Aus Gründen der Rechtssicherheit sind die AGB der Firma SL 365 UK Ltd. mit dem Firmensitz der Muttergesellschaft SL EMEA GmbH in Deutschland nur nach Deutschem Recht auf der Website verfügbar und werden in Englischer Sprache zur Verfügung gestellt.
1. Scope of application, alteration authority, content of contract, change of contractual partner
1.1 In addition to the individual contractual agreements, these General Terms and Conditions of Business (GTC) apply to all contracts, deliveries and other purchases services and rental performances of
SL EMEA GmbH
Koenneritzstraße 29
01067 Dresden
Germany
o Individual contract (order and confirmation of order) for certain services of the SL EMEA GmbH including the annexes (in particular performance specification; manufacturer's conditions);
o Special contractual conditions (SCC) of the SL EMEA GmbH, in particular for certain services, software licence or third-party maintenance and usage conditions and Service Level Agreements (SLA),
o The present General Terms and Conditions.
2. Definitions
”Contractual documents” are the individual contracts including the annexes (in particular specifications) and the appendices to the annexes as well as all agreements and conditions essential to the contract made under these (such as T&C, SCC, SLA).
2.2 ”Service Levels Agreements (SLA)“ are those contained in an individual contract, or the installations (especially of the service description), which define the type and scope of the contractual services in terms of location, time, quality and quantity.
2.3 ”Contractual Services“ are the services to be provided by the SL EMEA GmbH in accordance with the contractual documents.
2.4 ”Confidential Information“ imply all information and documents, including contractual documents, which are either marked as confidential or whose confidentiality is evident from the circumstances or to their nature. Confidential information includes, in particular, technical, business and other information, such as information relating to technology, research and development, products, services, prices of products and services, customers, employees, subcontractors, marketing plans/concepts and financial matters.
2.5 Information which was known to the receiving contracting party before they received it from the other contracting party in the course of the business relationship with the SL EMEA GmbH or which the receiving party developed independently without unauthorised recourse to confidential information of the other contracting party or which the receiving party obtained from a third party is not considered confidential information, which is not bound by any confidentiality restrictions in respect of the use and disclosure of such information and which has obtained the information in accordance with the law or which is or becomes generally known without fault or neglect on the part of the receiving contractual party or which a party has declared in writing to the receiving contractual party that they will not disclose such information.
2.6 Notwithstanding the foregoing, “business and trade secrets" are to be treated as confidential information. A trade secret covers information that
o is not, either in its entirety or in its details, known or readily accessible to persons in the circles which normally handle this type of information and is therefore of commercial value, and
o is subject to appropriate confidentiality measures by its rightful owner.
3. Contract offer, contract conclusion and contract adjustments
3.1 All presentations and other service descriptions are subject to change. A contract is only concluded if the SL EMEA GmbH has accepted the customer's offer (e.g., by concluding an individual contract/confirmation of order) without reservation within 14 working days or begins with the owed performance. In the latter case, the customer waives receipt of the declaration of acceptance.
3.2 The essential contractual regulations are to be recorded in an individual contract (in particular order and order confirmation). If a third party (in particular a sales partner) has participated in the conclusion of the contract, the SL EMEA GmbH does not accept objections of the customer, which the customer derives from an additional contractual relationship with the third party.
3.3 The SL EMEA GmbH must be notified immediately of all facts essential to the business relationship, in particular changes in the company name, name, address, counter account, the ability to dispose of or commit the customer or the persons authorised to represent him as well as notified powers of representation or disposal (in particular contact persons). If the customer culpably fails to notify the change in their contractual data, they are bearing the costs for determining the data necessary for the execution of the contractual relationship.
3.4 If it should turn out that the customer has provided incorrect and/or incomplete information about the provision of the contractual services to the SL EMEA GmbH or has not provided essential information about the provision of the contractual services in full or in part despite a written request from the customer, and if the SL EMEA GmbH incurs additional costs as a result of the inadequate provision of information, which could not be foreseen before the contract was concluded, the SL EMEA GmbH is entitled to demand renegotiations with the aim of an appropriate and reasonable adjustment of the remuneration and/or service description for the customer. If the contracting parties are not able to agree within a period of 14 working days after the request for renegotiation, the SL EMEA GmbH is entitled to suspend the contractual services and/or to terminate the contract completely or partly for good cause.
4. Mediation of third-party services (in particular financing, leasing)
4.1 The services of the SL EMEA GmbH may include the arrangement and conclusion of third-party services (such as in particular financing contracts). The contractual partner for the provision of such services is the respective company or institute specified in the contractual documents and not the SL EMEA GmbH. The SL EMEA GmbH is not entitled and obliged to represent the contractual partner of the financing contracts in legal transactions.
4.2 If the services of the SL EMEA GmbH are bound to the conclusion of a separate financing contract (e.g., by banks or financial services companies), the conclusion of the contract with the SL EMEA GmbH is subject to the condition precedent (§ 158 paragraph 1 German Civil Code) of the legally effective conclusion of the mediated third-party contract.
