is obligated to indemnify the customer from all costs and damages incurred in connection with the defense of the claim, insofar as these are not based on the customer's conduct in breach of duty and are based on undisputed or legally established claims. The customer hereby authorizes the provider, at his request, to conduct legal actions based on the contractual objects against third parties judicially and extrajudicially alone.
(8) If it turns out that a reported problem is not due to a defect in the Provider's products and/or services, the Provider shall be entitled to charge for expenses incurred in analyzing and eliminating the problem in accordance with the then current price lists for the Provider's corresponding services if the Customer recognized or negligently failed to recognize that a defect was not present.
(9) The repair or warranty obligation shall not apply if changes are made to the contractual objects without the express written consent of the Provider, or if the Software is used in a manner other than that intended, unless the Customer proves that these facts have no connection with the error that occurred.
§ 11 Limitation of liability for damages
(1) The liability of the Provider for damages on any legal grounds is limited in accordance with the following provisions:
(2) The liability of the Provider for damages caused by the Provider or one of its vicarious agents or legal representatives intentionally or through gross negligence is not limited.
(3) In the event of damage resulting from injury to life, limb or health, the liability of the Provider or a legal representative or vicarious agent of the Provider shall in no event be limited.
(4) Liability is also not limited for damages caused by serious organizational fault of the provider, as well as for damages caused by the absence of a guaranteed quality of the subjects of performance.
(5) In the event of a breach of material contractual obligations by the Provider or by one of its vicarious agents or legal representatives, liability shall be limited to the foreseeable damage typical for the contract if none of the cases specified in the above paragraphs (2) - (4) apply; material contractual obligations are obligations whose fulfillment is essential for the proper performance of the contract and on whose fulfillment the contractual partner may regularly rely.
(6) Any further liability for damages is excluded, in particular the strict liability of the Provider according to § 536a para. 1, 1st alternative BGB (German Civil Code) due to defects already existing in the contractual objects at the time of the conclusion of the contract, whereby the warranty and maintenance obligations of the Provider remain unaffected.
(7) Liability under the Product Liability Act shall remain unaffected.
(8) If damage is attributable to both the fault of the Provider and the fault of the Customer, the Customer must allow his contributory negligence to be taken into account.
§ 12 Hardware disposal
The customer undertakes to properly dispose of the delivered hardware after termination of use in accordance with the statutory provisions at its own expense. The customer shall indemnify the supplier against the obligations pursuant to § 19 ElektroG and any related claims of third parties.
§ 13 Data protection
(1) The processing of personal data is carried out in strict compliance with the relevant statutory provisions (in particular the German Federal Data Protection Act (BDSG) and the EU Data Protection Directive).
Regulation (GDPR)) and the provisions of this contract. The details of the provider's own processing of the customer's personal data are set out in the annex to this contract.
(2) The details of the Provider's commissioned processing for the Customer shall be regulated in a separate commissioned processing agreement (AVV).
§ 14 Set-off, right of retention
(1) The Customer may only offset claims of the Provider against counterclaims that are undisputed, legally established or ready for decision.
(2) The customer shall only be entitled to exercise a right of retention insofar as the counterclaim on which it bases the right of retention is undisputed, legally established or ready for decision and is based on the same contractual relationship.
§ 15 Term of contract, termination
(1) The contract for the use of the contractual objects is valid for a limited period of time. Please refer to the individual products in your offer for the notice periods.
(2) The right of each contracting party to terminate the contract extraordinarily and without notice in the event of good cause shall remain unaffected.
(3) Cancellations must be declared in writing by registered mail.
(4) When the termination takes effect, the Customer's access to the Provider's software shall be blocked and any content still stored there shall be deleted or blocked until the expiry of any statutory retention obligations. The Customer is therefore required to make copies of all data stored by it on the Provider's systems and to save them on its own systems before the end of the contract term.
§ 16 Applicable law
All disputes arising from the legal relationship between the parties shall be governed exclusively by the laws of the Federal Republic of Germany. The validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
§ 17 Jurisdiction
(1) For disputes arising from or in connection with the services of the Provider and/or these GTC, the courts at the registered office of the Provider shall have exclusive jurisdiction, provided that the Customer is a merchant or the Customer is a legal entity under public law or a special fund under public law or the Customer does not have a permanent place of residence in Germany, the Customer has moved its place of residence or habitual abode abroad after these GTC have become effective or if the place of residence or habitual abode of the Customer is unknown at the time the action is brought.
(2) The Provider shall remain exclusively entitled to bring or initiate legal action or other legal proceedings at the Customer's general place of jurisdiction. If the Provider brings an action at the Customer's general place of jurisdiction, the Customer shall not be entitled to bring a counterclaim at this place of jurisdiction. Rather, the customer shall assert its claims separately at the exclusive place of jurisdiction agreed in paragraph 1.
(3) The right of the parties to seek interim relief before another court shall not be affected by the above agreement on the place of jurisdiction.
