Terms and conditions

1. Managed services; monitoring

At the customer's request, Sysfacts provides automation and virtualisation services for the customer's entire IT infrastructure (“managed services”), including its monitoring.

Where commissioned, managed services aim to optimise and increase availability of the customer's IT systems and structures. Improved scalability and predictable support costs can help increase efficiency in the customer's work and business processes. Ideally, the customer can outsource its entire IT infrastructure to Sysfacts.

If contractually agreed, Sysfacts monitors the contracted systems in relation to endpoints, particularly domains, URLs, hostnames, websites and IP addresses, using suitable software (“monitoring”). The parameters, including any customer benchmarks, are finally defined when the order is placed.

Monitoring is performed remotely over the internet.

Monitoring does not protect customer systems, particularly against viruses, trojans or similar malware. Monitoring services are limited to collecting, measuring and displaying specified data. Additional IT security consulting, tests or analyses are not included and require a separate individual agreement with Sysfacts.

If monitoring results indicate an urgent or other need for action to preserve system integrity and confidentiality, Sysfacts acts only on specific customer instructions or prior consent. Unless separately agreed, services beyond monitoring are charged separately according to effort. The customer shall grant necessary network permissions and ensure access, and provide complete documentation and information about monitored components in good time.

The customer is responsible for an adequate internet connection and the required system prerequisites.

Different managed-service and monitoring packages are available, with different monitoring intensity and service parameters.

The scope of Sysfacts services, particularly the customer IT systems, structures and processes to be automated or optimised, is individually and finally defined when the order is placed.

Sysfacts provides managed services only for the individual or multiple services commissioned under the following provisions. Integration of further third-party systems or services is not owed unless individually agreed.

The customer acknowledges that system monitoring does not generally include fault resolution. Measures to resolve errors or prevent and eliminate critical operating conditions are owed only where agreed when the order is placed.

2. Consulting services

When commissioned, Sysfacts provides consulting and support in information technology and in establishing and optimising IT processes. Scope, service hours and specific service levels are defined when the order is placed.

If these services are provided within a customer project, responsibility for project management and success rests solely with the customer.

Sysfacts provides consulting with the greatest care and diligence in accordance with the current state of technology. By agreement and where appropriate, it takes account of general process descriptions and industry standards, such as ISO and DIN, and any specific customer rules, methods and practices.

Sysfacts is generally free to choose the place of performance. Where the task requires presence at a specific location, Sysfacts must perform there.

Advice on customer IT security issues, or where monitoring reveals critical operating conditions of which Sysfacts informs the customer, is not included in consulting services. Such advice requires a separate individual agreement.

3. Server housing / colocation

Sysfacts provides suitable space or rack areas for the customer's own servers and, on request, helps connect them to the customer's IT system. If individually agreed, other suitable customer equipment may also be housed under this provision.

Operation and maintenance of housed equipment or systems require an individual agreement or managed services under section II.1. The same applies to transport to the server location. Where Sysfacts monitors the equipment, section II.1 and the scope agreed at order placement also apply.

The customer may remove housed equipment and systems at any time. This generally does not affect the contract or agreed remuneration.

Sysfacts data-transfer services cover only communication between its network's handover point to the internet and the equipment or IT systems provided by the customer. No further data traffic is owed. At the handover point, meaning the router output at the data centre used, overall availability is at least 99% averaged over the year.

The customer must report faults immediately using the contact details provided. Fault reporting is available on working days, excluding nationwide public holidays, from 09:00 to 18:00 (“service hours”).

Provision and housing are limited to the duration of the contract.

Sysfacts is generally free to select the server location, provided the services meet the applicable state of technology.

Where included in the order, service parameters are individually agreed at order placement: type, quality and environmental conditions of space; server location; space size and any separation from other customers; customer equipment; power supply and protection; cooling; fire, dust and dirt protection; access arrangements; backups; physical separation of mirrored systems; monitoring intervals for network or infrastructure components; internet connectivity; transfer speed; and availability.

The customer does not acquire the right to make the provided space available to third parties for commercial purposes.

4. Server hosting

At the customer's request, Sysfacts provides system resources on a virtual server (“server hosting”).