4.3 The SL EMEA GmbH is entitled to demand compensation for the damages incurred and for which the customer is responsible if the third-party contract is not concluded, and the conditions are not met.
4.4 The customer is aware that the SL EMEA GmbH acts only as an intermediary in the cases described in this paragraph. Contract-relevant declarations of intent such as terminations are to be addressed to the contractual partner of the service.
5. General performance obligations of the SL EMEA GmbH
5.1 The SL EMEA GmbH provides in particular services to the customer regarding the delivery of standard hardware or software on a permanent or temporary basis. The services to be delivered by the SL EMEA GmbH are specified in the contract documents.
5.2 Unless otherwise agreed upon, the following regulations apply with regard to the respective service components: If the transfer of hardware or software has been agreed upon, the following shall apply in addition to the provisions on the granting of rights (see clause 11.) and subordinated to the manufacturer's conditions: The software is provided to the customer for use as intended. They are entitled to make one copy of the software for backup purposes and, if agreed, to manufacture copies for software distribution. The duplication of the software for the purpose of proper data backup is part of the intended use. If the rights of use are limited to a contractually defined hardware and/or software environment, any use deviating from this requires the consent of the SL EMEA GmbH .The customer is responsible for the installation of the provided software. As far as the SL EMEA GmbH is obliged to provide services (e.g., support/maintenance or services), the customer is responsible for the performance and success.
5.3 As far as the SL EMEA GmbH provides additional services free of charge, the customer has no claim for performance. SL EMEA GmbH will inform the customer about the discontinuation of the free services as far as possible.
5.4 The SL EMEA GmbH will, within the scope of technical and organisational possibilities, use the latest version of the third-party services used for the provision of services if this is reasonable for the customer (equivalent fulfilment of the performance characteristics).
5.5 The customer is aware that the services of the SL EMEA GmbH may contain modules or elements of free or open-source software.
5.6 The SL EMEA GmbH will inform the customer immediately if the customer's specifications are faulty, incomplete, contradictory or objectively not executable or provided system components are not in accordance with the contract. However, it shall not be obliged to examine and check the specifications and supplies to a greater extent than is necessary for the preparation of the contractual service components.
5.7 The customer is aware that the services of the SL EMEA GmbH may be subject to changes due to new technical developments and possible new legal and/or official regulations. Services for the customer can therefore be adapted by the SL EMEA GmbH to the respective technical development status. This does not apply if the performance of the agreed services is not unreasonably impaired or impossible and the adaptation is not reasonable for the customer considering all circumstances or their legitimate interests.
5.8 The SL EMEA GmbH is entitled to relocate the places of performance which deviate from its location(s) if there is an important reason. In case of a relocation to another country which is not a member state of the European Union or the European Economic Area, the customer has to be informed to the extent possible.
5.9 Performance dates and deadlines are only binding if they have been confirmed in writing by the SL EMEA GmbH and the customer of the SL EMEA GmbH has been informed or provided in time with all information and documents required for the performance of the services, any agreed down payments have been paid as agreed, permits and releases have been issued and any other required cooperation has been provided. In the case of additional or extension orders placed after the conclusion of the contract, the deadlines shall be extended accordingly. If the customer does not sufficiently fulfil their obligations to inform and cooperate (e.g., according to 3.3) and if the performance of the contractual obligations of the SL EMEA GmbH is delayed, the agreed deadlines are automatically extended appropriately, at least by the period of the delay.
5.10 If the customer is required to cooperate in order to establish the readiness for performance/ usability of the service owed by the SL EMEA GmbH (e.g., the composition, maintenance, compatibility of IT systems, the provision of interfaces and/or documentation, as well as the access to the respective IT systems), the SL EMEA GmbH does not owe these services. If support services are offered by the SL EMEA GmbH and the customer wants to make use of them, a separate contractual agreement has to be made.
5.11 The availability of services guaranteed by the SL EMEA GmbH is regulated in the contract documents, in particular the SCC or performance specifications/ SLAs. Excluded from this are times in which the availability cannot be maintained due to technical or other problems that are not within the sphere of influence of the SL EMEA GmbH (including force majeure see 2.23 fault of third parties and planned maintenance work, etc.). The service levels can be changed in agreement with the customer, as far as this is necessary due to changing operational and technical requirements of the customer or for the continuous improvement of the contractual services. The adjustment may only be rejected by the customer for important reasons. Point 3.4. sentence 2 shall apply accordingly in the event of rejection.
5.12 The SL EMEA GmbH may temporarily suspend or restrict access to the services if the security of network operation, the maintenance of network integrity, in particular the avoidance of se-rious disturbances of the network, the interoperability of the services and/ or data protection requirements make this necessary.
