§1 SCOPE; FORM
(1.) These General Terms and Conditions (hereinafter "GTC") apply exclusively to all business relationships between CMS IT-Consulting GmbH, Bretonischer Ring 5, 85630 Grasbrunn, Germany (hereinafter "CMS" or "Contractor") and customers (hereinafter "Client" or "Customer") of CMS. Any general terms and conditions or other conditions of the Customer shall only become part of the contract if and to the extent that CMS has expressly agreed to their validity. This requirement of consent applies in any case, for example, even if the Customer refers to their general terms and conditions or other conditions within an order and CMS does not expressly object to them or if CMS provides services without reservation. These GTC apply to the entire business relationship and all agreements between CMS and the Customer as well as to all services provided by CMS to the Customer, even if these GTC are not referred to again. (2.) In particular, by concluding or initiating a contract with CMS, by requesting a quote, or by using a service operated by CMS or utilizing services from CMS, the Customer agrees to these GTC and these GTC become part of the contract between the Customer and CMS. These GTC only apply if the Customer is an entrepreneur (within the meaning of § 14 BGB), a legal entity under public law or a special fund under public law. (3.) CMS reserves the right to supplement or modify these GTC at any time in the future, e.g., if this becomes necessary due to changes in the services offered by CMS, for security reasons, or changes in laws or jurisdiction. Any service provided by CMS will be rendered on the basis of the current version of the GTC from that point forward. If the Customer is in an ongoing contractual relationship with CMS in which CMS provides services based on the GTC, CMS will notify the Customer in advance of any changes to the GTC if the changes are not merely minor. The notification may also be sent to the email address provided by the Customer. The modified GTC will become effective after six (6) weeks following this notification unless the Customer objects to the change within the aforementioned period. In this case, CMS reserves the right to terminate the ongoing contractual relationship with the Customer extraordinarily or ordinarily at the earliest possible date. Continued use of CMS services after the expiry of this six (6) week period without objection, or acceptance of the modified GTC in a subsequent order, constitutes consent to the modified GTC for all contractual relationships with CMS. The Customer can view the current version of the GTC at any time at the following internet address: https://www.cms-it.de/agb/ (4.) Insofar as declarations or notifications must be made in writing according to these GTC or any other agreement between CMS and the Customer, the formal requirements are relaxed in accordance with § 127 Para. 2 BGB (the declaration or notification can therefore be made, for example, by letter, email or fax). This does not apply if these GTC or any other agreement between CMS and the Customer explicitly stipulates otherwise. (5.) References in these GTC to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions apply unless these GTC deviate from these statutory provisions or explicitly exclude them.
§2 DEFINITIONS
(1.) "Software" includes computer software, application modules and associated media, printed materials and documentation. Software also includes all updates and additions to the software originally supplied or made available by CMS. Components delivered with the software may have different licensing terms. (2.) "Hardware" includes physical components, devices and equipment as well as their accessories and associated software. (3.) "Products" include both hardware and software products. (4.) "Services" include all services provided by CMS and/or its agents. (5.) "Subscriptions" include all continuous services that include the provision, operation, hosting or maintenance of products as well as the storage and processing of data. (6.) An "Upgrade" refers to the enrichment of an existing subscription or product with additional performance features. These can be, for example, additional function modules, a higher number of users or other functional or performance features. Analogously, a "Downgrade" represents a reduction in existing performance features. (7.) An "Update" refers to an update of an existing subscription or product. Usually, an update serves to fix bugs in the previous version or to equip the previous version with new functions.
§3 PERFORMANCE OF SERVICES
(1.) CMS undertakes to provide the services agreed in the contract for the client in the agreed quality and at the agreed dates. The client bears the responsibility for success and project management unless expressly agreed otherwise in the contract. (2.) If CMS voluntarily provides free additional services, these can be discontinued at any time without notification. The client has no claim to continuation of these services. No claims for reimbursement or damages arise from this. (3.) The basis for the preparation of offers and the performance of services by CMS is always the service description created by the client and the information contained therein, or the service description created by CMS based on the client's information. The accuracy of the offer always depends on the precision of the client's information. CMS cannot therefore make any commitments regarding possible price or time deviations caused by the client's information, particularly if the nature and scope of the underlying project change during the term. (4.) If the services provided or products delivered by CMS require acceptance according to statutory provisions or an agreement between the parties, the following applies: acceptance must take place no later than four weeks from notification of readiness for acceptance by the client; CMS may set a shorter deadline for acceptance. CMS may also request partial acceptance of delivered products or services rendered from the contractor. The client is not entitled to refuse acceptance of products and services due to insignificant defects. The delivered products or services rendered are deemed accepted if the client does not refuse acceptance within the four-week period or the shorter period set, stating at least one defect in writing. If the client uses the products delivered or services rendered by CMS in live operation before the expiry of the four-week period or the shorter period set, the service is deemed accepted in any case. Any defects must be reported by the client immediately in writing with a precise description of the defect(s) to CMS to enable defect correction. If there are reported substantial defects in writing, a new acceptance is required after defect correction. (5.) When ordering products or services, the client confirms knowledge of the scope of services of the ordered products or services with the order. (6.) Should it become apparent during the work that the execution of the order according to the service description is actually or legally impossible or unreasonable for CMS, CMS will notify the client immediately. If the client does not modify the service description accordingly or create the conditions for execution to be possible, CMS may refuse execution. If the impossibility of execution is the result of culpable negligence by the client or a subsequent change to the service description by the client, CMS is entitled to withdraw