2.4. The Customer shall only be entitled to set-off if its counterclaim has been legally
established or is undisputed. This exclusion of set-off shall not apply to a counterclaim on account of a defect that is based on the same contractual relationship as the VOSDIGITALS claim. The Customer shall only be entitled to exercise a
right of retention to the extent that its counterclaim is based on the same contractual relationship.
3. Price Changes
VOSDIGITALS shall be entitled after expiry of the basic term and after expiry of each
extension term to change the charges with a reasonable notice period of at least six
weeks with effect from the beginning of the next extension term, provided that the
change is reasonable for the Customer after a comprehensive consideration of the
interests of VOSDIGITALS. In the event of a price change, the Customer shall have the
right to terminate the contract without observing a notice period in the form specified
in Clause 11.2 at the time the change takes effect. This shall not apply if the change
is based exclusively on a change in sovereignly imposed taxes, fees, levies, and contributions or if the change is in the customer’s favour. The customer shall be informed
separately of his right of termination in the notice of change.
4. Data Backup, Customer Cooperation
4.1. The Customer shall be responsible for ensuring regular and appropriate backup
of its data. VOSDIGITALS employees may always assume that all of the Customer’s
data with which they come into contact are backed up; this shall apply particularly in the context of support.
4.2. The customer shall support VOSDIGITALS to a reasonable extent in the performance
of the services at its own expense. The customer’s cooperation services shall
be genuine contractual obligations and not mere obligations. The customer’s
cooperation obligations shall result from the specification, these terms and conditions and/or the supplementary contractual terms and conditions, 11.4.d).
4.3. The customer shall, upon request by VOSDIGITALS or, insofar as is recognisably
necessary for it, in particular
– appoint a person responsible during the term of the contract who has all the
decision-making powers and authority required for the purposes of implementing the contractual relationship;
– if necessary, encourage its employees to cooperate with the person appointed by VOSDIGITALS;
– grant the employees commissioned by VOSDIGITALS to perform the services
(during the customer’s normal office hours) access to the rooms and/or
computers on which the software is stored and/or loaded and to which VOSDIGITALS requires access in order to fulfil its contractual obligations;
– provide VOSDIGITALS with remote access (VPN connection or remote desktop
sharing) at its own expense (including connection costs). In this context,
VOSDIGITALS shall take appropriate measures in accordance with the state of the art to prevent virus infections or other impairments of the customer’s
system by VOSDIGITALS’s systems;
– provide VOSDIGITALS with all necessary information required for the provision
of the services.
4.4. If VOSDIGITALS is of the opinion that the customer is not providing a cooperation
service in accordance with the contract, VOSDIGITALS shall notify the customer of
this without delay and set the customer a reasonable grace period for the provision of the cooperation service; if applicable, VOSDIGITALS shall notify the customer of any adverse consequences of the non-contractual provision of the cooperation service in the context of setting the grace period. As long as cooperation services are not provided in accordance with the contract, VOSDIGITALS shall
be exempt from the relevant performance obligation in whole or in part to the
extent and for as long as VOSDIGITALS is dependent on the respective cooperation.
VOSDIGITALS shall not be responsible for disruptions to performance that arise due
to the customer’s failure to provide cooperation services in accordance with the
contract.
4.5. Any additional effort incurred by VOSDIGITALS as a result of the failure to provide
the cooperation service in accordance with the contract may be invoiced separately by VOSDIGITALS. Any further claims of VOSDIGITALS shall remain unaffected.
5. Notice of defect
5.1. A notice of defect shall contain as detailed a description of the defect as possible. Upon request, the customer shall provide VOSDIGITALS, to the extent possible
and reasonable, with documents and information that VOSDIGITALS requires to assess and remedy the defect.
5.2. The customer shall give VOSDIGITALS the opportunity to check notices of defects. If
the notice of defect turns out to be unfounded, VOSDIGITALS shall be entitled to
demand compensation for the expenses incurred for the inspection, unless the
customer is not responsible for the unfounded notice of defect.
6. Liability
6.1. VOSDIGITALS’s liability for damages and reimbursement of expenses for slight negligence shall be excluded, in particular due to breach of obligations arising from
the contractual obligation and from tort, unless VOSDIGITALS has breached a material contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract or the observance of which
the customer may regularly rely on. In this case, VOSDIGITALS’s liability shall be
limited to the foreseeable damage typical for the contract, the occurrence of
which VOSDIGITALS had to expect at the time of conclusion of the contract on the
basis of the circumstances known to VOSDIGITALS. However, the liability of VOSDIGITALS
for damages arising from injury to body, life or health, for intent and gross
negligence, for the absence of a guaranteed quality and under the Product Liability Act shall be unlimited.