5.13 The SL EMEA GmbH will carry out necessary maintenance work on contractual services (in particular IT systems), as far as this is possible, during periods of low usage. The customer does not have the right to refuse the maintenance work prescribed, required or prescribed by the third-party manufacturers and the resulting restrictions on the availability of the IT systems or to define the time and duration of such maintenance work. Should longer temporarily service suspensions or restrictions be necessary, the SL EMEA GmbH will inform the customer about the type, extent and duration of the impairment 10 days in advance, as far as this is objectively possible according to the circumstances and the information would not delay the removal of already occurred interruptions.
5.14 Unforeseeable, unavoidable events that are beyond the control of the SL EMEA GmbH and for which the SL EMEA GmbH is not responsible, such as force majeure according to 2.23, release the SL Germany from the obligation to perform for the duration of these events. Agreed performance deadlines are extended by the duration of the disruption; the customer will be informed of the occurrence of the disruption in an appropriate manner. If the end of the disturbance is not foreseeable or if it lasts longer than one month, each party is entitled to terminate the contract. This applies accordingly if the circumstances mentioned occur at a subcontractor of the SL EMEA GmbH.
5.15 If the SL EMEA GmbH is dependent for the provision of its services on delivery items/services which they do not provide itself and which are not in stock or cannot be procured at the time the order is placed, the SL EMEA GmbH is entitled to withdraw from the individual contract, if the SL EMEA GmbH is not supplied by its supplier/subcontractor, is not responsible for the non-supply or if the SL EMEA GmbH cannot procure the services despite reasonable efforts or at substantially increased market prices (compared to the usual market prices). The SL EMEA GmbH will inform the customer immediately about the unavailability of the services and will refund the customer for any services already rendered.
5.16 If the customer is subject to (e.g., sovereign) obligations of undertaking in connection with the use of the contractual services or is obliged to make reports to public authorities (e.g., ministries, supervisory authorities) or other third parties, the SL EMEA GmbH will provide all necessary information available to them and support the customer at their expense.
6. General duties/obligations of the customer
6.1 The customer is obliged to pay the remuneration owed.
6.2 The customer assures that the data/ information they provide to the SL EMEA GmbH is correct and complete. The customer commits himself to confirm the actuality of the data/ information to the SL EMEA GmbH within 14 days after receipt—without prejudice to 3.3 and 3.4—upon request.
6.3 The customer is obliged to keep any passwords received from the SL EMEA GmbH for the purpose of access to its services strictly confidential, to inform the SL EMEA GmbH immediately as soon as they become aware that unauthorised third parties have gained knowledge of the password and to change it immediately or have it changed by the SL EMEA GmbH, if they have a reason to suspect that unauthorised third parties have gained knowledge of it. If, through the fault of the customer, third parties misuse the passwords (access data) to use the services of the SL EMEA GmbH, the customer is liable, among other things, for the remuneration and any resulting claims for damages.
6.4 The customer guarantees that within the scope of the services provided by the SL EMEA GmbH, competent and qualified contact persons are available, in particular for the coordination of the tasks and for queries. The customer will take organisational measures to ensure that the employees assigned by the customer within the scope of service provision are exclusively subject to the customer's right of direction and disciplinary authority. Instructions are given exclusively within the scope of the agreed distribution of tasks.
6.5 If the customer's cooperation is required to establish the readiness to perform/ serviceability of the service owed, this must be provided without delay (see also 5.9, 5.10, 9.).
6.6 The customer will support the SL EMEA GmbH in the execution of the contractually owed services to the necessary extent, in particular they will provide the necessary data and (confidential) information, furthermore they will take the necessary measures so that the SL EMEA GmbH or its subcontractors can access the technology of the customer and their system environment/IT systems by remote access.
6.7 The customer is responsible to ensure that the services covered within the contract can be provided in accordance with the applicable legal and sovereign framework conditions relevant to their provision (e.g., regulatory requirements). The customer is monitoring the applicable legal framework and shall notify the SL EMEA GmbH in writing of any changes without delay after their announcement, stating any possible impacts on the services.
6.8 Insofar as the customer is subject to export or exporting restrictions (in particular so-called "dual-use goods", embargoes) within the scope of the services requested by them, they are responsible for compliance with the provisions of foreign trade law. The SL Deutscland GmbH is not obliged to provide such contractual services after detection of violations.
6.9 The customer is responsible for the administration, configuration, maintenance and care of the service content (e.g., entered data/ information and not the infrastructure to be provided by the SL EMEA GmbH by contract). The SL EMEA GmbH is not obliged to monitor the information transmitted and stored by the customer or to search for circumstances that indicate illegal activities. If these services are also provided by the SL EMEA GmbH, a separate agreement is necessary.
6.10 The customer is not allowed to violate legal prohibitions, common decency and rights of third parties (brands, name rights, copyrights, data protection rights etc.) by the measures initiated by them in relation to the service provision by the SL EMEA GmbH.
6.11 If the customer violates one or more of the obligations according to 6.7 to 6.11 or if third parties provide evidence of such a violation, the SL EMEA GmbH is entitled to immediately block the provision of services as long as the violation of rights or the dispute with the third party continues. The customer has to be informed about this—if possible in advance. The blocking is to be limited according to the technical possibilities and the cause reasonable to certain services. It may only be maintained as long as the reason for the blockage continues.
