(Terms and Conditions as of 15.11.2017)
The General Terms and Conditions (GTC) govern overarching issues (such as liability and performance disruptions) for all services of ODION GmbH in the same manner. The GTC always apply together with the specific contract conditions, which depend on the type of agreed service. In principle, an individually agreed agreement between the contracting parties always takes precedence over the provisions of the GTC.
Please see the German version as this is the legal binding.
§1 Remuneration, Payment, Performance Protection, Deadlines
(1) Unless otherwise agreed, remuneration is calculated based on effort at the generally applicable prices of ODION GmbH (hereinafter: Provider) at the time of contract conclusion. Remunerations are generally net prices plus legally applicable value-added tax.
The Provider may invoice monthly. If services are remunerated based on effort, the Provider documents the nature and duration of the activities and submits this documentation with the invoice.
(2) All invoices must be paid in full within 14 calendar days of receipt without deduction.
(3) The customer can offset or withhold payments due to defects only to the extent that they actually have payment claims due to material or legal defects of the service. For other defect claims, the customer can withhold payments in proportion to the defect, taking into account §4 para. 1. The customer has no right of retention if their defect claim has expired.
In addition, the customer can only offset undisputed or legally established claims or exercise retention.
(4) The Provider reserves ownership and rights to the services until full payment of the due remuneration, legitimate retention of defects according to §1 para. 3 sentence 2 is considered. Furthermore, the Provider reserves ownership until all claims from the business relationship with the customer have been fulfilled.
The Provider is entitled to prohibit the customer from further use of the services for the duration of a payment default by the customer. The Provider can only exercise this right for a reasonable period, usually not exceeding six months. This does not constitute a withdrawal from the contract. §449 para. 2 BGB remains unaffected.
If the customer or their buyer returns the services, the acceptance of the services by the Provider does not constitute a withdrawal unless the Provider has expressly declared a withdrawal. The same applies to the seizure of reserved goods or rights to reserved goods by the Provider.
The customer may not pledge or assign reserved goods. The customer is only permitted to resell the goods in the ordinary course of business under the condition that the customer assigns their claims against their buyers in connection with the resale to the Provider and transfers ownership to their buyer subject to payment reservation. By entering into this contract, the customer hereby assigns their future claims in connection with such sales to the Provider as security, and the Provider accepts this assignment.
If the value of the Provider's security rights exceeds the amount of the secured claims by more than 20%, the Provider will release a corresponding portion of the security rights at the customer's request.
(5) The customer is obligated to impose contractually agreed restrictions on the recipient when transferring usage rights to deliveries and services.
(6) If the customer fails to settle a due claim by the contractually agreed payment deadline in full or in part, the Provider may revoke agreed payment terms for all claims. Furthermore, the Provider is entitled to provide further services only against advance payment or security through the provision of a guarantee by a credit institution or credit insurer authorized in the European Union. The advance payment must cover the respective billing period or - for one-time services - their remuneration.
(7) In the event of the customer's economic incapacity to fulfill their obligations towards the Provider, the Provider may terminate existing exchange contracts with the customer by withdrawal, terminate continuing obligations by termination without notice, even if the customer files for insolvency. §321 BGB and §112 InsO remain unaffected. The customer will inform the Provider in writing in advance of any impending insolvency.
(8) Fixed performance deadlines should only be expressly agreed upon in documented form. The agreement of a fixed performance deadline is subject to the condition that the Provider receives the services of its respective upstream suppliers on time and in accordance with the contract.
§2 Cooperation, Obligations to Cooperate, Confidentiality
(1) The customer and the Provider each designate a responsible contact person. Communication between the customer and the Provider, unless otherwise agreed, takes place via these contact persons. The contact persons must promptly make all decisions related to contract implementation. The decisions must be documented in a binding manner.
(2) The customer is obliged to support the Provider as necessary and to create all conditions necessary for proper order execution within their sphere of operation. To this end, the customer will provide necessary information and, if possible, enable remote access to the customer's system. If remote access is not possible for security or other reasons, affected deadlines will be extended appropriately; the contracting parties will agree on an appropriate arrangement for further effects. Furthermore, the customer will ensure that qualified personnel are available to support the Provider.
