CodeRoom

General Terms and Conditions for the Use of CodeRoom.de

As of: 15.06.2022

1. Remuneration, Payment, Performance Protection, Scheduling

1.1 Unless otherwise agreed, remuneration will be calculated based on the costs incurred at the prices valid at the time of contract conclusion for the provider. The stated remunerations are gross prices including the statutory value-added tax. The provider may invoice monthly. If services are paid according to the effort, the provider documents the type and duration of the activities and transmits this documentation with the invoice.

1.2 All invoices are due for payment at the latest 14 calendar days after receipt without deduction.

1.3 The customer may only offset or withhold payments insofar as he has actual claims against defects of the performance. For other defect claims, the customer may only withhold payments to a proportionate extent taking into account the defect. Clause 4.1 applies correspondingly. The customer has no right of retention if his defect claim has expired. Otherwise, the customer can only offset with undisputed or finally established claims or exercise a right of retention.

The customer has no right of retention if his defect claim has expired. In all other cases, the customer may only offset with undisputed or finally established claims or exercise a right of retention.

1.4 The provider reserves ownership and rights to be granted for the services until full payment of the owed remuneration is made, taking into account permitted minor reservations in accordance with Clause 1.3, Sentence 2. Furthermore, the provider reserves ownership until all claims arising from the business relationship with the customer are fulfilled.

The provider is entitled to prohibit the customer from using the services for the duration of the payment delay. This right can only be exercised for a reasonable period, usually no more than 6 months. This does not constitute withdrawal from the contract. Section 449 (2) BGB remains unaffected.

If the customer or his buyer returns the services, acceptance of the services does not constitute withdrawal by the provider, unless he has explicitly declared withdrawal. The same applies to the seizure of reserved goods or rights to reserved goods by the provider.

The customer is not allowed to pledge or assign security interests in goods subject to reservation of ownership or rights. The customer is only permitted to resell as a buyer under the condition that he has effectively assigned his claims against his buyers in connection with resale to the provider and has transferred ownership to his buyer subject to payment. By entering into this contract, the customer assigns his future claims arising from such resales to the provider for security purposes, which the provider accepts. To the extent that the value of the security rights of the provider exceeds the secured claims by more than 20%, the provider will release a corresponding proportion of the security rights at the request of the customer.

1.5 The customer is obliged to impose the contractually agreed restrictions on the recipient when transferring usage rights to deliveries and services in accordance with the agreement.

The customer or his buyer returns the services, there is no withdrawal of the provider in the acceptance of the services unless he has explicitly declared withdrawal. The same applies to the attachment of the reserved goods or rights to the reserved goods by the provider.

In the event of economic inability of the customer to fulfill his obligations towards the provider, the provider may terminate existing exchange contracts with the customer by withdrawal, and duration obligations by cancellation without notice, even in the event of a customer’s insolvency application. § 321 BGB and § 112 InsO remain unaffected. The customer will inform the provider in writing at an early stage about impending payment difficulties.

Fixed performance deadlines should be agreed upon exclusively in documented form. The agreement of a fixed performance deadline is subject to the condition that the provider receives the services from his respective suppliers on time and in accordance with the contract.

2 . Cooperation, obligations to cooperate, confidentiality

2.1 The customer and the provider each appoint a responsible contact person. Communication between the customer and the provider takes place, unless otherwise agreed, via these contact persons. The contact persons are required to bring all decisions related to the contract implementation into effect immediately. The decisions are to be documented in a binding manner.

The customer is obliged to support the provider as necessary and create all necessary conditions in their operational sphere for the proper execution of the order. To this end, they will provide necessary information and, if possible, grant remote access to their system. If a remote connection is not possible due to security reasons or other factors, affected deadlines will be extended appropriately; the contracting parties will agree on an appropriate regulation for further effects. The customer will also ensure that qualified personnel are available to support the provider. If agreed upon in the contract, the customer will provide the provider with unencumbered working spaces and equipment at their request.

Unless otherwise agreed, the customer will be responsible for proper data backup and fault tolerance for data and components (e.g., hardware, software) that are commensurate with their nature.