Sysfacts enables access to the virtual server and its content over the internet. Data-transfer services cover only communication between Sysfacts' network handover point to the internet and the server provided to the customer. No further data traffic is owed. At the handover point, meaning the router output at the data centre used, overall availability is at least 99% averaged over the year.

The customer shall inform authorised users that applications are unavailable during maintenance. The customer also acknowledges that user access to the hosted system during maintenance may delay maintenance.

The customer must otherwise report faults immediately using the contact details provided. Fault reporting is available on working days, excluding nationwide public holidays, from 09:00 to 18:00 (“service hours”).

Sysfacts provides credentials and user identifiers for access to the resources. The customer must store them with adequate protection against unauthorised disclosure.

Where included in the order, the server's technical parameters are individually agreed at order placement. Storage capacity and backups performed by Sysfacts, including intervals, type and quality, are also specifically agreed then.

Services under this section are limited to the duration of the contract.

Sysfacts may use qualified third parties or subcontractors, such as a data centre operator, to deliver these services in compliance with applicable law, particularly data protection law. They do not become the customer's contractual partners.

Sysfacts is generally free to select physical server locations, provided its services meet the applicable state of technology.

The customer's use of provided servers does not include the right to make them available to third parties for commercial purposes.

5. Provision of software

If agreed at order placement, Sysfacts provides paid, time-limited use of the contracted software to a limited number of users through a browser over the internet. No physical software delivery occurs. Access is provided through Sysfacts servers.

The software, authorised user count and subscription duration are defined at order placement. Unless expressly agreed otherwise, the software is standard software not tailored to the customer's individual needs.

The customer may increase or reduce authorised users under the conditions applicable at order placement. Sysfacts provides the manufacturer's original user documentation.

Sysfacts must provide and maintain the software in a condition suitable for its contractual use. Maintenance does not include adaptation to changed operating conditions or technical and functional developments.

Where included in the order, Sysfacts also installs software on customer systems. The customer must ensure all system requirements, particularly hardware and network connectivity, are met when installation begins.

Software usage rights are governed by the manufacturer's licence terms, which the customer must comply with. Those terms apply directly between manufacturer and customer and will be provided in advance on request.

Sysfacts notes that the current state of technology makes it impossible to provide standard software free of errors under all operating conditions. An error alone therefore does not necessarily constitute a defect.

The customer's system environment may affect Sysfacts services. Reduced software functionality caused by those factors is not a defect.

Termination under section 543(2), sentence 1, no. 1 BGB for failure to provide contractual software use is permitted only after Sysfacts has had sufficient opportunity to remedy the defect and has failed. Remedy is considered failed only if impossible, refused or unreasonably delayed by Sysfacts, if there are justified doubts about success, or if other circumstances make it unreasonable for the customer.

Defect-related rights are excluded where the customer modifies or has the software modified without Sysfacts' consent, unless the customer proves that the changes do not unreasonably affect fault analysis and remedy. Rights remain unaffected where the customer is entitled to make changes, particularly self-remedy under section 536a(2) BGB, and those changes are professionally carried out and clearly documented.

Sysfacts may use qualified third parties or subcontractors, such as a data centre operator, to deliver these services in compliance with applicable law, particularly data protection law. They do not become the customer's contractual partners.

Sysfacts is generally free to select physical server locations, provided its services meet the applicable state of technology.

The customer warrants that content and data stored on Sysfacts servers, and their use and provision by Sysfacts, do not violate applicable law, official orders, third-party rights or agreements. On first demand, the customer shall indemnify the provider against third-party claims arising from a breach.

6. Supplementary IT services; support

Unless already included under preceding provisions, supplementary IT services include software installation; update and patch management and installation; hardware repair; training and workshops; telephone or remote user support; hardware connection; on-site or telephone consulting; operational assistance; form changes; settings; server or workstation installation; and other support, such as preparatory work on systems and their environment, transport and testing relating to supplementary IT services.

Fault resolution is not included in support unless separately commissioned.

Where applicable, Sysfacts establishes a support service for enquiries about commissioned services. Response times and the available support allowance are defined at order placement.