If the customer continues the violation in spite of a warning or notice and/or is a continuation of the contractual relationship no longer reasonable for the SL EMEA GmbH, the SL EMEA GmbH may terminate the contract for good cause. Further claims for damages remain unaffected.
6.12 It is the customer's responsibility to carry out adequate data backups and to properly maintain and service the service environment or IT systems, unless this is part of the contractual services to be provided by the SL EMEA GmbH If the customer realises that the data backup measures of the SL EMEA GmbH do not correspond to a proper data backup, they have to inform the SL EMEA GmbH immediately in writing about this and the consequences recognisable to them.
6.13 The services of the SL EMEA GmbH do not release the customer from their obligation to comply with the usual and accepted security standards, such as the use of regularly updated anti-virus programs, a plausibility check for incoming data, data backup (unless the SL EMEA GmbH has taken over these services for the customer) as well as the regular change of passwords and a usual admission and access control.
6.14 The customer commits to release the SL EMEA GmbH from all claims that are asserted against the SL EMEA GmbH due to violations of the conditions above (Section 6.).
7. Prices and terms of payment
7.1 If the contracting parties have not agreed on a specific price, the price is to be determined in accordance with the price list of the SL EMEA GmbH valid at the time of conclusion of the contract or, if no such list exists, in accordance with the common remuneration (within the meaning of §§ 612 Para. 2 or 632 Para. 2 [German Civil Code]) plus incidental costs (e.g., packaging, transport and transport insurance costs and the statutory value added tax). Discounts are not granted.
7.2 Unless otherwise agreed in individual cases, the following terms of payment apply:
The SL EMEA GmbH will send the customer an invoice for the services rendered within the contract. Services can be invoiced to the customer directly after delivery/performance of services for the contractual services rendered, or either subsequently or in advance. Such claims are due and have to be paid upon invoicing unless the SL EMEA GmbH specifies a payment period in the invoice. If the customer fails to make their payment within 10 days of receipt of the invoice or within the payment period stated in the invoice, or if the customer fails to make their payment within a payment period otherwise agreed, the customer is without any further reminder in default according to Section 286 (2) No. 1 or 2 of the German Civil Code, with the consequence that default interest are owed according to Section 288 (2) German Civil Code.
If the customer defaults on their payment obligations, the SL EMEA GmbH will charge a reminder fee (of at least 3.00€) for each reminder in addition to the payment owed according to § 288 paragraph 5 German Civil Code. The SL EMEA GmbH reserves the right to assert further damages caused by delay.
7.3 The customer has to raise objections against the billing of the services provided by the SL EMEA GmbH in writing within 10 days after receipt of the invoice. After expiry of the aforementioned period, the invoice is deemed as approved by the customer. The SL EMEA GmbH will inform the customer about the importance of their behaviour by sending the invoice.
7.4 Furthermore, the SL EMEA GmbH is entitled to adjust the fees at most once per quarter according to reasonable judgement (according to § 315 German Civil Code, especially in the case of cost increases of third-party licensors). The price increase requires the consent of the customer if the increase is higher than 8 percentage points. Consent is deemed to have been given unless the customer objects to the price increase within 10 days of receipt of the notification of change. If the customer disagrees to the change within the time limit, the SL EMEA GmbH is entitled to terminate the contract. The SL EMEA GmbH commits itself to inform the customer with the notification of change about the consequences of omission or objection. An increase of the remuneration for goods and services, which are not delivered or rendered within the scope of continuous obligations, will not be made by the SL EMEA GmbH within four months after the conclusion of the contract.
7.5 The customer is obliged to pay the usage fee that results from the authorised or unauthorised use of the contractual services by third parties. This does not apply if they are not responsible for the use.
8. Defaults and warranty
8.1 If the SL EMEA GmbH performs the services owed to a poor extend, the customer is entitled to make warranty claims in addition to the Service Level Agreements (SLA)/ service descriptions.
8.2 Assured characteristics or guarantees (in particular regarding condition and/or durability) are only those which are expressly designated as such. The assurance is valid at the latest until the expiry of the warranty period.
8.3 The customer must inspect the goods or services delivered to them immediately after receipt for defects, in particular for quantity deviations and obvious other defects (within the meaning of § 377 the German Commercial Code (HGB)). For non-obvious defects, the above applies accordingly after detection or grossly negligent failure to detect the defect.
8.4 If the performance deficiencies and/or qualitative deficiencies are due to circumstances for which the SL EMEA GmbH is not responsible, but which originate from the customer's area of risk, the obligation to remedy them does not apply. Any claims therefore do not extend to faulty or insufficient instructions or cooperation of the customer as well as provided system components and such system components that the customer or a third-party changes without the consent of the SL EMEA GmbH. This does not apply if the customer can prove that this change is not the cause of the reported performance disruption and is not due to a previously performed self-execution. Furthermore, the claims do not extend to software which the customer does not use in the agreed system environment or IT systems.