The customer must report defects immediately in a comprehensible and detailed manner, specifying all information necessary for defect recognition and analysis. This includes, in particular, the work steps leading to the occurrence of the defect, its appearance, and its effects. Unless otherwise agreed, the customer will use the corresponding forms and procedures provided by the provider.

The customer will support the provider upon request during examination and assertion of claims against other parties involved in connection with service provision. This applies particularly to the provider’s recourse claims against suppliers.

Confidentiality is required for business secrets and other confidential information (e.g. in documents, data sets) that become known in connection with the contract implementation. The contracting parties are obliged to maintain confidentiality and not use or disclose such information without the written consent of the other contracting party beyond the purpose of the contract.

Unless otherwise agreed, the obligation to maintain confidentiality for other confidential information expires five years after becoming aware of the respective information, but not before the end of a continuing contractual relationship. Business secrets are to be kept secret indefinitely. The contracting parties will also impose these obligations on their employees and any third parties they may engage.

Electronic and unencrypted communication (e.g. via email) is fraught with security risks. The parties will therefore not assert claims due to the lack of encryption, unless encryption was agreed upon beforehand.

3. Service disruptions

If a cause that the provider cannot be held responsible for (including strikes or lockouts) affects the timely delivery („disruption“), the deadlines will be adjusted by the duration of the disruption, including an appropriate restart phase if necessary. A contracting party must immediately inform the other contracting party about the cause of a disruption in their area and the duration of the delay.

If the effort increases due to a disruption, the provider may also claim compensation for the additional effort, unless the customer is not responsible for the disruption and its cause lies outside their sphere of responsibility.

If the customer can withdraw from the contract and/or claim damages instead of performance because of improper service by the provider or claims this, the customer must declare in writing within a reasonable period set by law whether they intend to assert these rights or continue with the service provision. In case of withdrawal, the customer must compensate the provider for the value of previously existing usage options; the same applies to deteriorations due to proper use.

If the provider is in delay with the performance of the service, the customer’s damage and expense compensation for each completed week of delay is limited to 0.5% of the price for the part of the contractual performance that cannot be used due to the delay. The liability for delay is limited to a maximum of 5% of the remuneration for all contractual performances affected by the delay; in the case of ongoing obligations, based on the remuneration for the affected services for the full calendar year. In addition and in priority, an agreed percentage of the agreed remuneration at the time of contract conclusion applies. This does not apply if a delay is due to gross negligence or intent of the provider.

3.4 In case of a delay in performance, the customer has a right of withdrawal only if the delay is attributable to the provider. If the customer makes justified claims for damages or expense compensation instead of performance due to the delay, he is entitled to claim 1% of the price for the part of the contractual performance that cannot be used due to the delay for each completed week of delay, however, a maximum of 10% of this price; in the case of ongoing obligations, based on the remuneration for the affected services for the full calendar year. In addition and in priority, an agreed percentage of the agreed remuneration at the time of contract conclusion applies.

4. Defective goods and expense compensation

4.1 The provider warrants the contractual quality of the services. There are no claims for defects in case of an insignificant deviation of the provider’s services from the contractual quality.

Claims for defects do not exist in cases of excessive or improper use, natural wear and tear, failure of system environment components, unreproducible or other software errors that can be proven by the customer. This also applies to damage caused by external influences not assumed under the contract. Claims for defects do not exist in cases where the customer or third parties have made subsequent changes or repairs, unless these hinder analysis and removal of a defect.

For claims for damages and expenses, Section 6 applies additionally.

4.2 The statute of limitations for claims for defects is one year from the statutory limitation period. The statutory periods for recourse under § 478 BGB remain unaffected. The same applies if the law prescribes longer periods according to § 438 Abs. 1 Nr. 2 or § 634a Abs. 1 Nr. 2 BGB in cases of intentional or grossly negligent breach of duty by the provider, in cases of fraudulent concealment of defects, and in cases of injury to life, body, or health as well as for claims under the Product Liability Act.

