1. General provisions
1.1. All legal transactions between the customer (customer) and ASOFTNET GmbH & Co. KG (ASOFTNET) shall be governed by the General Terms and Conditions in their current version.
1.2. The GTC also apply to all future contractual relationships, even if no express reference is made to them in additional contracts.
1.3. Conflicting GTC of the customer are invalid unless they are expressly recognized by ASOFTNET in writing.
1.4. The type and scope of the services to be performed and the remuneration for ASOFTNET shall be determined by separate agreement or an offer.
1.5. The documents belonging to an offer by ASOFTNET (technical data, drawings, drafts etc.) are not guarantees of properties unless they are expressly designated as such in writing.
1.6 Working days within the meaning of these General Terms and Conditions are the weekdays Monday to Friday excluding public holidays.
2. Contractual obligations of ASOFTNET
2.1. The scope of a specific consultancy order shall be contractually agreed on a case-by-case basis.
2.2. ASOFTNET is entitled to have the tasks incumbent on it performed in whole or in part by third parties. Payment of the third party shall be made exclusively by ASOFTNET itself. There is no direct contractual relationship of any kind between the third party and the customer.
2.3. In the event that customer data is stored on ASOFTNET's servers, ASOFTNET shall ensure proper data backup through regular back-ups. Claims for damages for the loss of stored data are limited in amount to the damages foreseeable and typical for the contract at the time of conclusion of the contract. ASOFTNET shall provide the customer with instruction on how to back up its own data if required and at the customer's request. In the event of data loss the customer undertakes to support ASOFTNET in restoring the data by transferring the data back to ASOFTNET's servers free of charge if and insofar as it is still available to the customer.
3. Contractual obligations of the customer
3.1. The customer must provide ASOFTNET with all access and connections required for the agreed services to the appropriate extent. Any ambiguities in the provision or the delayed provision of information or access can lead to a delay or additional costs, which are to be borne by the customer.
3.2. The customer shall also inform ASOFTNET in good time and without special request of processes and circumstances that lie within its sphere of responsibility and that may be of recognizable significance for the execution of the order.
3.3. The customer is obliged to notify ASOFTNET immediately in a comprehensible form of any defects that occur during use in accordance with the contract, stating the information suitable for remedying the defect. At the request of the supplier this report will be made in writing. The customer must provide ASOFTNET with reasonable support in rectifying the defect.
3.4. Only the contract partner is permitted to use the services provided by ASOFTNET in accordance with the contract. Third parties may not be granted access for a fee or free of charge; this includes access via unsecured networks. Personal access data may not be passed on to third parties and must be protected against access by third parties. If the customer suspects that the access data is being used by a third party without authorization, it must inform ASOFTNET immediately. The customer is obliged to pay fees that a third party has caused through authorized or unauthorized access, unless it can prove that the use is not attributable to it.
3.5. If the agreed services are recurring or ongoing services, the minimum contract term is 36 months, unless otherwise agreed.
3.6. The term and termination options for one-off services are set out in the corresponding offer.
3.7. The contractual relationship can be terminated at the end of this term with one month's written notice. If no notice of termination is given, the contractual relationship shall be automatically extended by a further 12 months.
3.8. This does not affect the right of termination for good cause. Either party may terminate the contractual agreement for good cause.
3.9. The customer undertakes not to enter into any kind of business relationship with persons or companies that ASOFTNET uses to fulfill its contractual obligations during and up to three years after termination of this contractual relationship. In particular, the customer shall not commission these persons and companies with such or similar consultancy services that ASOFTNET also offers.
4. Terms of payment, bearing of costs, prices
4.1. All prices are exclusive of the respective statutory value added tax, even if the value added tax was not expressly stated in the individual case.
4.2. If the parties have not agreed fixed remuneration or if the services are outside the agreed scope of services, ASOFTNET's remuneration shall be calculated on a time and material basis. In this respect the hourly or daily rates valid at the time the service is provided shall apply.