8.5 If the defectiveness of the service is based on the use of software that the SL EMEA GmbH has acquired (or licenced) from third parties for the purpose of using the service, the warranty rights of the customer are limited to the scope of the rights that the SL EMEA GmbH is entitled to towards the third parties. As far as possible, the SL EMEA GmbH is entitled to assign these rights to the customer.
If the customer obtains updates, patches or upgrades of standard software from a third party (e.g., by online download via internet or changes of the internet browser), the SL EMEA GmbH is not liable for errors and defects or performance disturbances resulting from this without prejudice to clause 13. The customer has to prove that such a disturbance is not based on an update or upgrade obtained from the third party.
8.6 For the examination and/or removal of an actually non-existent performance disruption or one that is based on circumstances for which the customer is responsible, the SL EMEA GmbH can demand an expense allowance based on the currently valid conditions (see 7.1).
8.7 The regulations in 13. remain unaffected by the terms above.
9. Reservation of ownership and right of use
9.1 The SL EMEA GmbH reserves the right of ownership of the delivered goods until all future claims of the SL EMEA GmbH against the customer in relation to the contractual services (especially delivered goods) are settled. In case of open invoices, the reserved property is valid as security for the balance or current account claim of the SL EMEA GmbH.
9.2 The customer is only permitted to sell the contractual services to retention of title, in particular in relation to objects of third parties, in proper business transactions. The customer is not entitled to pledge the services subject to retention of title otherwise, to assign them for security reasons or to make other dispositions that endanger the property of the SL EMEA GmbH.
9.3 The customer already now transfers the claim from the resale to the SL EMEA GmbH; the SL EMEA GmbH accepts this transfer. If the customer sells the reserved services after combination or together with other goods, the assignment of the claim is only agreed to the amount of the part which corresponds to the price agreed between the SL EMEA GmbH and the customer, plus a security amount of 10%.
9.4 The customer is revocable authorised to collect the claims assigned to the SL EMEA GmbH in trust for the SL EMEA GmbH in their own name. SL EMEA GmbH can revoke this authorisation as well as the authorisation for resale, if the customer does not meet their essential obligations, e.g., payment obligations. If the customer does not fulfil their essential obligations, they are obliged to provide the SL EMEA GmbH with the necessary data on request, especially name, address, telephone number of the contractual partner and the services sold to him, so that the SL EMEA GmbH can inform the purchaser of the assignment of the claim and collect the claim itself.
9.5 In the event of seizure or other impairments of the reserved property/rights or the assigned payment claim by third parties, the customer is obliged to draw attention immediately to the reservation of title and the property/rights of the SL EMEA GmbH as well as to the assignment of claims. In addition, the customer is obliged to inform the SL EMEA GmbH immediately by telephone, specifying the exact circumstances, and to inform the SL EMEA GmbH in writing upon request. Furthermore, the customer is obliged to inform the SL EMEA GmbH about the name of the third party or third parties who are carrying out a seizure of property or claims or cause other impairments in such a way that the SL EMEA GmbH is able to protect its legal interests towards the third party. The customer bears the costs of a defence against such access.
9.6 If the realisable value of the securities exceeds the total claims of the SL EMEA GmbH to be secured by more than 10%, the customer is entitled to demand release to that extent.
9.7 The provisions above do apply accordingly to the transfer of rights of use under the copyright law, with the exception of cases of continuing obligations (cf. 11.9).
10. Obligations of the customer to cooperate and provide
10.1 The customer's obligations to cooperate and to provide materials are major obligations to be performed free of charge. The SL EMEA GmbH is not in default if the customer has not fulfilled these obligations as contractually agreed. In case of permanent non-performance of the duties of cooperation and provision by the customer, the SL EMEA GmbH is entitled to give an extraordinary notice of termination of the contract or to withdraw from the contract and to demand immediate payment of the entire agreed remuneration for the remaining term of the contract. In the latter case, the SL EMEA GmbH has to consider the part of the remuneration that is saved for the SL EMEA GmbH as an expense-related cost share due to the customer's non-performance of the contract. The customer reserves the right to prove that the amount of damages is lower.
10.2 The customer can fulfil the obligations to cooperate and provide materials himself or, with the consent of the SL EMEA GmbH, commission third parties to fulfil these obligations.
10.3 The SL EMEA GmbH is entitled to inform the customer separately about the type, scope, timing and other details of the cooperation and provision services to be provided by the SL EMEA GmbH.
10.4 The customer will provide the SL EMEA GmbH ,within reasonable limits, with the information and documentation requested by the SL EMEA GmbH, reasonably required and available to the customer (especially all necessary internal guidelines).
10.5 The customer shall grant those persons of the SL EMEA GmbH and/or third parties commissioned by them access to the premises and provide other work equipment to the extent necessary for the provision of the contractual services.
