This Agreement is between Byteplant GmbH Software Solutions & Consulting ("Byteplant"), and the Customer ("Customer"). The Agreement will be effective on the date Customer orders a Byteplant product or service (the "Effective Date"). BY COMPLETING THE ORDER PROCESS, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THE INDIVIDUAL COMPLETING THE ORDER PROCESS REPRESENTS AND WARRANTS THAT HE OR SHE HAS AUTHORITY TO BIND THE CUSTOMER AND ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER.
1.1 Scope of applicationThe following terms shall apply for all contracts, bids, deliveries, and other performances by Byteplant, including those occurring in the future. Supplemental terms for special services provided by Byteplant shall take precedence over these terms. The general terms & conditions of the contracting party shall not apply.
1.2 Bid and orderBids by Byteplant are non-binding. Contracts shall be effective only upon written confirmation by Byteplant or shall come into effect by execution of the order. All agreements, amendments, and supplements must be made in writing. This shall also apply for the cancellation or amendment of this written form clause.
1.3 Payment and Offset
1.3.1 The prices for the products & services to be provided by Byteplant shall be based upon the current price lists of Byteplant, the order confirmation, or the purchase order form. In each case the applicable VAT must be paid in addition to all specified prices.
1.3.2 The "Billing Start Date" for this Agreement shall commence on the Effective Date.
1.3.3 All fees shall be due and payable on the date that Customer places its order and on the first day of each renewal term.
1.4 Default, Withholding of products and services
1.4.1 In the event of default by Customer, Byteplant may demand interest on arrears in the amount of eight percentage points above the applicable base interest rate, as well as compensation for any additional extensive damages.
1.4.2 Byteplant shall have the right to withhold products and services if Customer is in default with payment and fails to pay the amount in arrears despite being advised of withholding of performance. This shall apply mutatis mutandis if and insofar as Customer acts in gross contravention of the contract. Customer's obligation to pay the contractually stipulated prices shall remain unaffected thereby.
1.5 Duties and obligations of Customer
1.5.1 Customer shall be responsible for putting the products & services of Byteplant into operation. Byteplant is prepared to offer support to Customer in this regard. All support services (including, but not limited to, preparation for use, installation and demonstration of operational readiness, instruction, training, or consulting) shall be separately agreed upon and charged based upon actual expenses. If Byteplant performs installations or set-up, then Customer shall confirm the successful completion of such work in writing.
1.5.2 Customer shall appoint a contact person, who is authorized to make decisions or have decisions made without undue delay. The contact person shall be available to Byteplant for providing necessary information. Byteplant shall make use of the contact person if and when this is required for the provision of services. Customer shall also appoint a backup contact person.
1.5.3 Customer shall ensure that competent operational personnel is available if necessary the date the products and/or services will become operational.
1.5.4 The rights to use services and other tasks provided by Byteplant shall be restricted to Customer itself, its employees and consultants performing their respective duties for Customer as well as wholly-owned subsidiaries of Customer. Customer must ensure that only the aforementioned authorized users have access to the network and other services of Byteplant. In particular, forwarding categorization results to thirdparties by Customer is prohibited. Passwords must be kept secret and must be changed if it is determined or suspected that unauthorized third parties have acquired knowledge about them.
1.5.5 If necessary Customer must also pay remuneration as compensation for damages incurred through authorized or unauthorized use by third parties of services provided by Byteplant if Customer is is to be made responsible for such use.
1.5.6 Customer must refrain from any misuse - and any illegal use inparticular - of the services and other tasks provided by Byteplant. Customer must indemnify Byteplant against all claims based upon violation of statutory provisions or infringements of third-party rights through the use of the services and access granted to Customer and must also bear the costs incurred by Byteplant in connection with the allegation or assertion of such an infringement of rights. Other rights and claims of Byteplant remain reserved.
1.5.7 In the event of a disruption of services or the existence of material defects or defects in title Customer agrees to support Byteplant to a reasonable extent in the remedy of such disruptions or defects.