4.3. ASOFTNET is entitled to demand advance payments and/or payments on account for project progress. The amount of these sums results from the offer and the time and schedule or another individual contractual regulation made between the parties. If the project is terminated or canceled by the customer, services ordered but not called up shall be invoiced at 50% of the service amount.
4.4. In addition to the agreed remuneration, ASOFTNET is entitled to demand reimbursement of expenses incurred (e.g. instruction and training, travel expenses and purchasing costs for texts, images, etc.) on presentation of suitable evidence, provided these have been approved by the customer in advance.
4.5. In the case of ongoing services, the monthly prices shall be paid pro rata for the remainder of the month from the start of operational provision. Thereafter, these prices are to be paid monthly in advance. The price shall be calculated pro rata for each day if it is to be calculated for parts of the calendar month. Usage-dependent prices are payable after the service has been provided.
4.6. If costs for installation, assembly and set-up are required to establish operational readiness, these shall be determined according to the respective valid price lists of ASOFTNET. They will be invoiced separately.
4.7. Unless otherwise agreed in individual cases, services shall be provided on account, which shall be payable within 14 days without deduction.
4.8. Default of payment occurs when the payment deadlines resulting from 4.7 of these GTC or stated on the invoices are exceeded.
4.9. In the event of default ASOFTNET shall be entitled to charge interest at a rate of 8% above the respective base interest rate, subject to any further actual damage caused by default.
4.10. If the customer is in arrears with the payment of a not insignificant part of two monthly fees for ongoing services or with a sum amounting to one monthly fee, ASOFTNET is entitled to refuse to provide the service after prior notice. In this case the customer remains obliged to pay the monthly fees. ASOFTNET also reserves the right to terminate the contractual relationship in such cases without notice.
4.11. The same applies if insolvency proceedings have been opened against the customer's assets or these have been rejected due to lack of assets.
4.12. The customer must raise objections to an invoice in writing with ASOFTNET within eight weeks of receipt of the invoice.
4.13. ASOFTNET may change the prices if the statutory VAT rate changes, without this giving the customer a separate right of termination.
4.14. If price increases are necessary for other reasons, for example due to regulatory provisions of the Federal Network Agency or price increases by upstream suppliers, the customer shall be notified of this in writing at least six weeks before the change. The customer shall have a special right of termination, to which he shall be made aware in the notification of change, and if the customer does not terminate the contract by the time of the change, the new prices shall become part of the contract.
4.15. The costs for blocking and any subsequent unblocking shall be borne by the customer if blocking was necessary due to the customer's behavior.
5. Service content for network support
5.1. The maintenance of the customer's IT infrastructure (network support) shall be carried out on the basis of a separate agreement, including a corresponding order data agreement.) As a rule and unless otherwise agreed, it shall be carried out as part of remote access. This takes place by setting up a state-of-the-art encrypted remote data transmission connection between ASOFTNET and the customer's IT location.
5.2. The details of the service content shall be governed by a separate agreement. ASOFTNET shall process proper inquiries in the normal course of business and answer them as far as possible.
5.3. Insofar as contractual objects are to be delivered to the customer, the customer shall bear the costs incurred for this and also the risk.
5.4. The customer shall provide the cooperation services listed in the separate agreement. In particular, the customer shall appoint a responsible contact person who is appropriately qualified professionally and technically and has decision-making powers. Only this person shall address inquiries to ASOFTNET. The customer shall inform ASOFTNET immediately of the change of contact person, at least in text form (e-mail). In particular, the customer shall ensure that after reporting a fault the contact person for queries and suggestions for rectification can be reached by ASOFTNET at least during the agreed service hours, and also outside these hours if the emergency service is used.
5.5. The customer shall permit access to premises and IT infrastructure insofar as this is necessary for the provision of network services by ASOFTNET.
5.6 The customer shall inform ASOFTNET immediately of changes to the operating environment. The customer shall ensure that the maintenance object is only used in an approved operating environment.
5.7. Unless otherwise agreed, the customer shall also store all documents, information and data provided to ASOFTNET in such a way that they can be reconstructed in the event of damage to or loss of data carriers.