from the order. The costs and expenses incurred for the activity up to that point as well as any dismantling costs must be reimbursed to CMS by the client. (7.) Shipping of products and associated program carriers, documentation and service descriptions is at the cost and risk of the client. Additionally requested training and explanations by the client will be charged separately. (8.) Information and explanations regarding services by CMS or its sales intermediaries are provided exclusively based on previous experience. They do not constitute any characteristics or guarantees regarding services. The values specified here are to be considered average values of the services. Unless expressly agreed otherwise in the contract, CMS does not guarantee that its products or services are suitable for the purpose pursued by the client. CMS only assumes an obligation to provide advice if this is expressly agreed in a separate written consulting contract. A guarantee is only deemed to have been assumed if CMS has designated a characteristic and/or service success as "legally guaranteed" in writing. (9.) Insofar as the services are provided at the client's premises, CMS alone has authority to issue instructions to its employees. CMS employees will not be integrated into the client's operations. The client can only make specifications within the framework of the contractual agreements to the CMS project coordinator, not directly to individual employees. CMS alone decides which employees are deployed and reserves the right to replace them at any time. CMS may also use freelancers and other companies in providing services. The client has no claim to service provision by specific employees. The manner of service provision is determined by the contractor. (10.) Unless expressly agreed otherwise in the contract, the place of service provision is CMS's registered office. (11.) The client remains solely responsible for the utilization of data coming from the client's IT systems and for the results achieved with it. (12.) The client may not allow third parties to use the contractor's services provided, unless this is expressly permitted by contract.
§4 PRICES, PAYMENT AND BILLING; TERMINATION
(1.) CMS is entitled to immediately invoice all delivered products or services rendered. This also applies to partial deliveries or implementation in partial steps for orders comprising multiple units or services. All CMS invoices are payable within 10 days of the invoice date unless explicitly agreed otherwise. No discount is granted unless explicitly agreed separately. For agreed bank transfers, the date of payment is considered the date of money receipt at CMS or credit to the payment office specified by CMS. (2.) All prices are ex business headquarters of the contractor and generally in Euro net, plus any sea or air transport packaging, freight, postage, and, if transport insurance was agreed, insurance costs, plus statutory VAT to be borne by the customer at the legally prescribed rate, plus any country-specific charges for delivery to countries other than the Federal Republic of Germany as well as customs duties and other fees and public charges for the service. (3.) Payment methods other than bank transfer require separate agreement between the contractor and customer; this applies particularly to payment by checks and bills of exchange. (4.) If remuneration based on effort is agreed, the remuneration is based on the contractor's current valid price list, which can be viewed at the following internet address: https://www.cms-it.de/agb/. Billing based on effort occurs upon submission of the contractor's usual activity records. The customer can object to the determinations made there within 2 weeks after receipt of the billing in text form. After expiration of these 2 weeks without customer objections, the activity records are considered accepted by the customer. Price changes can occur according to §5 Para. 2 of these Terms and Conditions. (5.) Travel times, travel costs and accommodation costs are calculated depending on the service location of the contractor's employees. Travel times and costs arise on trips between the employee's service location and the respective customer deployment location or different customer deployment locations. Travel times count as working time. (6.) If services are provided by the contractor at the customer's request outside the agreed service periods, hourly rates include the following surcharges: 50% on weekdays, 100% on Sundays and holidays. CMS is not obligated to provide services outside the agreed service periods. (7.) Compliance with the agreed payment terms constitutes an essential condition for CMS's provision of services. The receipt of payment at CMS is decisive for compliance with the agreed payment dates. Non-compliance with the agreed payments entitles CMS to immediately cease service provision and withdraw from the contract. All associated costs shall be borne by the client and the client must compensate CMS for the damage incurred, particularly lost profit. Additionally, statutory provisions apply and during default, outstanding amounts are subject to default interest at the statutory rate. The assertion of further damages and rights in case of default remains unaffected. (8.) Offsetting by the client with counterclaims or withholding payments due to such claims is only permissible if the counterclaims are undisputed or legally established. (9.) Unless separate regulations are agreed between the customer and CMS, a contract that constitutes a continuing obligation is concluded indefinitely. The notice period is three months to the end of the month unless otherwise agreed in writing. (10) If a minimum contract term has been agreed for contracts, the contract automatically extends by the duration of the originally agreed minimum contract term if it is not terminated by one of the parties with due notice at the end of the minimum contract term or extension period. The notice period is three months unless otherwise agreed in writing. During the minimum contract term or extension period, ordinary termination is excluded for both parties. (11) The right to extraordinary termination for good cause remains unaffected by the above regulations. Termination according to § 648 BGB (if § 648 BGB would be applicable at all) is also only possible for good cause. Good cause exists particularly if a. insolvency or composition proceedings are filed for or opened against a party's assets or a party's financial circumstances deteriorate; b. the client is in default with a due payment for more than 30 days and termination has been threatened; c. a party violates another essential contractual obligation and the violation is not remedied within two weeks after corresponding warning; d. a manufacturer discontinues support for individual products or fundamentally changes its service model; e. if there is a significant deterioration in the client's financial circumstances that seriously endangers the contractor's claim to complete fulfillment of the contract. (12.) In case of extraordinary termination by CMS according to preceding Para. (11.), all outstanding and future service rates until the end of the agreed minimum contract term become immediately due for payment. Saved interest and other termination-related benefits are credited to the payment claim in favor of the client. (13.) Termination declarations are only effective by registered letter unless otherwise agreed in writing.