1. Service delivery; quality of goods and services

Unless the nature of an order indicates otherwise, services under these terms are service-contract obligations. Obligations to deliver a specific work result require a separate express agreement. Legal or tax advice is not part of this contract.

Only the order placed determines the scope of Sysfacts services and the quality of goods or services. Public statements, pitches or brochures become contractual only if individually, expressly and in writing incorporated. The same applies to third-party statements, pitches and brochures in relation to Sysfacts or the customer.

Where applicable, services meet the state of technology at order placement unless the specification agrees different requirements.

Sysfacts may deliver services through its employees or competent third parties or subcontractors, such as a data centre operator, in compliance with applicable law, particularly data protection law. They do not become the customer's contractual partners.

Unless individually agreed otherwise at order placement, Sysfacts performs services on working days from 08:00 to 18:00.

Service and response times are finally defined at order placement.

The place of performance is Sysfacts' registered office.

Partial performance is permitted where it does not impose an unreasonable burden on the customer.

2. Customer obligations

Unless more specific provisions are agreed, the following customer obligations apply:

The customer shall support Sysfacts within its capabilities and create the conditions necessary for proper performance, particularly by providing relevant information. Questions about the customer's factual and legal circumstances relevant to the order shall be answered as completely, accurately and promptly as possible.

The customer shall grant necessary network permissions and ensure required access and entry authorisations for Sysfacts. It shall provide all necessary information and documents completely and in good time.

The customer must back up data before and during Sysfacts' work and verify that the backup succeeded. If it has not done so, it must inform Sysfacts.

Where access to contracted systems, servers, equipment or software requires an internet connection, the customer shall ensure availability and sufficient bandwidth. The customer has no damages or warranty claims based on an inadequate connection, but may prove that the damage would also have occurred with an adequate connection.

If the customer assigns staff or third parties to maintain contracted hardware or software, it shall ensure they are sufficiently qualified.

If customer-installed software, scripts, housed equipment or content stored by Sysfacts threatens the security or integrity of Sysfacts systems, communications networks or data, Sysfacts may, taking the customer's legitimate interests into account, immediately suspend the relevant components' network connection in whole or part, temporarily or otherwise. Sysfacts shall inform the customer without culpable delay.

If Sysfacts builds or installs employee workstations, the customer shall ensure each workstation complies with all employment and occupational-safety requirements.

The customer may perform vulnerability analyses or penetration tests on systems running on Sysfacts infrastructure only with Sysfacts' express written consent. On request, it shall provide all relevant information on the nature, scope and circumstances of the planned tests. Sysfacts shall refuse consent only for good cause.

3. Statutory access and disclosure obligations

Where the conditions of sections 95 or 103 of the German Code of Criminal Procedure (StPO) apply, Sysfacts may be legally required to grant investigators access to rooms, servers, customer-owned or stored items, storage media or data for searches, or to produce and surrender items as evidence. The customer acknowledges that Sysfacts is generally unable to refuse such access, including where the customer is subject to professional secrecy under section 203 of the German Criminal Code (StGB).

4. Offers

All Sysfacts offers are non-binding.

The customer shall carefully and diligently review offers, particularly where Sysfacts has made assumptions about customer circumstances underlying the calculation. If calculations, assumptions or circumstances are partly incorrect or incorrectly represented, the customer shall inform Sysfacts immediately. Sysfacts will correct the offer.

5. Delivery and transfer of risk

All deliveries are ex premises and at the customer's expense.

Sysfacts may make partial deliveries where not unreasonable for the customer.

Sysfacts is free to select suitable transport, including forwarding, parcel or freight services, and may transport goods itself.

On request, Sysfacts will arrange transport insurance at the customer's expense. This also applies where Sysfacts performs the transport itself.

Risk of loss, including accidental loss, and deterioration passes to the customer upon dispatch or handover to the shipping provider, regardless of the allocation of transport costs and even if Sysfacts carries out transport itself.

The customer is solely responsible for complying with international export rules. Sysfacts need not ship goods to recipients subject to export restrictions. If restrictions prevent performance, the customer shall provide a permissible alternative delivery address or collect the goods from Sysfacts.