6. Performance disruption and liability
6.1. In the event of defective delivery or service ASOFTNET is entitled at its discretion to repair or replace the defective parts free of charge. If the rectification or replacement delivery finally fails, the customer has the right to withdraw from the contract. The repair or replacement shall be deemed to have finally failed after three attempts.
6.2. ASOFTNET is not responsible for disruptions to performance due to force majeure, including strikes, and due to events at ASOFTNET or its vicarious agents that make performance significantly more difficult or impossible for ASOFTNET. This applies accordingly to disruptions to telecommunications systems of third parties that ASOFTNET uses to fulfill its obligations. The customer is entitled to reduce the monthly fee accordingly if a disruption lasts longer than 48 hours at a time.
6.3. f ASOFTNET has taken action on the basis of a defect report without the customer proving a defect, ASOFTNET can demand compensation for its expenses. ASOFTNET may use log files to prove that there is no defect on the part of ASOFTNET.
6.5.ASOFTNET is not liable for damage that is the responsibility of the vicarious agent.
6.6. Liability is also excluded if the defect is due to hardware or software used by the customer or if the customer uses outdated drivers or the PC system is not compatible with ASOFTNET's performance.
6.7. Liability is excluded if the defect is due to incorrect use of the product by the customer.
6.8. ASOFTNET and its vicarious agents shall be indemnified against all third-party claims based on unlawful use of the connection provided. If the customer recognizes or should have recognized that such an infringement is imminent, it must inform ASOFTNET immediately.
6.9. The burden of proof for fault on the part of ASOFTNET lies with the customer
6.10. Separate agreements with the customer or offers can further specify these regulations or result in a different agreement.
7. Data Protection
7.1. ASOFTNET shall observe the statutory provisions on data protection when handling personal data.
7.2. ASOFTNET shall store and process the personal data received or to be collected in the context of this business relationship exclusively for the purpose of executing the order in accordance with Art. 6 Para. 1 (b) GDPR.
7.3. 3 The provision of services is based on the current data protection laws. The customer itself is responsible under data protection law for the processing of data in its area.
7.4. If access by ASOFTNET to personal data in customer systems cannot be ruled out, ASOFTNET shall act exclusively as a commissioned data processor. It will only process and use this data to execute the contract. ASOFTNET shall observe the customer's instructions for handling this data. The customer shall bear any adverse consequences of such instructions for the performance of the contract. The contractual partners shall agree details for the handling of personal data in writing where necessary in accordance with the relevant legal standards.
7.5. ASOFTNET is entitled to make working copies of the files and documents provided by the customer. All data, documents and other objects of any kind provided to ASOFTNET must be returned to the customer on termination of the contractual relationship. The same applies to the work results provided by ASOFTNET within the scope of this contractual relationship. A right of retention - for whatever reason - is excluded.
8. Miscellaneous
8.1. The User is entitled to amend or supplement these GTC at any time with a reasonable period of notice. The Customer shall be notified of the amendment in an appropriate manner. The amendment shall be deemed approved if the Customer does not object in writing within a period of four weeks after notification of the amendment. The customer shall be expressly informed of this consequence when the change is announced. If the customer does not object, the changes shall take effect in accordance with the announcement. However, if the customer objects in due time, ASOFTNET shall be entitled to terminate the contract at the time at which the amended terms are to come into force.
8.2. The exclusive place of jurisdiction for all disputes arising from this contractual relationship is the registered office of ASOFTNET. However, ASOFTNET is entitled to sue at the headquarters of the customer.
8.3. The customer can only offset with a counterclaim if this is undisputed and legally established.
8.4. The customer may not assert a right of retention based on another contractual relationship with ASOFTNET.
8.5. Subsidiary agreements, assurances, amendments and supplements to the contractual agreements require the consent of the parties' legal representatives. For documentation purposes the parties agree that amendments shall be recorded at least in text form.
8.6. This contract is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Erfurt, den 06.04.2021