If a contract stipulates that services can be provided on-site at the customer's premises, the customer will provide sufficient workspaces and work materials free of charge upon the Provider's request.
(3) The customer must report defects immediately and in a comprehensible and detailed manner, providing all information relevant for defect detection and analysis in writing. This includes in particular the work steps that led to the occurrence of the defect, the manifestation, and the effects of the defect. Unless otherwise agreed, the corresponding forms and procedures of the Provider are used for this purpose.
(4) The contracting parties are obliged to maintain confidentiality regarding business and trade secrets as well as other information designated as confidential that become known in connection with contract implementation. The disclosure of such information to persons not involved in the conclusion, execution, or settlement of the contract is only permitted with the written consent of the other contracting party. Unless otherwise agreed, this obligation ends five years after the respective information becomes known, but not before the termination of continuing obligations.
The contracting parties will also impose these obligations on their employees and any third parties involved.
(5) The contracting parties are aware that electronic and unencrypted communication (e.g., via email) entails security risks. Therefore, they will not assert claims arising from the lack of encryption in this type of communication unless encryption has been expressly agreed upon beforehand.
§3 Disruptions in Service Provision
(1) If a cause beyond the control of the Provider, including strike or lockout, affects adherence to deadlines ("disruption"), the deadlines will be extended by the duration of the disruption, if necessary, including an appropriate restart phase. A contracting party must promptly inform the other contracting party of the cause of a disruption occurring in its area and the duration of the extension.
(2) If the effort increases due to a disruption, the Provider may also demand remuneration for the additional effort, unless the customer is not responsible for the disruption and its cause lies outside their area of responsibility.
(3) If the customer is entitled to withdraw from the contract due to improper performance by the Provider and/or claim damages instead of performance, or asserts such claims, the customer must, at the request of the Provider and within a reasonable period, declare in writing whether they are asserting these rights or continue to wish for performance. In the event of withdrawal, the customer must reimburse the Provider for the value of previously existing utilization opportunities; the same applies to impairments due to intended use.
If the Provider defaults on performance, the customer's claims for damages and expenses due to the delay are limited to 0.5% of the price for the part of the contractual service that cannot be used due to the delay for each completed week of delay. The liability for delay is limited to a total of 5% of the remuneration for all contractual services affected by the delay; for continuing obligations, this is based on the remuneration for the respective affected services for the full calendar year. In addition, a percentage agreed upon at the conclusion of the contract of the agreed remuneration applies. This does not apply if the delay is based on gross negligence or intent on the part of the Provider.
(4) In the event of a delay in performance, the customer only has a right to rescind the contract within the statutory provisions if the delay is attributable to the Provider. If the customer justifiably claims damages or expenses instead of performance due to the delay, they are entitled to demand 1% of the price for the part of the contractual service that cannot be used due to the delay for each completed week of delay, but no more than 10% of this price in total; for continuing obligations, this is based on the remuneration for the respective affected services for the full calendar year. Additionally, a percentage agreed upon at the conclusion of the contract of the agreed remuneration applies.
§4 Material Defects and Compensation for Expenses
(1) The Provider warrants the contractually agreed quality of the services provided. There are no claims for defects for only insignificant deviations from the agreed quality of the Provider's services.
Claims for defects also do not exist for excessive or improper use, natural wear and tear, failure of system environment components, non-reproducible or otherwise demonstrable software errors by the customer, or damage caused by special external influences not assumed by the contract. This also applies to subsequent changes or repairs by the customer or third parties, unless they make the analysis and elimination of a material defect more difficult.
§5 Legal Defects
(1) The Provider is liable for infringement of third-party rights by its services only to the extent that the services are used in accordance with the contract and in particular in the contractually agreed, otherwise unchanged intended use environment.
The Provider is liable for infringements of third-party rights only within the European Union and the European Economic Area, as well as at the location of the contractual use of the service. §4 para. 1 sentence 1 applies accordingly.