§5 ADJUSTMENT OF PRICES AND SERVICES
(1.) CMS reserves the right to modify or discontinue paid ongoing services at any time without prior notice, provided that no fixed terms or deadlines have been explicitly agreed upon in writing with the customer and provided that the customer has not yet made any payment for the period from the time of modification or discontinuation. (2.) CMS reserves the right to adjust prices for all services in the future. Any service provided by CMS will be rendered based on CMS's current prices from that point forward. If the customer is in an ongoing contractual relationship with CMS and the agreed prices in this contractual relationship are to be changed, CMS will notify the customer of the price changes in advance. The notification may also be sent to the email address provided by the customer. The modified prices will become effective six (6) weeks after this notification unless the customer objects to the change within the deadline. In this case, CMS reserves the right to terminate the ongoing contractual relationship with the customer ordinarily at the earliest possible date. Continued use of CMS services after this six (6) week period without objection, or acceptance of the modified prices for a subsequent order, constitutes consent to the modified prices for all contractual relationships with CMS. The customer can view the current version of the price list at any time at the following internet address: https://www.cms-it.de/agb/
§6 DELIVERY AND SHIPPING
(1.) All offers from CMS are subject to change. Delivery is only made while stocks last. All delivery and performance dates specified by CMS are non-binding delivery and performance dates, unless a delivery or performance date is expressly agreed in writing as binding. If the customer requests changes or additions to the order after placing the order or if the customer does not fulfill their obligations or does not fulfill them on time, the delivery or performance date shall be postponed by a reasonable period. (2.) CMS is not liable for impossibility or delays in delivery or performance insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (for example, operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or missing, incorrect or late delivery by suppliers) for which CMS is not responsible. If such events make delivery or performance significantly more difficult or impossible for CMS and the hindrance is not only temporary, CMS is entitled to withdraw from the contract or deliver an equivalent replacement to the client. In case of temporary hindrances, delivery or performance periods shall be extended or delivery or performance dates postponed by the period of hindrance plus a reasonable start-up period. If, as a result of the delay, the acceptance of the delivery or service cannot reasonably be expected of the client, they may withdraw from the contract by written declaration if they have set CMS a reasonable grace period after expiry of the original delivery or performance date, which shall normally be at least six weeks, and CMS has not fulfilled within the grace period. (3.) The costs for shipping and any transport insurance are generally to be borne by the customer, whereby the choice of shipping route and method lies within CMS's dutiful discretion. Deliveries will only be insured by CMS against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the client and at their expense. (4.) The risk passes to the client at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, freight carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if CMS has assumed other services (e.g., shipping or installation). If dispatch or handover is delayed due to circumstances caused by the client, risk passes to the client from the day on which the delivery item is ready for dispatch and CMS has notified the client of this. (5.) If CMS is in default with a delivery or service (whereby the limited standard of fault according to §9 of these GTC applies) or if a delivery or service becomes impossible for CMS, for whatever reason, CMS's liability for damages is limited in accordance with §9 of these GTC.
§7 RETENTION OF TITLE
(1.) The delivered goods remain the property of CMS until complete payment without reservation of all current claims of CMS from the respective order with the customer in principal and ancillary matters. (2.) The customer is obliged to properly insure the goods subject to CMS's retention of title at their own expense (i.e., theft, fire, water, and low-voltage insurance) and to provide proof of such insurance to CMS upon request. In case of damage, the customer's insurance claim is deemed assigned to CMS. (3.) Before complete payment of the secured claims, the customer is not authorized to dispose of the goods subject to retention of title; in particular, they may not be pledged to third parties or transferred as security. If an application for insolvency proceedings is filed or if third parties access (e.g., seizures) the goods subject to retention of title, the customer must immediately notify CMS in writing and must immediately inform third parties of CMS's retention of title in an appropriate form. If the third party is not able to reimburse CMS for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to CMS for these costs. In the event that the customer nevertheless sells the goods subject to retention of title and CMS should approve this, the customer assigns to CMS upon conclusion of the contract all claims arising from this against their customers - in case of co-ownership of CMS in the reserved goods proportionally according to the co-ownership share. The customer also assigns other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tort in case of loss or destruction, to CMS upon their creation. (4.) The customer is obliged to provide CMS with all information necessary for asserting these claims or rights and to perform the necessary cooperative actions.