The processing of a customer’s defect notice by the provider only leads to suspension of the statute of limitations if the statutory prerequisites are met. A new start of the statute of limitations does not occur thereby. Only the statute of limitations for the defect causing the subsequent performance (replacement delivery or repair) can be influenced.

4.3 Recourse claims under § 327u BGB remain unaffected by Sections 4.1 and 4.2 in contracts for digital products.

The customer shall inform the supplier immediately if a claim is made by a buyer against the customer that could lead to a right of recourse. The customer will give the supplier the opportunity to settle the claim made by the buyer, unless this is unreasonable for the customer. The customer and the supplier will coordinate with each other to settle any justified claim of the buyer as cost-effectively and efficiently as possible.

4.4 The supplier may demand compensation for his expenses if

a) he becomes active due to a notification, without a defect being present, unless the customer could not reasonably determine that no defect was present,

b) a reported disruption is not reproducible or can be proven by the customer as a defect in another way, or

c) additional expenses arise due to the customer’s failure to properly fulfill his obligations (see also sections 2.2, 2.3, 2.4 and 5.2).

5. Rights-related defects

5.1 The supplier is only liable for violations of the rights of third parties by his performance if the performance is in accordance with the contract and, in particular, is used unchanged in the contracted environment. The supplier is only liable for violations of the rights of third parties within the European Union and the European Economic Area as well as at the place of proper use of the performance. Section 4.1 sentence 1 applies correspondingly.

5.2 The customer must immediately notify the provider if a third party claims that a service provided by the provider infringes on their rights. The provider and, if necessary, its suppliers are entitled but not obligated to defend the asserted claims at their own expense as far as permissible.

The customer is not authorized to acknowledge claims of third parties before giving the provider an opportunity to otherwise defend the rights of third parties.

5.3 If a service provided by the provider infringes on the rights of third parties, the provider will, at its own discretion and expense,

a) grant the customer the right to use the service or

b) make the service free from legal defects or

c) take back the service upon reimbursement of the fees paid by the customer (minus a reasonable usage fee) if the provider cannot achieve another remedy with reasonable effort. The interests of the customer will be taken into account appropriately.

5.4 Claims of the customer due to legal defects expire in accordance with Section 4.2. For claims for damages and reimbursement of expenses of the customer, Section 6 applies accordingly; for additional expense of the provider, Section 4.3 applies correspondingly.

6. General liability of the provider

6.1 The provider is liable to the customer at all times

a) for damages caused by him or his statutory representatives or vicarious agents with intent or gross negligence,

b) in accordance with the Product Liability Act and

c) for damages resulting from the infringement of life, body or health, which the provider, his statutory representatives or vicarious agents are to be held responsible for.

6.2 The provider is not liable for slight negligence unless he has violated a substantial contractual obligation whose fulfillment makes the proper performance of the contract possible in the first place or whose breach endangers the achievement of the purpose of the contract and on whose observance the customer regularly relies.

This liability is limited to material and immaterial damages to the typical and foreseeable damage. This also applies to lost profits and missed savings. Liability for other remote consequential damages is excluded.

For a single case of damage, liability is limited to the contract value, in the event of ongoing remuneration to the amount of the remuneration per contract year, but not less than € 50,000. For the statute of limitations, section 4.2 applies accordingly. The contracting parties can agree on further liability at the time of contract conclusion, usually against a separate fee. Priority is given to an individually agreed-upon liability sum. Liability pursuant to section 6.1 remains unaffected by this paragraph.

In addition and in priority, the provider’s liability due to slight negligence from the respective contract and its implementation is limited to damage and expense compensation independently of the legal basis in total to the percentage of the agreed remuneration at the time of contract conclusion. Liability pursuant to section 6.1 b) remains unaffected by this paragraph.

Liability from a guarantee declaration only exists for damages if this has been explicitly taken over in the guarantee. In case of slight negligence, liability is subject to the limitations according to Section 6.2.

If necessary restoration of data or components (e.g., hardware, software) is required, the provider’s liability only covers the effort needed for restoration at proper data backup and failure precautions by the customer. In case of slight negligence by the provider, this liability only applies if the customer has performed an appropriate data backup and failure precautions before the fault occurred. This does not apply to the extent that this is agreed upon as a service by the provider.