§ 18 Severability clause
Should individual provisions of these GTC be invalid or lose their validity due to a circumstance occurring at a later date, the validity of the rest of this contract shall remain unaffected.
§ 19 Written form clause
(1) Legally relevant declarations and notifications to be made by the Customer to the Supplier after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(2) All other agreements between the parties, with the exception of the Provider's separate agreement on commissioned processing (AVV), must be in writing. This shall also apply to any amendment of this written form clause.
Attachment: Information pursuant to Article 13 of the EU General Data Protection Regulation (GDPR)
We take the protection of your personal data very seriously. Data is "processed" by us in accordance with the applicable statutory data protection provisions, in particular in accordance with the European Data Protection Regulation (hereinafter referred to as: DSGVO) and the country-specific data protection provisions.
Definitions
"Personal data" means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
"Processing" means any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, filing, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Below you will find our data protection notice in accordance with Article 13 DSGVO regarding the processing of your personal data:
Person in charge of data processing
The data controller is:
Beyond.Host GmbH
Lindenweg 4
82284 Grafrath
Michael Tischer
Tel. 0173 3522791
E-Mail: tischer@beyond.host
Purposes of processing and duration of processing
We process your collected data for the fulfillment of the contract or for the implementation of pre-contractual measures, which are carried out at your request. Otherwise, your personal data will only be processed for other purposes in order to defend or assert legal claims (verification purposes) or to fulfill legal obligations (e.g. retention obligations) or if you expressly consent.
The details of the processing of your data on behalf are regulated in a separate agreement on commissioned processing (AVV). In the event of collisions between the GCU and this data protection information, the contractual provisions of the GCU shall apply.
If the processing purpose for the processing of your personal data ceases to apply, your personal data stored by us will be deleted. If individual data is retained due to legal retention periods and/or for verification purposes, the deletion will be replaced by the blocking of the data. The data to be retained may then be processed exclusively for verification or retention purposes.
Disclosure of your data to third parties
Your data will not be passed on to third parties, unless we have to pass on your data to third parties for the fulfillment of the contract, for verification purposes or due to mandatory legal obligations, or unless you expressly consent to the passing on of your data to third parties.
Legal bases of data processing
The processing of your collected data for the performance of the contract or for the implementation of pre-contractual measures, which take place upon your request, is based on the legal basis of Article 6(1)(b) DSGVO. The processing of your data on the basis of explicit consent is based on the legal basis of Article 6(1)(a). Processing of your data on the basis of our legitimate interest is based on the legal basis of Article 6(1)(f), and we will inform you of our legitimate interest if we base data processing on this legal basis.
Right of objection
You have the right to object at any time, on grounds relating to your particular situation, to the processing of personal data concerning you which is carried out on the basis of Article 6(1)(e) or (f) DSGVO.
In this case, we will no longer process your personal data unless we can demonstrate compelling legitimate grounds for the processing which override your interests, rights and freedoms, or the processing serves the purpose of asserting, exercising or defending legal claims.
Your right to withdraw consent
You may revoke any consent expressly given to us under data protection law at any time with effect for the future. The lawfulness of the processing carried out on the basis of the consent until the revocation is not affected by the revocation. Please send us your request to our contact details given under the item "Person responsible".
Your further rights as a data subject of the data processing
In addition to your right to object and to withdraw consent, you have the following rights vis-à-vis us
the rights listed below at any time:
- Right to information according to Art. 15 DSGVO
- Right to rectification according to Art. 16 DSGVO
- Right to deletion according to Art. 17 DSGVO
- Right to restriction of processing pursuant to Art. 18 DSGVO
- Right to data portability according to Art. 20 DSGVO
Please send us your request by to our contact details given under the item "Person responsible".
Legal or contractual requirements to provide your personal data as well as information about the necessity for the conclusion of the contract as well as about your obligation to provide the personal data and possible consequences of not providing it:
We collect and process your personal data in particular for the fulfillment of a contract with you or for the implementation of pre-contractual measures that take place at your request. In some cases, the provision of personal data for the conclusion of contracts (e.g. for invoices) is required by law due to tax and/or commercial regulations, otherwise it is a contractual or pre-contractual obligation. If you do not provide us with personal data, this means that we cannot conclude a contract with you and/or answer your inquiries.
Complaints about data protection violations to the supervisory authorities If you believe that your data protection rights have been violated, you can contact the supervisory authority in your federal state or the federal state where our company is located. If a complaint concerns a company that has its registered office in another federal state, the supervisory authority will forward the complaint to the supervisory authority responsible there. The supervisory authority of our registered office is as follows:
Bavarian State Office for Data Protection Supervision
Promenade 18
91522 Ansbach
Germany
Phone: +49 (0) 981 180093-0
Fax: +49 (0) 981 180093-800
E-Mail: poststelle@lda.bayern.de
Homepage: https://www.lda.bayern.de/
Status of the GTC and the data protection information: 15.02.2022