§8 WARRANTY
(1.) The customer's rights regarding material defects and defects of title are governed by statutory provisions, unless otherwise specified in these Terms and Conditions. CMS warrants that the services provided, specifically the functionality of delivered hardware, software products, or subscriptions, substantially conform to the written service description of the original order or other agreement regarding the quality of service (especially goods to be delivered). If the quality has not been agreed upon, the statutory provisions shall determine whether a defect exists or not. CMS assumes no liability for public statements by the manufacturer or other third parties (e.g., advertising claims) to which the customer has not referred to CMS as being decisive for their purchase decision. (2.) CMS excludes any warranty for all products that are marked or declared as "Pre-version," "Demo," "Prototype," "Sample," "Alpha," "Beta," "Free," or any other addition indicating limited usability. Products with limited usability do not yet have complete functionality, and these are provided by CMS to the customer for testing purposes only; therefore, they should not be used in productive operations by the customer but only tested in an isolated test environment without impact on productive operations. (3.) The customer is obligated to install the latest version of software products provided by CMS immediately if requested to do so by CMS. Updates, upgrades, and downgrades through a newer version of software products may under certain circumstances change the character or scope of the original software product; this does not give rise to a warranty claim unless the customer has been requested to install a new version of the software product and this new version impairs or eliminates a feature or functionality of the software product that has been assured to the customer by CMS. Increased effort by the customer in commissioning or operating the latest version of software products (such as familiarization time, training effort, etc.) does not constitute a defect and does not justify any (replacement) claim by the customer. (4.) The customer's rights regarding material defects and defects of title presuppose that the customer has complied with their statutory duties of inspection and notification (Sections 377, 381 German Commercial Code). If a defect becomes apparent during delivery, inspection, or at any later time, the customer must immediately notify CMS of this in writing. If the customer fails to properly inspect and/or report defects, CMS's liability for the defect not reported or not reported in time or not properly reported is excluded according to statutory provisions. If CMS loses its own claims against third parties (insurance, sub-supplier, etc.) due to the omission of inspection and notification duties, the customer shall be liable for all costs and damages resulting therefrom. (5.) If a defect exists, CMS may first provide subsequent performance. The subsequent performance shall be carried out at CMS's choice by (a.) replacing the defective service (replacement delivery) or (b.) eliminating the defect (repair). If the defect does not affect functionality or only insignificantly, CMS is entitled, excluding further defect rights, to remedy the defect by delivering a new version or update within the scope of its version, update, and upgrade planning. CMS's right to refuse subsequent performance under statutory conditions remains unaffected. (6.) CMS is entitled to make the due subsequent performance dependent on the customer paying the due consideration. However, the customer is entitled to withhold a portion of the consideration reasonable in relation to the defect. (7.) The customer must give CMS the necessary time and opportunity for the owed subsequent performance, in particular to hand over the objected item for inspection purposes. In case of replacement delivery, the customer must return the defective item to CMS according to statutory provisions. The subsequent performance does not include the removal of the defective item nor the re-installation if CMS was not originally obligated to install. (8.) The expenses necessary for inspection and subsequent performance, particularly transport, travel, labor, and material costs as well as removal and installation costs, if applicable, shall be borne or reimbursed by CMS according to statutory provisions if a defect actually exists. Otherwise, CMS can demand reimbursement from the customer for costs arising from the unjustified request for defect removal (particularly inspection and transport costs), unless the lack of defectiveness was not recognizable for the customer. (9.) If subsequent performance has failed or a reasonable deadline to be set by the customer for subsequent performance has expired unsuccessfully or is dispensable according to statutory provisions, the customer may withdraw from the contract according to statutory provisions or reduce the price. However, in case of an insignificant defect, there is no right of withdrawal. (10.) The services provided or delivered by CMS (particularly hardware, software products, or subscriptions) may be based on technologies and components from other manufacturers. CMS cannot provide any warranty for the fault tolerance and availability of these technologies and components, and CMS is also not liable for malfunctions and failures, unless mandatory statutory provisions provide otherwise. Should the technologies or components of the other manufacturer be defective and for this reason, under the other conditions of these Terms and Conditions, warranty claims of the customer against CMS exist, the customer's warranty claims are initially limited to the assignment of CMS's warranty claims against the other manufacturer. This does not apply if the defect is based on improper handling of the technologies or components of the other manufacturer for which CMS is responsible. If the customer cannot enforce their warranty claims against the other manufacturer out of court, CMS's subsidiary liability for warranty claims remains unaffected. (11.) If the client (themselves or through third parties) extends or modifies the services provided by CMS, particularly hardware, software products, or subscriptions, without express prior consent, any warranty by CMS expires, unless the client proves that the extension or modification is not causative for the defect; in this case, any warranty by CMS still expires if the defect removal becomes impossible or unreasonably difficult due to the extension or modification. In any case, the client must bear the additional costs of defect removal incurred by CMS due to the