1.5.8 Customer is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of its electronic messaging system. Customer acknowledges and agrees that Byteplant's responsibilities and liability do not extend to the internal management or administration of Customer's electronic messaging system or messages and that Byteplant is merely a data-processor.
1.5.9 Customer agrees that it shall not resell the Services or create or offer derivative versions of the Services either directly or through a third party.
1.5.10 The Services are for use with normal business messaging traffic only, and may not be used for any other purpose.
1.5.11 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTION 1.5, BYTEPLANT SHALL INFORM CUSTOMER THEREOF AND RESERVES THE RIGHT TO SUSPEND THE SERVICES UNTIL SUCH FAILURE IS REMEDIED. NOTWITHSTANDING THE FOREGOING, THE FAILURE OF CUSTOMER TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 1.5 MAY BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
1.6 Availability and disruptions of performance of services
1.6.1 Byteplant shall make its services available 24 hours per day and seven days per week. Should downtimes, bottlenecks or transmission disruptions nevertheless occur, Byteplant shall be liable for such disruptions only in the event of willful misconduct or gross negligence.
1.6.2 Byteplant shall remedy as quickly as possible any disruptions of performance or defects reported by Customer. If it is determined, however, that the cause of the disruption or the defect lies within the Customer's sphere of responsibility and if Customer has been culpably erroneous in causing these circumstances then Customer must bear the costs and expenses incurred to remedy this disruption or defect.
1.6.3 Byteplant shall at times make use of the services of other companies to provide its products and services. Thus partial services, particularly for telecommunications services, are provided by national or international carriers (vendors of network and line capacities). Byteplant shall not be liable for disruptions arising from these services.
1.7 Term of contract and termination of services
1.7.1 Contracts for the use of Byteplant services (involving telecommunications and Internet services) shall be signed with a minimum term of one year. This term shall begin on the date upon which Byteplant makes the respective service available to Customer.
1.7.2 The contract for the use of Byteplant services shall be renewed each year for an additional year unless the contract is terminated with a period of notice of three months effective at the end of the stipulated minimum term of contract or at the end of the renewed term.
1.7.3 The right to termination for good cause shall remain unaffected for both contracting parties. Good cause shall include in particular:actions by Customer in contravention of law and its contractual duties related to the use of services; as long as Customer continues the actions in contravention of law and its contractual duties despite warning; the misuse of network access or services with the intent of disrupting or overloading the technical equipment, as long as Customer continues the misuse of network access or services despite warning;If Customer has submitted an affidavit pursuant to § 807 of the German Code of Civil Procedure (ZPO), compulsory enforcement is executed on its assets, insolvency proceedings on Customer's assets are requested by Customer or are commenced upon request of a third party or the commencement of insolvency proceedings involving Customer's assets are rejected due to lack of assets.
1.7.4 Notice of termination must be given in writing in order to be valid.
1.8 Miscellaneous provisions
1.8.1 Transferring rights and duties from Customers contract to a third party requires the written consent of Byteplant.
1.8.2 The exclusive legal venue for all disputes arising directly or indirectly from the contractual relationship of the parties, of which these terms are a part, is Nuernberg. Byteplant reserves the right, however, to also file suit against Customer in Customer's statutory venue.
1.8.3 Should a provision of the contract, of which these terms are a part, be or become ineffective, this shall not affect the validity of the remaining provisions. If the contract, of which these terms are a part, possesses a matter as to which the contract is silent, the contract shall be supplemented by an arrangement between the parties that would have been made had the parties been aware of this matter when signing the contract.
1.8.4 The contractual relationships between the parties shall be governed by German law. The provisions of the UN Convention on Contracts for the International Sale of Goods shall be precluded.
1.8.5 Disclaimer. BYTEPLANT MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT. TO THE EXTENT ANY EXCLUSION OF IMPLIED WARRANTIES DOES NOT APPLY AS A MATTER OF LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
1.8.6 Limitation of Liability.IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR OPERATION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED THE AMOUNTS PAID HEREUNDER BY CUSTOMER TO BYTEPLANT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSATION OF THE DAMAGES.
1.8.7 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
1.8.8 Amendments. Any amendments must be agreed upon in writing.