11. General licence agreements, copyright and rights of use
11.1 The customer may use the services of the SL EMEA GmbH for own purposes. They may only make the services of the SL EMEA GmbH available to third parties if the SL EMEA GmbH has given its consent.
11.2 The customer does not acquire any property rights in the case of the provision of software or hardware by SL EMEA GmbH, with the exception of the permanent provision (sales contract). The following conditions are subordinated to the licence and usage conditions of third parties/software manufacturers (11.4) or EULA. The licence agreements with third parties can be made available to the customer on request.
11.3 The customer guarantees that they have the right (in particular the intellectual property rights) for programs/confidential information, the SL EMEA GmbH comes into contact with, in the course of the execution of the contract, to carry out or have carried out modifications or changes or other services on these programs/information.
Furthermore, the customer ensures that there are no rights of third parties which impede, limit or exclude the contractual use of the contractual services provided by the SL EMEA GmbH, on account of the customer.
11.5 Rights of use to software products of third parties (especially standard software), which are delivered by the SL EMEA GmbH within the scope of the execution of the contract, are transferred to the extent permitted by the manufacturer. The customer ensures that everyone who uses the services of the SL EMEA GmbH and/or third parties complies with these regulations as well as with the licence regulations of the respective manufacturers (e.g., EULA).
11.6 The SL EMEA GmbH is entitled to use the know-how either used or acquired during the provision of the contractual services at its own discretion in its own interest or for the benefit of third parties, provided that no business or financial confidential information or personal data of the customer is used or published.
11.7 The customer may carry out data backups according to the rules of technology and create the necessary backup copies of the programs for this purpose. The customer is obligated to neither change nor remove copyright notices of the SL EMEA GmbH or third parties. The customer is not entitled to use, copy, edit, transfer, convert into another form of expression (especially reverse engineering or decompiling) or translate the contractual services in any other way than described in the licence terms, unless such a conversion is provided by explicit legal regulations. The applicability of §§ 69 d, e German Copyright Act (UrhG) remains unaffected.
11.8 The rights of use shall only be transferred at the time of full payment of the remuneration owed. Up to their complete payment, the SL EMEA GmbH allows the customer the use. The regulations in clause 8. apply additionally.
11.9 As far as the customer has been granted temporary rights of use for the contractual services or the right of use for a limited period of time (i.e., no permanent transfer) ends due to the termination of the contract, the customer has to return or delete the services, possible copies as well as all written documentation and other information/services on request to the SL EMEA GmbH, as far as the customer is not legally obliged to keep them for a longer period of time.
11.10 The SL EMEA GmbH has basically no claim to the use of data, applications, confidential information of the customer. Rights and duties related to this are the exclusive responsibility of the customer. However, the customer grants the SL EMEA GmbH a spatially unlimited, royalty-free, non-exclusive right of use of data/applications and other information comprising all types of use, as far as this is necessary to provide the services according to the contract.
11.11 The SL EMEA GmbH is entitled to have the conformity of the actual use of the contractual services delivered or made available by the SL EMEA GmbH checked by the customer (audit). The review has to be carried out by a person who is obliged to maintain secrecy towards the licensor or the SL EMEA GmbH, who may only disclose information to the extent that licence violations exist and to the extent that this is necessary to prosecute them. The review shall be announced with a notice period of at least 2 weeks. It must be ensured that personal data of third parties are not disclosed to the auditor. The customer will support the auditor appropriately, i.e., in particular provide the necessary information.
11.13 The customer also fully exempts the SL EMEA GmbH from any claims of third parties due to misconduct according to the paragraphs above. Further claims for damages remain unaffected.
12. Infringement of property rights/ right to exemption
12.1 If a third-party asserts claims against the customer due to the infringement of an industrial property right or copyright by the use of the owed services of the SL EMEA GmbH and if their use is impaired or prohibited by this, the following provisions apply.
12.2 The SL EMEA GmbH will, at its own discretion and expense, either modify or replace the agreed services in such a way that they do not infringe the property right, but essentially correspond to the agreed service in a way that is reasonable for the customer or release the customer from licence fees payable to the property right holder or third parties.
12.3 Prerequisites for the liability of the SL EMEA GmbH according to clause 12.2 are that the customer immediately notifies the SL EMEA GmbH of the assertion of third-party claims, does not acknowledge the alleged infringement of property rights and leaves any dispute, including any out-of-court settlements to the SL EMEA GmbH or only conducts such disputes with its consent. If the customer stops the use for reasons of mitigation of damages or other important reasons, they are obliged to point out to the third party that the cessation of use does not imply an acknowledgement of the alleged infringement of property rights.
12.4 As far as the customer is responsible for the infringement of property rights, the claim of third parties is based on the fact that the service content owed by the SL EMEA GmbH was changed without their knowledge, processed in another way and not used with services provided by the SL EMEA GmbH, claims against the SL EMEA GmbH are excluded.