6. Supplier delivery and impediments to performance

If Sysfacts does not receive hardware or software despite placing matching orders with reliable suppliers, it is released from its obligation and may withdraw from the contract. Sysfacts shall immediately notify the customer of unavailability and refund any payments already made.

Delayed or incomplete supplier delivery not attributable to Sysfacts extends the delivery period accordingly. The same applies to other impediments caused by force majeure, war, natural disasters, operational or transport disruptions not attributable to Sysfacts, or import restrictions.

A breach of the customer's cooperation obligations is treated as an impediment to performance.

7. Retention of title; rights of retention and intellectual property in documents

Sysfacts retains ownership of all delivered goods until all claims against the customer under the contract have been paid in full. This also applies where claims are included in a current account.

If third parties seize or otherwise access goods subject to retention of title, the customer must inform them of ownership and notify Sysfacts immediately in writing. On request, the customer shall provide written information about the goods' location and all details required to enforce rights. The customer bears Sysfacts' recovery costs.

If the customer defaults on payment, facts indicate possible grounds for insolvency under the German Insolvency Code, even before a filing obligation arises, or insolvency proceedings are requested, Sysfacts may demand return of goods subject to retention of title.

Items provided for testing or demonstration remain Sysfacts' property. Use beyond testing or demonstration requires a separate agreement.

Sysfacts may withhold all work results until its remuneration claims are paid in full, unless this would breach good faith in the circumstances, particularly where outstanding amounts are comparatively minor. All documents created for the customer remain Sysfacts' sole property or subject to its exclusive exploitation rights until outstanding remuneration is fully paid. This does not apply where special statutory provisions, such as data protection law, require delivery of work results.

8. Terms of use and copyright

Unless the preceding provisions specify otherwise, the following applies:

The customer may not remove existing or identifiable registration marks or copyright notices from goods supplied by Sysfacts unless authorised by law or contract.

Sysfacts grants time-limited, non-exclusive, non-transferable rights to use supplied software. Their scope depends on the licence acquired, whether single-user or multi-user. The customer may not enable use by unauthorised third parties.

The customer may not reproduce, distribute or otherwise make supplied software, documents or work results publicly available, particularly by renting, modifying or adapting them, unless legally authorised.

9. Remote maintenance

For remote maintenance, the customer shall describe faults and application problems as accurately as possible.

The customer must adequately protect data and IT systems through appropriate organisational and technical measures, such as antivirus software, firewalls and password protection. It is responsible for a current backup in an appropriate form that permits prompt and economically reasonable recovery.

If Sysfacts learns security-sensitive passwords during remote maintenance, the customer shall change them immediately after the session.

The customer authorises remote maintenance by confirming connection establishment. Internet communication between the parties begins only after confirmation. Data is encrypted in transit. Confirmation applies only to the active session and expires when it ends.

10. Time of delivery / performance

Dates are binding only if Sysfacts expressly confirms them as binding in writing.

For hardware or software deliveries, risk passes on handover to the customer or carrier. For services, risk passes upon acceptance or when services have been substantially performed in accordance with the contract.

11. Prices, remuneration and payment

Prices stated in the offer in euros apply, plus applicable VAT.

Delivery and transport costs are charged separately unless otherwise agreed at order placement.

Prices for contracted hardware and software are largely determined by manufacturers. Manufacturer price increases or reductions after contract conclusion are passed on unchanged to the customer.

Sysfacts may make hardware or software delivery or service performance conditional on advance payment.

The customer has a right of retention only for counterclaims acknowledged by Sysfacts in writing or established by a final judgment.

If service provision ends during performance, Sysfacts' remuneration is based on work already performed. If the order ends early for reasons attributable to the customer, Sysfacts is entitled to the full quoted remuneration, less saved expenses and earnings obtained, or maliciously forgone, through alternative use of freed capacity.

Sysfacts may issue invoices electronically.

12. Effort estimates

Effort estimates are non-binding and may change during performance. The customer may not rely on an estimate to refuse payment when it is exceeded.

13. Notice of defects; defects and warranty

Where rights relating to material or legal defects or warranties apply to the contracted services, the following applies:

Where applicable, defect claims require the customer to have properly inspected delivered goods under section 377 of the German Commercial Code (HGB).