For claims for reimbursement of expenses and other liability claims of the customer against the provider, Sections 6.1 to 6.4 apply accordingly. Sections 3.3 and 3.4 remain unaffected.

7. Services

The provider makes the contractual services available in his sphere of availability (from the data center to the internet), including access to the software. The scope of performance, characteristics, purpose of use, and conditions of use of the contractual services result from the respective service description, supplemented by the user manual for the software.

In addition, further services, such as developing customer-specific solutions or required adjustments, require a separate contract.

The provider can supply updated versions of the software. The provider will inform the customer about updated versions and corresponding usage guidelines via electronic means and make them available accordingly.

8 . Scope of Use

8.1 The contractual services may only be used by the customer and only for the purposes agreed upon in the contract. During the term of the contract, the customer may access the contractual services via telecommunications (over the internet) and use the functions connected to the software in accordance with the contract using a browser or another suitable application (e.g. “app”). The customer does not acquire any further rights, particularly to the software or the infrastructure services provided in the respective data center. Any further use requires the prior written consent of the provider.

8.2 The customer is not permitted to use the software beyond the agreed scope of use or to allow third parties to use it or make it accessible to them. In particular, the customer is not allowed to copy, sell, or temporarily transfer, lease, or lend the software or parts thereof.

8.3 The provider is entitled to take appropriate technical measures to protect against unauthorized use. The contractual use of the services may not be impaired more than insignificantly by this.

In the event of a contractual breach by exceeding the usage scope by a user or in the case of unauthorized use, the customer shall immediately provide all available information to assert claims due to contractual breaches upon request from the provider, including the name and address of the user.

The provider may revoke the customer’s access authorization and/or terminate the contract if the customer exceeds the permitted usage significantly or violates regulations for protecting against unauthorized use. This may be accompanied by the provider interrupting or blocking access to contractual services. The provider shall generally set a reasonable notice period for the customer to remedy the situation beforehand. Revocation of access authorization alone does not constitute termination of the contract. The provider can only maintain revocation of access authorization without termination for an appropriate period, maximum 3 months.

The provider’s claim to compensation for usage exceeding the agreed scope remains unaffected.

The customer has a right to have their access authorization and access options reinstated after they have proven that they have stopped the contractual breach and will not engage in future contractual breaches.

9 . Availability, Performance Deficiencies

The availability of provided services is based on the service description.

9.2 In case of only insignificant reduction in the suitability of the services for contractual use, no claims exist on the part of the customer due to defects. The provider’s liability for defects that were already present at the time of contract conclusion is excluded.

9.3 § 578b BGB remains unaffected.

10. Data Protection

10.1 As far as the provider can access personal data of the customer or from his area, he will act exclusively as a commissioned processor and process and use these data only for contract performance. The provider will observe instructions of the customer for handling these data. The customer bears any adverse consequences of such instructions for contract performance. The customer will agree with the provider on details for the provider’s handling of the customer’s data in accordance with data protection regulations.

10.2 The customer remains responsible both generally in the commissioned relationship and in the sense of data protection law. If the customer processes personal data (including collection and use) in connection with the contract, he ensures that he is entitled to do so under applicable, including data protection regulations, and releases the provider from claims by third parties in case of a violation.

For the relationship between provider and customer: In relation to the affected person, the responsibility for processing (including collection and use) of personal data rests with the customer, unless the provider is liable for any claims by the affected person due to a breach of duty attributable to him. The customer will be responsible for examining, processing, and responding to inquiries, applications, and claims from the affected person. This also applies in case of an assertion against the provider by the affected person. The provider will support the customer within his duties.

The provider ensures that customer data are stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another contracting state to the Agreement on the European Economic Area, unless otherwise agreed.

11. Responsibilities of the Customer

The customer is obliged to protect the access authorizations and identification and authentication information assigned to him or the users before access by third parties and not to pass them on to unauthorized persons.