6.2. Damages of up to € 250,000 per damaging event and € 750,000 in total or, if
higher, the remuneration paid or payable in the respective contractual year
shall be deemed to be typical for the contract and foreseeable within the meaning of 6.1.
6.3. Liability on the part of VOSDIGITALS for loss of profit and other pure financial losses
shall be excluded, except in cases of willful intent.
6.4. In the event of a loss of data, liability on the part of VOSDIGITALS shall be limited
to the typical recovery expenses that would be incurred through making regular
backup copies in accordance with the risk involved. Moreover, VOSDIGITALS shall
only be liable provided the Customer has ensured through appropriate data
backup measures that the data can be recovered with reasonable effort. This
clause 6.4 does not apply to Software as a Service/SaaS.
6.5. The aforementioned provisions shall apply accordingly to liability for compensation for wasted expenditures.
6.6. VOSDIGITALS shall not be liable to the Customer for damages that are incurred as a
result of third party companies commissioned by the Customer not providing
their service, providing it late or not providing it properly.
7. Force majeure
Neither party shall be obliged to fulfil its contractual obligations in the event of and
for the duration of force majeure. In particular, the following circumstances shall be
regarded as force majeure in this sense:
– Fire/explosion/flood for which the contracting party is not responsible,
– war, mutiny, blockade, embargo,
– industrial dispute lasting more than 6 weeks and not culpably caused by the
contracting party,
– technical problems of the Internet beyond the control of a contracting party;
this shall not apply if and insofar as VOSDIGITALS also offers the telecommunication service.
Each contractual partner shall inform the other immediately in writing of the occurrence of a case of force majeure.
8. Limitation in Respect of Defect Claims and Claims for Damages
Customer claims in the event of defects shall be limited to one year. The limitation
period shall also be one year for Customer claims for damages and reimbursement
of expenses that are not based on a product defect. However, these reduced limitation periods shall not apply to claims by a Customer on account of injury to life,
health, or body or to claims based on a wilfully or grossly negligent breach of obligation.
9. Export- und Importvorschriften
The Parties shall comply with the import and export regulations of the countries affected by distribution and use of the VOSDIGITALS Software, in particular the U.S., and
shall offer mutual support with procuring documentation such as the necessary end
user certificates, etc., free of charge.
10. Confidentiality and References
10.1. The Parties shall treat as confidential information of the other Contracting Party
that is clearly of a confidential nature or is designated as confidential by the
other Contracting Party, shall not disclose it to third parties, and shall treat it
like their own trade and business secrets. This shall not apply to information if
and to the extent that it is lawfully commonly known, or the other Contracting
Party has consented in writing to its disclosure in individual cases.
10.2. VOSDIGITALS may use Customer names and company logos in a list of customers,
on the VOSDIGITALS website, for example, as a reference and for advertising purposes, as well as on the Internet and in online services, in particular to reproduce, distribute, process, and make these publicly accessible. The Customer
may withdraw its consent with future effect at any time, whereby it shall allow
VOSDIGITALS an appropriate period in which to change and use up printed material.
11. Applicable Law, Severability Clause, Order of Priority
11.1. German law shall apply to the exclusion of the United Nations Convention on
Contracts for the International Sale of Goods (CISG). The place of jurisdiction
for all disputes arising from or in connection with the contractual relationship
shall be the registered office of VOSDIGITALS or, at VOSDIGITALS’s choice, the registered
office of the Customer if the Customer is a merchant, a legal entity under public
law, or a special fund under public law. This shall also apply in cases where a
Customer has no general domestic place of jurisdiction, has moved its place of
residency or habitual abode abroad after concluding a contract, or neither the
Customer’s place of residence nor its habitual abode is known at the time when
legal action is filed.
11.2. In the event that a provision in this Agreement is or becomes invalid, this shall
not affect the validity of the remaining provisions.
11.3. The following order of priority shall apply to arrangements affecting the contractual relationship:
a) Specification (order/confirmation etc.)
b) Annexes to the order
c) These General Terms and Conditions
d) The Supplementary Terms and Conditions Software Use, Service, Maintenance and Support
e) The Product Use Guidelines
f) Statutory provisions