extension or modification. The client is solely responsible for downtimes, disruptions, and damages caused by extension or modification, and the client must bear the additional expenses caused thereby at CMS. CMS is also not responsible for defects that are attributable to improper operation and operating conditions or the use of unsuitable operating materials by the client. (12.) If the subject of the order is the modification or supplementation of services already provided or software products delivered, the warranty relates to the modification or supplementation. The warranty for the original service does not revive thereby. (13.) Insofar as CMS provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by CMS, this is done free of charge and excluding any warranty. (14.) Claims by the customer for damages or compensation for wasted expenditure exist even in case of defects only in accordance with §§ 9 and 10 of these Terms and Conditions and are otherwise excluded. (15.) The customer is aware and CMS and the customer agree that 100% security, particularly in the context of Managed Service services backup, antivirus, firewall, web filtering, and monitoring, is not possible. Therefore, it is only aimed to perform appropriate service delivery and enable appropriate protection while observing the necessary technical and organizational requirements. The contractor will thereby orient itself to the respective state of the art. The customer is further aware and CMS and the customer agree that the installation of web filtering is not protection against malware and does not replace a firewall and other IT security measures. Monitoring does not replace data backup, virus scanner, or regular maintenance of server hardware and its programs. Corresponding security measures are to be commissioned separately as Managed Service services. (16.) If agreed, CMS provides the customer with hardware and software from third-party providers/manufacturers. In this case, the contract for the provision of hardware and software is usually concluded directly between the customer and the third party, unless explicitly agreed otherwise, and the service, particularly delivery, is provided directly by the third party to the customer. The contractual terms of the third party apply, which the customer acknowledges with their order. The customer is aware and CMS and the customer agree that regardless of the offer preparation and invoicing, CMS merely mediates the conclusion of the contract between the third-party provider and the customer regarding the service, and this service is provided directly by the third party to the customer. CMS does not grant the customer any own warranty or guarantee for products (particularly hardware and software) from third-party providers - unless explicitly agreed otherwise in writing. The legal regulations of the third-party provider apply. As a precautionary measure, warranty and guarantee claims against CMS are hereby excluded to the extent legally permissible.
§9 LIMITATION OF LIABILITY
Any liability of CMS for damages exists within the framework of statutory provisions in cases of intent and gross negligence. CMS's liability for damages due to slight negligence exists - subject to further statutory limitations of liability (e.g., care in own affairs; insignificant breach of duty) - only (i) for damages resulting from injury to life, body or health, (ii) where liability exists under the provisions of the Product Liability Act, (iii) to the extent of an assumed guarantee, or (iv) if a contractual obligation is breached, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the client may regularly rely (so-called cardinal obligation); in the above case (iv), liability is limited to compensation for foreseeable and typically occurring damage and CMS is liable at most in the amount of payments made or to be made by the client to CMS under the respective contract. Beyond this, CMS's liability towards the client for damages due to slight negligence is excluded regardless of the legal grounds. The above exclusions and limitations of liability apply to the same extent to any direct liability of CMS's legal representatives, employees and other vicarious agents.
§10 LIMITATION PERIOD
(1.) In deviation from statutory provisions, the general limitation period for claims arising from material defects and defects of title is twelve months from delivery of the defective item or, if acceptance is required, from acceptance. (2.) The above limitation periods also apply to contractual and non-contractual claims for damages by the customer based on a defect in the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. (3.) The above limitation periods do not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by CMS or its vicarious agents, from the Product Liability Act, if CMS has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods, as well as in the cases of Section 438 Para. 1 No. 1 and 2, Section 445b and Section 634a Para. 1 No. 2 BGB; rather, the limitation period in these cases is governed by statutory provisions.
§11 CUSTOMER'S DUTY TO COOPERATE (ESPECIALLY DATA BACKUP)
(1.) The customer is obligated to support CMS free of charge in the proper provision of services and to create all prerequisites necessary for the provision of services in their operational sphere, as well as to promote the provision of services by CMS through active and appropriate cooperation. For this purpose, the customer shall provide CMS with necessary information and grant access (especially remote) to their IT infrastructure when needed. If on-site services are necessary, the customer shall ensure that CMS receives the required access to the premises. Additionally, the customer shall ensure that qualified personnel is available to support CMS. (2.) If the customer provides their cooperation services under this §11 inadequately, this may lead to disruptions in CMS's service provision and entitles CMS to withhold its services that cannot be provided without these cooperation services or only with disproportionate additional effort, until the customer's cooperation services are provided completely and without defects. The customer's payment obligations remain unaffected. Additional expenses caused by this must be reimbursed to CMS in addition to the agreed compensation. Further rights and claims of CMS, particularly according to the following paragraphs, remain unaffected. (3.) The customer is obligated to avoid and minimize damage in every respect. Proper, regular data backup is the customer's responsibility, unless corresponding services are explicitly to be provided by CMS according to contractual agreements. Proper data backup