The customer shall notify Sysfacts immediately upon discovering a defect and allow a reasonable period for remedy.

The customer shall describe faults, problems and the sequence of system failures as accurately as possible. If the description is insufficient for Sysfacts to understand, Sysfacts will indicate the shortcomings. If no more precise description can be provided, Sysfacts may charge additional diagnostic costs.

If Sysfacts creates or adapts goods or other products, including software, to customer specifications, it need not verify those specifications. The customer has no defect claims against Sysfacts arising from them.

Sysfacts may remedy the defect by repair or replacement at its discretion. If supplementary performance fails, the customer may reduce remuneration accordingly or withdraw from the contract.

14. Data protection and confidentiality

If Sysfacts processes the customer's personal data, the parties enter into a data processing agreement, attached to this contract as Annex 1.

Sysfacts and the customer shall keep confidential all information, including trade secrets, disclosed or otherwise learned in connection with this contract and its performance, and shall not disclose, transfer or otherwise use it for third parties. Information is confidential if marked as such or evidently confidential from the circumstances, regardless of whether communicated in writing, electronically, physically or orally. This obligation does not apply where disclosure is required by law, these terms or a final administrative or judicial decision. Both parties shall agree equivalent obligations with all employees and subcontractors.

The customer and Sysfacts shall treat all information exchanged during initiation and performance of business as confidential.

The parties expressly reserve the right to agree further secrecy and confidentiality obligations.

15. Liability

Sysfacts' liability, regardless of legal basis, is limited to foreseeable damage typical of the contract.

This limitation does not apply to breaches of essential contractual duties, meaning duties whose fulfilment enables proper contract performance and on which the customer regularly relies and may rely; injury to life, body or health; intentional or grossly negligent breaches by Sysfacts, its legal representatives or agents; liability under the German Product Liability Act; or claims under guarantees.

The customer is responsible for fulfilling all obligations and duties under these terms, particularly suitable, state-of-the-art data backup. It must ensure prompt and economically reasonable recovery of lost data. If it breaches these duties, Sysfacts' liability is limited to the damage that would have occurred had the customer properly complied.

The customer is responsible for a functioning internet connection from the relevant handover point. Sysfacts is not liable for damage caused by its absence.

Sysfacts retains the right to invoke contributory negligence.

The limitation period is one year, except for liability for injury to life, body or health, for which statutory limitation periods remain applicable.

16. Third-party and other guarantees

Third-party and other guarantees are performance commitments made to the customer by Sysfacts, manufacturers or suppliers. They create no obligation for Sysfacts unless it has expressly assumed the guarantee in writing. The same applies to assurances of quality.

References to norms, standards or certifications are not guarantees or other performance commitments, but parameters reflecting the current state of technology.

Sysfacts services relating to claims under third-party or other guarantees are charged as supplementary IT services.

17. Term and termination

Unless a specific term is agreed at order placement, the contract runs indefinitely. The term starts when the order is placed.

The term renews for one further year unless the relevant order is terminated in writing three months before expiry. Receipt of the termination notice by Sysfacts is decisive.

18. Final provisions

Changes to these terms prompted by changes in law, case law or economic circumstances will be communicated in writing or electronically for ongoing service or supply relationships, with amended provisions identified. They are deemed agreed if the customer continues the relationship without objecting within a reasonable period.

To the extent legally permitted and unless individually agreed otherwise, the place of performance is Sysfacts' registered office.

To the extent legally permitted, Sysfacts' registered office is the exclusive jurisdiction for disputes arising from or relating to contracts between Sysfacts and the customer. As claimant, Sysfacts may also choose the courts at the customer's registered office. The parties' rights to seek interim relief from courts competent under statutory rules remain unaffected.

If a provision is or becomes invalid, contains an impermissible time limit or has a gap, the remaining provisions remain effective. Unless invalidity results from a breach of sections 305 et seq. BGB, an effective provision closest to the parties' economic intent is deemed agreed in its place. The same applies to a gap. An impermissible time limit is replaced by the legally permissible period.