The customer is obligated to release the provider from all claims of third parties due to copyright infringements resulting from unlawful use of the subject matter by him or with his approval. If the customer recognizes or must recognize that such a breach threatens, he has the obligation to inform the provider immediately.

The customer has to utilize the possibilities provided by the provider to secure his data in his original area of responsibility.

12. Unlawful Contract Use, Compensation

For every case in which an unauthorized contractual performance is used by the customer within their area of responsibility, the customer shall pay damages in the amount of the compensation that would have been incurred for the contractual use within the minimum contract period applicable to this service. The burden of proof that the customer is not responsible for the unauthorized use or that no or a significantly lower damage exists remains with the customer. The provider reserves the right to claim further damages.

13. Disturbance Management

13.1 The provider will accept the customer’s fault reports, assign them to the agreed categories of faults (Section 13.3), and perform the agreed measures for analysis and removal of faults based on these assignments.

13.2 The provider will receive proper fault reports from the customer during their regular business hours and assign a reference number to each report. Upon request by the customer, the provider will confirm receipt of a fault report and provide the assigned reference number.

13.3 Unless otherwise agreed, the provider will assign received fault reports to one of the following categories after initial review:

a) Critical Fault

The fault is based on an error in the contractual performance that makes it impossible or only possible with severe restrictions for the customer to use the contractual performance, especially the software. The customer cannot reasonably avoid this problem and therefore cannot complete urgent tasks.

b) Other Fault

The disturbance is based on an error in the contractual services, which makes the use of the contractual services, particularly the software, impossible or only possible with significant restrictions. The customer cannot overcome this problem in a reasonable way and therefore cannot complete urgent tasks.

c) Other notification

Disturbance notifications that do not fall into categories a) and b) are assigned to other notifications. Other notifications will be handled by the provider only according to the agreements made for this purpose.

13.4 In case of notifications about severe disturbances and other disturbances, the provider will immediately initiate corresponding measures based on the circumstances reported by the customer in order to first locate the cause of the disturbance.

If the reported disturbance is not found to be an error in the contractual services, particularly the provided software, after initial analysis, the provider will inform the customer about this immediately.

Otherwise, the provider will initiate corresponding measures for further analysis and cleaning up of the reported disturbance or – in case of third-party software – forward the disturbance notification together with his analysis results to the supplier or manufacturer of the third-party software with a request for assistance. The provider will make available to the customer any measures he has taken to overcome or clean up an error in the contractual services, particularly the provided software, such as instructions or corrections to the provided software, immediately. The customer will take over such measures to overcome or clean up disturbances immediately and inform the provider about any remaining disturbances immediately.

14. Contract term and contract termination

The provision of the agreed-upon services takes place from the date specified in the contract initially for the duration of the agreed-upon term. During this minimum term, a premature ordinary termination is excluded on both sides.

The contract can be terminated with a notice period of three months; it can be terminated earliest at the end of the minimum term. If this does not occur, the contract will be extended each year for another year, provided that it has not been terminated with a notice period of 3 months at the end of the respective extension period.

The right of each contracting party to extraordinary termination due to an important reason remains unaffected.

Each declaration of termination requires written form for its effectiveness.

The customer will secure their data stocks in a self-responsible manner before the end of the contract (e.g., by downloading). Upon request, the provider will support the customer. Access to these data stocks will not be available to the customer after the end of the contract due to data protection reasons.

15. Otherwise

15 applies German law. The application of UN sales law is excluded.

The provider renders its services based on its General Terms and Conditions (AGB). The customer’s general terms and conditions do not apply, even if the provider has not explicitly contradicted them. The acceptance of the services by the customer is considered as acknowledgment of the provider’s AGB and waiver of the customer’s AGB. Other conditions are only binding if the provider has acknowledged them in writing; in this case, the provider’s AGB then apply additionally.

15.3 Changes and additions to this agreement shall only be agreed upon in writing. Where written form is agreed (e.g. for terminations, withdrawal), text form does not suffice.

15.4 The place of jurisdiction against a merchant, a legal entity of public law or a public-law special fund is the seat of the provider. The provider may also sue the customer at their seat.