includes all technical and/or organizational measures to ensure the availability, integrity, and consistency of IT systems, including data, programs, and procedures stored and used on these IT systems for processing purposes. Proper data backup means that the measures taken, depending on data sensitivity and volume, enable immediate and short-term restoration of systems, data, programs, or procedures after recognized impairment of availability, integrity, or consistency due to a damaging event. The measures include at least the creation and testing of reconstruction capability of copies of programs, data, and procedures in defined cycles and generations. In particular, the customer will perform a complete backup of all system and application data immediately before each installation and/or other intervention by the contractor or third parties commissioned by them. Additionally, the customer will also store and secure all documents, information, and data provided to CMS. The data backups must be performed and stored by the customer in such a way that restoration of the backed-up data is possible at any time, particularly in case of damage or loss. Should CMS be liable in principle for the loss of customer data, this liability is limited to the amount that would have been incurred for proper and regular data backup restoration. (4.) The customer is solely responsible for necessary archiving, particularly according to tax and commercial law regulations. (5.) Unless otherwise agreed, the customer commits to ensure through appropriate technical and organizational measures that the intended use of hardware and software is guaranteed and unauthorized third-party access to the software cannot occur. (6.) The customer must report disruptions to CMS immediately in text form in a comprehensible and detailed manner, providing all information useful for disruption detection and analysis. In particular, the work steps that led to the disruption, its appearance, and impact must be specified. (7.) When describing, delimiting, determining, and reporting disruptions, the customer must follow the instructions given by CMS. (8.) During necessary test runs, the customer must be personally present or provide competent employees who are authorized to judge and decide on errors, function extensions, function reductions, and changes to program structure and database structures. If necessary, other work with the IT systems should be suspended during CMS's service provision. (9.) The customer shall designate a responsible contact person. This person can make binding decisions for the customer or bring them about immediately and is authorized to make legal declarations in connection with CMS's service provision. The customer shall ensure that their designated contact person provides CMS with the documents, information, and data necessary for service provision completely, correctly, timely, and free of charge. Furthermore, the customer must ensure their updating. CMS may assume the completeness and correctness of these documents, information, and data unless CMS recognizes them as obviously incomplete and incorrect. (10.) The customer shall inform CMS of any changes regarding employees and users that affect and are relevant to its service provision. Additional costs arising from the change will be borne by the customer. (11.) The customer ensures that the use and storage of private data, for example, private data of employees, on systems operated by CMS does not lead to legal risks for CMS. If claims are made against CMS due to private data used or stored, the customer will indemnify CMS against all claims upon first request. If CMS incurs damages due to non-compliance with the aforementioned, these must also be compensated in full by the customer. (12.) The customer will use CMS's services in such a way that data security and data flow in their communication network are not adversely affected. If programs, scripts, or similar items installed by the customer endanger the operation of the server (particularly if the security and integrity of other data located there is endangered) or CMS's communication network or the security and integrity of other IT systems, CMS can, taking into account the customer's legitimate interests, immediately suspend the connection of the customer's IT system to CMS's communication network and data center and/or to the Internet in whole or in part, or deactivate or uninstall the customer's programs, scripts, etc. In this case, the customer will be notified. A new connection or new activation or installation can only occur once the aforementioned complications have been resolved. CMS is not liable for any damages resulting from the suspension of connection or deactivation or uninstallation for this reason. (13.) Unless otherwise agreed, the customer must provide their own required IT infrastructure and Internet connection to access the contractor's services. (14.) The customer may not store illegal content on the storage space provided by the contractor, particularly content that violates laws, official requirements, or third-party rights. The Internet address chosen by them under which the content can be accessed must also not violate laws, official requirements, or third-party rights. The customer must ensure that programs, scripts, or similar items installed by them do not endanger the security and integrity of other data stored on the contractor's servers. The customer indemnifies the contractor against any third-party claims caused by them, including resulting costs. In case of an imminent or occurred violation of the above obligations or in case of not obviously unfounded third-party claims against the contractor to cease the complete or partial presentation of the content stored on the server via the Internet, the contractor is entitled, taking into account also the legitimate interests of the customer, to temporarily suspend the connection of this content to the Internet in whole or in part with immediate effect. The customer will be informed immediately about this measure. (15.) The content stored by the customer in their designated storage space may be protected by copyright and data protection law. The customer grants CMS the right to make the content stored by the customer on the server accessible when queried via the Internet, in particular to reproduce and transmit it for this purpose, as well as to reproduce it for data backup purposes. The customer checks on their own responsibility whether their use of personal data meets data protection requirements. Furthermore, the customer grants CMS the right to access and analyze relevant customer data in the context of providing its services.