12.5 If applicable legally mandatory liability provision respectively 13. remain unaffected.
13. Liability
13.1 The SL EMEA GmbH is liable, for whatever legal reason, for damages or compensation for wasted expenses to the full extend, only for damages of the customer due to intentional or grossly negligent conduct, fraudulent concealment of a defect, in the case of the assumption of explicit guarantees as well as warranted characteristics of quality and/or durability, for damages from injury to life, body or health, for claims from product liability as well as in the case of mandatory legal regulations.
13.2 In the case of negligent breach of essential contractual obligations (cardinal obligations), SL EMEA GmbH is liable—notwithstanding the cases mentioned in 13.1—only to a limited extent for damages typical for the contract and reasonably foreseeable at the time of conclusion of the contract. Cardinal obligations are obligations whose fulfilment is essential for the proper execution of the contract, whose violation jeopardise the achievement of the purpose of the contract and on whose compliance the contractual partner may rely regularly.
13.3 A foreseeable damage, typical for the contract is considered to be damage amounting to a total of 60 percent of the remuneration paid by the customer to the SL EMEA GmbH in the last twelve (12) months before the occurrence of the respective damaging event. Several cases of damage which have the same cause of damage are regarded as one damage event (continuation of damage).
13.4 Notwithstanding the cases mentioned in 13.1 and 13.2, the SL EMEA GmbH is not liable for loss of profit, indirect damage, consequential damage and claims of third parties with the exception of claims arising from the infringement of third party property rights, as well as for defects that occur in connection with a change made or otherwise initiated by the customer to the services of the SL EMEA GmbH or other external influences and which originate from the customer's area of risk. It is up to the customer to prove that any defects that occur are not causally based on a change in the system environment or other external influences.
13.5 The SL EMEA GmbH is liable for the loss of data or programs, notwithstanding the cases mentioned in 13.1 and 13.2, only up to the amount of damage that would have occurred even if data had been backed up regularly. The aforementioned limitation of liability is therefore particularly valid if the damage is due to the customer's failure to carry out regular data backups and thereby ensure that lost data can be restored with reasonable effort unless the SL EMEA GmbH has taken over the data backup for the customer.
13.6 The SL EMEA GmbH only provides the contractual services for the use of the customer and is not liable for damages that arise for the customer through the use (misuse) of these. In particular, the SL EMEA GmbH does not accept any responsibility for official inspections or audits of third parties (e.g., third software producers) at the customer's site.
13.7 Apart from that, the liability of the SL EMEA GmbH for property damage and financial losses is excluded. As far as applicable, legally binding liability regulations remain unaffected.
13.8 As far as the liability of the SL EMEA GmbH towards the customer is limited or excluded, this applies accordingly to legal representatives, employees, freelancers and other vicarious agents.
13.9 The SL EMEA GmbH has taken out liability insurance for IT operations. It will be maintained during the provision of contractual services.
14. Confidentiality, secrecy, data protection and references
14.1 Confidential information may not be disclosed by the receiving contractual party to third parties without the prior written consent of the contractual party, unless this is required due to mandatory applicable legal requirements or court or regulatory orders and the receiving contractual party has to immediately inform the other contractual party in writing of the respective obligation or the confidential information is made available to the consultants of the receiving contractual party in connection with the interpretation or execution of the contractual documents or any dispute arising therefrom and the consultant has previously agreed in writing to maintain confidentiality towards the receiving contractual party or is already under a professional obligation to maintain confidentiality.
Confidential information of the SL EMEA GmbH or documents and data created on behalf of the SL EMEA GmbH have to be destroyed or deleted by the customer after termination of the contract, as far as there are no legal storage obligations. The customer confirms to the SL EMEA GmbH within thirty (30) calendar days after termination of an individual contract that they have fulfilled the obligations above.
14.2 The customer and the SL EMEA GmbH are mutually obliged to treat all confidential information and business secrets of the other party to the contract, which the other party to the contract makes accessible to the other party on the basis of the initiation and fulfil-ment of the contract, as confidential for an unlimited period of time and to use them only within the scope of the agreed purpose and to observe the applicable provisions of data protection and data security.
14.3 Confidential information may not be processed by
o unauthorised access to, unauthorised appropriation or unauthorised copying of the information carriers containing the confidential information or from which the confidential information can be derived, or
o any other behaviour which, in the circumstances, does not comply with the principle of good faith, having regard to honest market practice.
15. Duration of contract, termination of contract in the case of continuing obligations, legal consequences
15.1 If a continuing obligation is concluded, it runs for the contractually agreed time. If no date for the end of the period of performance is agreed in the contract, the respective performance may be terminated with a notice period of three months to the end of a calendar month, but not before the end of a minimum contractual period agreed in the contract.