(2) If a third party asserts to the customer that a service provided by the Provider infringes its rights, the customer shall immediately notify the Provider. The Provider and, if applicable, its upstream suppliers are entitled, but not obliged, to defend the asserted claims at their own expense to the extent permissible.
The customer is not entitled to acknowledge third-party claims until it has given the Provider a reasonable opportunity to defend the third-party rights in another manner.
(3) If services provided by the Provider infringe third-party rights, the Provider may, at its own discretion and at its own expense:
provide the customer with the right to use the service;
make the service free of infringement; or
withdraw the service, refunding the remuneration paid by the customer (minus a reasonable compensation for use), if the Provider cannot remedy the infringement in any other way with reasonable effort.
The interests of the customer will be adequately taken into account.
(4) Claims of the customer due to legal defects expire in accordance with §4 para. 2. For claims for damages and expenses of the customer, §6 applies accordingly; for additional expenses of the Provider, §4 para. 3 applies accordingly.
§6 General Liability of the Provider
(1) The Provider is always liable to the customer
for damages caused by itself as well as its legal representatives or vicarious agents intentionally or through gross negligence,
according to the Product Liability Act, and
for damages resulting from the injury to life, body, or health caused by the Provider, its legal representatives, or vicarious agents.
(2) The Provider is not liable for slight negligence, except in cases where it has violated a material contractual obligation, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the customer regularly relies. This liability is limited to typical and foreseeable damages for property and financial losses. This also applies to lost profits and savings not realized. Liability for other indirect consequential damages is excluded.
The liability for a single damage event is limited to the contract value; for ongoing remuneration, it is limited to the amount of the remuneration per contract year, but not less than €50,000. For the limitation period, §4 para. 2 applies accordingly. The contracting parties can agree on extended liability, usually for a separate fee, in writing. An individually agreed liability amount takes precedence. The liability under §6 para. 1 point 2 remains unaffected by this paragraph.
(3) The Provider only liable for damages under a warranty declaration if expressly assumed in the warranty declaration. This liability is subject to the limitations of §6 para. 2 in case of slight negligence.
(4) In case of data loss, the Provider is liable only for the expenses necessary for the restoration of the data if the customer has performed proper data backup measures according to the due diligence obligations corresponding to the type of data before the measure leading to data loss. In case of slight negligence by the Provider, this liability only applies if the customer has performed proper data backup measures according to the due diligence obligations before the measure leading to data loss.
(5) Sections 6(1) to 6(4) shall apply mutatis mutandis to claims for reimbursement of expenses and other liability claims of the customer against the Provider. Sections 3(3) and 3(4) remain unaffected.
§7 Data Protection
The customer will conclude necessary agreements with the Provider for possible access to personal data and will also consider the special requirements for a data processing agreement (§11 BDSG).
§8 Miscellaneous
(1) The customer will independently comply with the import and export regulations applicable to deliveries or services, especially those of the USA. In the case of cross-border delivery or service, the customer bears any customs duties, fees, and other charges incurred. The customer will independently handle legal or regulatory procedures related to cross-border deliveries and services, except as otherwise expressly agreed.
(2) German law applies. The application of the UN Sales Convention is excluded.
(3) The Provider provides its services based on its General Terms and Conditions (GTC). The customer's terms and conditions do not apply, even if the Provider has not expressly objected to them.
Acceptance of the services by the customer constitutes acceptance of the Provider's GTC, waiving the customer's terms and conditions.
Other conditions are only binding if the Provider has accepted them in writing; in addition, the Provider's GTC apply.
(4) Changes and additions to this contract shall only be agreed upon in writing. If written form is agreed (e.g., for terminations, rescissions), text form is not sufficient.
(5) The place of jurisdiction for a merchant, a legal entity under public law, or a special fund under public law is the Provider's registered office. The Provider may also sue the customer at its registered office.
(6) Only the German version of these General Terms and Conditions is legally binding. The English translation is provided for convenience only and has no legal effect.