§12 CONTRACTUAL RENTAL SERVICES
(1.) If CMS and the customer agree that the customer is only temporarily provided with a rental item (hardware or software), the regulations of this §12 shall apply additionally. The customer must treat the rental item with care and protect it from damage. They will ensure proper use and appropriate operation of the rental item by sufficiently qualified personnel. The customer will follow the maintenance, care, and operating instructions from CMS or third-party manufacturers or suppliers, particularly the instructions contained in the provided operating manual and documentation, to the extent reasonable. Markings on the rental item, especially signs, numbers, or labels, may not be removed, altered, or made unrecognizable. (2.) The rental fee is specified in the offer. The prices stated in the offer are exclusive of statutory VAT. (3.) The rental fee includes compensation for providing the rental item and its maintenance and repair, each to the agreed extent. The supply of consumables is not included in the rental fee and must be paid separately according to the contractor's current price list if applicable. Unless expressly agreed otherwise between CMS and the customer, when renting software, the customer only receives the simple (non-exclusive), temporally limited to the rental period, non-transferable, and non-sublicensable right to use the software to the agreed extent. (4.) If the rental item is expanded with new hardware or software, an offer for the respective expansion will be sent to the customer in advance. (5.) Travel costs to the agreed location are not included in the rental price. On-site accommodations are at the customer's expense. (6.) Any adjustments and/or modifications to the rental item made at the customer's request shall be paid separately unless they are necessary for maintenance or repair of the rental item or to ensure contractual use. The supply of consumables must be paid separately if applicable. (7.) After termination of the rental relationship, the provided software and/or hardware must be returned to CMS. Software must be returned on the original data carrier, and the software along with all other copies must either be completely and irretrievably deleted from the customer's hardware or systems or returned to CMS, at CMS's discretion. The complete return or surrender and deletion or destruction must be confirmed in writing to CMS by the customer upon request.
§13 CLOUD-BASED SERVICES AND SUBSCRIPTIONS
(1.) If cloud-based services or subscriptions have been agreed between CMS and the customer, the regulations of this §13 apply additionally. The customer must provide their own required IT infrastructure and internet connection to access the provided services. CMS is entitled to commission third-party companies to fulfill the technical conditions for cloud-based services in a data center. Further details of CMS services are regulated in the service description. (2.) If agreed, CMS provides the customer with cloud-based services or subscriptions from third-party providers. In this case, unless expressly agreed otherwise, the contract for the provision of cloud-based services and subscriptions is generally concluded directly between the customer and the third party, and the cloud-based services or subscriptions are provided directly to the customer by the third party. The third party's contractual terms (e.g., Cloud Agreement, EULA, Online Service Terms, and SLA) apply, which the customer acknowledges with their order. The customer is aware and CMS and the customer agree that, regardless of the offer and invoicing, CMS merely mediates the contract conclusion between the third-party provider and the customer regarding the provision of cloud-based services or subscriptions, and these services are provided directly by the third party to the customer. (3.) CMS does not provide its own warranty or guarantee for products (especially cloud-based services or subscriptions) from third-party providers - unless expressly agreed otherwise in writing. The legal regulations of the third-party provider apply. As a precautionary measure, warranty and guarantee claims against CMS are hereby excluded to the extent legally permissible. (4.) If agreed, CMS provides the service and support services specified in the service description regarding the provided cloud-based services or subscriptions of third parties. If required for service provision, the customer provides CMS with access to the customer's cloud account existing with the third party. (5.) CMS is entitled to make changes to the cloud-based services or subscriptions at any time that do not significantly impair their functionality and are necessary due to security or legal and regulatory requirements. CMS will inform the customer of this as promptly as possible. (6.) Regarding third-party software provided as part of cloud-based services or subscriptions, unless expressly agreed otherwise, the customer receives a time-limited, simple (non-exclusive), non-transferable, and non-sublicensable right of use for the contract duration according to the third-party provider's license terms, which will be made available to the customer upon request. (7.) If self-administration tools are available to the customer as part of cloud-based services, the customer is solely responsible for their own use or use by third parties commissioned by the customer of these tools.
§14 SUBCONTRACTORS
CMS is entitled to engage third parties as subcontractors and/or involve them in the provision of services for all service obligations. CMS shall ensure that this does not result in any significant disadvantages for the customer. Furthermore, CMS is entitled to have all obligations fulfilled by third parties on its behalf.
§15 REMOTE MAINTENANCE
(1.) CMS is entitled to provide its services by means of remote maintenance. Data that becomes known to CMS in this process will only be used for remote maintenance purposes. Whenever possible, remote maintenance is performed on screen without simultaneous storage. (2.) CMS uses a secure identification procedure where technically possible. The start of remote maintenance is generally announced by telephone to give the customer the opportunity to monitor the remote maintenance measures. (3.) If the customer wishes to interrupt remote maintenance, the customer must bear any additional expenses and damages that arise due to the customer-side interruption of remote maintenance. (4.) If interruptions of program sequences on the customer's side become necessary for remote maintenance purposes, the contractor will inform the customer in advance, as far as technically possible.
§16 COPYRIGHT
(1.) Ownership and copyright of all services, particularly software products and their components, remain with CMS and its suppliers, including but not limited to images, photographs, animations, video, audio, music, text and "applets," and all other included content or services (hereinafter: Copyrighted Content), unless otherwise agreed in writing or resulting from these Terms and Conditions. Copyrighted Content is usually stored in a program directory named "lib," "res," "inc," "external" or "assets" within the project source code. When implementing development services, CMS may use, adapt, or newly develop its own or third-party components. Copyrighted Content is permanently reused by CMS and therefore cannot be transferred or exclusively licensed. (2.) Should CMS provide individual development services, CMS grants, unless expressly agreed otherwise, a non-transferable and non-sublicensable, but temporally unlimited simple (non-exclusive) right of use for all Copyrighted Content within the scope of the respective project. The content and scope of this right of use is determined by the written project specification created by CMS for this project. The right of use is generally limited to the respective contractual purpose. (3.) For development projects, CMS will also utilize Copyrighted Content from third parties, such as images or program libraries. CMS cannot transfer any rights, issue licenses, or make other commitments for such Copyrighted Content.