15.2 The right to extraordinary termination for good cause remains unaffected. An important reason for the SL EMEA GmbH exists in particular,
o if the customer is more than 30 days in delay with the payment of the contractually owed remuneration or a non-substantial part thereof, or does not pay the SL EMEA GmbH within 10 calendar days upon receipt of the following reminder (the receipt of payment by the SL EMEA GmbH is decisive);
o if the customer violates an essential contractual provision (in particular clause 11);
o if a deletion or liquidation of the customer has been applied for or registered;
o if there is a change in the person of the customer, a sale of the company takes place, or the company law circumstances change in such a way that there are justified doubts about the reliability and performance of the partner (change of control);
o if an application for the opening of insolvency proceedings has been filed against the customer's assets, such an application has been rejected due to lack of assets, executions have been unsuccessful, or enforcement measures have been taken and not cancelled within one month (e.g., lifting of the attachment).
16. Limitation
16.1 According to the legal regulations, claims based on an intentional or grossly negligent action of the SL EMEA GmbH by a legal representative or vicarious agent of the SL EMEA GmbH as well as claims for damages resulting from injury to life, body or health based on an intentional or negligent breach of duty of the SL EMEA GmbH, a legal representative or vicarious agent become time barred.
16.2 For all other contractual and legal claims against the SL EMEA GmbH the limitation period is one year.
17. Guidelines for finance agreements
17.1 The existing General Terms and Conditions apply secondarily to the separately agreed specifications of the financing partners (cf. clause 4).
17.2 In case of an application for financing with a financing partner, the customer is bound to their offer for 5 weeks (cf. clause 3.1 or § 135 German Civil Code).
17.3 Should the financing contract (especially before delivery of the products) be terminated (cancellation or withdrawal), the SL EMEA GmbH is entitled to terminate the procurement contract accordingly.
18. Rights and obligations specified within the contract
18.1 The regulations according to § 536 and 536a German Civil Code are limited to the extent of the rights which the SL EMEA GmbH is entitled to against the manufacturer or the financing partner; as far as possible the SL EMEA GmbH assigns these rights to the customer.
18.2 § 536d German Civil Code or cl. 11. remains unaffected.
18.3 The validity of § 545 German Civil Code in rental contract cases is excluded. The validity of § 545 German Civil Code in rental contract cases is excluded. A termination by the customer according to § 543 para.2 sentence 1 no.1 German Civil Code because of not granting the contractual use is only allowed if the SL EMEA GmbH has been given sufficient opportunity to correct the defect and this correction has failed. A failure of the removal of defects is only to be assumed if it is impossible to perform if it is refused by the SL EMEA GmbH or delayed in an unacceptable way or if it is unreasonable for the customer for other reasons.
19. Final clause
19.1 Changes or additions to the terms and conditions, the contractual documents as well as waivers of the SL EMEA GmbH as an example for the assertion of contractual penalties need to be made in writing. If the SL EMEA GmbH does not insist on the full and/or partial compliance or fulfilment of any of the conditions or provisions of these Terms and Conditions and the Supplementary Regulations, this shall not be construed as an acknowledgement of the breach or waiver of any future application of the relevant condition, provision, option, right or remedy.
19.2 The customer may only set off claims for remuneration of the SL EMEA GmbH with claims that have been legally established or recognised by the SL EMEA GmbH. The assertion of rights of retention must be based on the same contractual relationship.
19.3 The contracting parties undertake to refrain from actively recruiting employees of the other contracting party, either themselves or through third parties, during the term of the contractual relationship and within 12 months after termination of the framework agreement.
19.4 The assignment or pledging of claims or rights of the customer against the SL EMEA GmbH is excluded without the consent of the SL EMEA GmbH. The same applies to a transfer of use (completely or partly) to third parties.
19.5 The law of the Federal Republic of Germany applies exclusively, under exclusion of private international law (in particular the UN Convention on Contracts for the International Sale of Goods, CISG or conflict of laws).
The place of performance and jurisdiction for all disputes arising from or in relation to this contract is the registered office of the SL EMEA GmbH. The SL EMEA GmbH is furthermore entitled to sue the customer at their general place of jurisdiction. Any exclusive place of jurisdiction remains unaffected.
In the event of a dispute arising from the contractual relationship, SL EMEA GmbH and the customer are entitled to seek recourse to the arbitration board “German Association of Law and Informatics” ("DGRI") or, alternatively, to mediation proceedings before legal proceedings are conducted.
The chosen procedure should serve to settle the dispute in whole or in part, provisionally or finally.
19.6 The invalidity, unenforceability or ineffectiveness of individual provisions of these General Terms and Conditions as well as the supplementary regulations, even if these are subsequently included or regulated in a supplement, shall not affect the validity of the remaining provisions. In place of the invalid, void or unenforceable provision, a provision shall be deemed agreed upon which, as far as legally possible, comes as close as possible to what is economically intended according to the meaning and purpose of the invalid, void or unenforceable provision. The same applies
o for unintentional loopholes; in such a case, a provision is considered agreed which comes as close as possible to what would have been regulated according to the meaning and purpose of the present contract if the parties had known of the loophole; or
o a condition should be ineffective with regard to a period of time or a specified behaviour.
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