§17 EXPORT
The customer acknowledges that hardware and software may be subject to export and import restrictions. In particular, licensing requirements may exist or the use of software or associated technologies abroad may be subject to restrictions. The customer will comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations. The fulfillment of the contract by CMS is subject to the condition that there are no obstacles to fulfillment due to national and international regulations of export and import law as well as no other legal provisions.
§18 CONFIDENTIALITY
(1.) The Customer commits to comply with legal data protection regulations and to adequately protect CMS's trade and business secrets from unauthorized access to the extent required. (2.) The Customer specifically commits to permanently keep confidential all confidential information from CMS that becomes known to them in connection with CMS's service provision, particularly business and trade secrets, not to disclose to unauthorized third parties, record or otherwise utilize, unless CMS has explicitly agreed to the disclosure or use in writing. Without such consent, the known information may only be used for the execution of this contract. The Customer will only grant access to CMS's confidential information to those employees who need to know it for the respective execution of the contract with CMS. (3.) The above obligations also apply to the period after termination of the contractual relationship. (4.) The Customer is aware that electronic and unencrypted communication, e.g., via email, carries security risks. If the Customer agrees to unencrypted communication (particularly also implicitly by using unencrypted communication), they will not make any claims that are based on the lack of encryption.
§19 NON-SOLICITATION
(1.) The customer is prohibited, for a period starting from the first commissioning of a service from CMS until the expiry of two years after CMS last provided a service to the customer, from actively soliciting CMS employees or supporting third parties in solicitation activities. This non-solicitation clause also includes other offers and agreements whereby the employee's labor shall no longer benefit CMS but shall benefit the customer or third parties in whole or in part. The non-solicitation clause also protects, in terms of a contract for the benefit of third parties, CMS affiliated companies with regard to their employees and also obligates companies affiliated with the customer; in this respect, the customer shall be liable for the actions of its affiliated company. (2.) For each case of violation of the above non-solicitation clause, the customer shall pay a contractual penalty in the amount of three gross monthly salaries per solicitation attempt, based on the average gross monthly salary of the employee in the last 12 full calendar months. Each individual solicitation attempt towards each individual employee is considered an independent violation of the non-solicitation clause. In the case of a successful solicitation attempt, the contractual penalty amounts to twelve gross monthly salaries. The assertion of any further damages remains unaffected by this. (3.) In the event of a violation of the above non-solicitation clause, CMS is also entitled to terminate any contractual relationship with the customer with immediate effect for good cause or to withdraw from it.
§20 EVIDENCE CLAUSE
Data stored in electronic registers or otherwise in electronic form at CMS shall be considered admissible evidence for proving data transmissions, contracts, and executed payments between the parties.
§21 CONTRACT DATA PROCESSING
The parties shall conclude a separate contract for order processing if one party processes personal data on behalf of the other party as the controller.
§22 FINAL PROVISIONS
(1.) CMS reserves all rights not expressly granted. (2.) For all legal relationships between CMS and clients who are merchants within the meaning of the German Commercial Code, legal entities under public law or special funds under public law, the place of performance and jurisdiction for both parties is Munich, Germany, to the extent permitted by law. The contractor is also entitled to file suit before the court that has jurisdiction at the client's registered office. (3.) Should individual provisions of these Terms and Conditions be or become invalid or unenforceable after conclusion of the contract, the validity of the remainder of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the parties with the invalid or unenforceable provision. The above provisions shall apply accordingly in the event that the contract proves to be unintentionally incomplete. (4.) CMS is entitled to obtain information about the client's financial circumstances before accepting the contract and during an ongoing contractual relationship. The client must immediately notify CMS of any changes in legal relationships, postal address and bank details. (5.) The transfer of rights and obligations, in particular the assignment of claims from the legal relationships between CMS and the client, is only permitted with CMS's written consent. CMS is entitled to transfer the rights and obligations, in particular claims from this contract, to third parties, especially to the refinancing bank. (6.) All legal relationships between CMS and the client shall be governed exclusively by German law, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. (7.) Changes and additions to these Terms and Conditions and to all contractual agreements between CMS and the customer must be made in writing. This also applies to any change to this written form requirement. Verbal agreements are considered not made.
APPENDIX: PRICE LIST
Billing based on effort is calculated according to the actual services provided. The following hourly rates apply:
Mon-Fri 08:00 - 18:00: €200.00
Mon-Fri 18:00 - 08:00: €250.00
Sat/Sun/Holidays 08:00 - 18:00: €250.00
Sat/Sun/Holidays 18:00 - 08:00: €275.00
Travel times are considered working hours. Expenses, accommodations, and travel costs are billed separately. For travel by car, a mileage allowance of €0.40 is charged. Last update: 06.08.2023
