DE Updated: ◌ 30 • December • 2022
Preamble
Sysfacts AG is a consulting company operating throughout Europe with a focus on IT services. It offers companies and organizations individual solutions for the outsourcing and maintenance of their IT systems and infrastructure. This includes, among other things, the analysis, set-up, optimization and support of customer-owned IT systems, the management of customer-owned IT infrastructures and strategic consulting in the field of digitalization and virtualization.
I. Scope of Application; Conclusion of Contract
Please note that this version of our General Terms and Conditions is a translation of the German version. The German version is the authoritative and favorable document and can be viewed at https://sysfacts.com/de/gtc/.
The following general terms and conditions apply to all offers, order confirmations, deliveries and services of Sysfacts AG (hereinafter referred to as Sysfacts) to entrepreneurs within the meaning of § 14 BGB (hereinafter referred to as customers), legal entities under public law or special funds under public law or corporations.
They also apply, as far as applicable, to all additional services to be provided by Sysfacts and in particular also to any workshops or trainings by Sysfacts.
Conflicting general terms and conditions of business or purchase of the customer do not become part of the contract, even if Sysfacts does not contradict them again separately.
The contract is concluded upon acceptance of the offer by the customer (“placing of order”).
II. services of Sysfacts
1. managed services; monitoring
On request of the customers Sysfacts takes over services for the automation and virtualization of the entire customer-owned IT infrastructure (“Managed Services”) including their monitoring (“Monitoring”).
If commissioned, the use of Managed Services is intended to optimize and increase the availability of the customer’s own IT systems and structures. In addition to the improved scaling and plannability of the costs for the support of the IT systems, this can contribute to an increased efficiency of the work and business processes at the customer. Ideally, the customer can outsource his entire IT infrastructure to Sysfacts.
If contractually agreed, Sysfacts monitors the systems subject to the order with regard to endpoints, in particular domains, URLs, hostnames, websites and IP addresses using software suitable for this (“monitoring”). The final determination of the key points including possible benchmarks of the customer takes place with placing of order.
Monitoring is done remotely via the Internet.
Monitoring does not provide any protection for the customer’s systems. In particular, it does not protect against infestation by viruses, Trojans or similar malware. The monitoring service is limited to the collection, measurement and presentation of certain data. Additional IT security consulting or tests or analyses are not owed in the context of monitoring and are only carried out after separate and individual agreement with Sysfacts.
If there is an (acute) need for action due to the results of the monitoring, in order to maintain the integrity and confidentiality of the monitored systems, Sysfacts will only act on the specific instruction of the customer or on the basis of a previously given consent. The services of Sysfacts beyond the monitoring are subject to a separate agreement to be paid separately by the customer according to expenditure. The customer shall grant Sysfacts the necessary authorizations in the network as well as ensure the necessary access. The customer will provide Sysfacts with the necessary documents as well as information about the system components to be monitored completely and in time.
The customer is responsible for an adequate internet connection as well as for the necessary system requirements.
The customer can choose from different packages within the scope of managed services and monitoring by Sysfacts, which differ in terms of monitoring intensity and performance parameters.
The extent of the services of Sysfacts, in particular the definition of the customer’s own IT systems, IT structures and IT processes to be automated or optimized in each case is individually and finally determined with placing of order.
Sysfacts only takes over managed services for single or several services, which are ordered from Sysfacts by the customer on the basis of the following regulations. A further integration of external systems and services is not owed by Sysfacts, if not agreed individually.
The customer is aware that Sysfacts does not owe any troubleshooting in the provision of monitoring services on systems in principle. Measures for the elimination of errors and for the avoidance and elimination of critical operating states are only owed by Sysfacts if this was agreed upon when placing the order.
2. consulting services
Sysfacts takes over, if ordered by the customer, consulting and support services in the area of information technology and the structure and optimization of the IT processes. The definition of the scope, the service times and the concrete service levels for the consulting services are determined when placing the order.
If Sysfacts provides the services according to this regulation within the scope of a project of the customer, the responsibility for the project control and the project success lies exclusively with the customer.
Sysfacts renders the consulting services with the greatest possible care and conscientiousness according to the respective current state of the art. Sysfacts considers general process descriptions and industry standards (e.g. ISO, DIN) as well as specific regulations, methods and application practices of the customer, if applicable, after consultation and if reasonable in the individual case.
Sysfacts is basically free in the choice of the place of performance. If the activity requires the presence at a certain place, Sysfacts is obliged to perform there.
Consulting services on IT security issues of the customer or in the case that critical operating conditions become apparent in the context of monitoring and Sysfacts informs the customer about this, are not owed in the context of the consulting services of Sysfacts. Sysfacts takes over such consulting services only after separate and individual agreement with the customer.
3. server housing / colocation
Sysfacts provides the customer with a suitable parking space or space in a server rack for the accommodation of the customer’s own servers and supports the customer at his request with the connection to the customer’s own IT system. As far as individually agreed, the accommodation of further suitable objects (e.g. the customer’s IT system) can also be carried out by Sysfacts according to this regulation.
Services for operation and maintenance of the accommodated objects or systems are only provided by Sysfacts according to individual agreement with the customer or within the scope of the managed services according to number II. 1. of these regulations. The same applies to transports of objects to the respective server location. As far as Sysfacts supervises the accommodated objects, in this respect number II. 1. of these regulations as well as the scope of services determined with the placing of order apply supplementary.
The customer can take back the accommodated objects and systems at any time. The existence of the contractual relationship and the contractual remuneration shall not be affected by this in principle.
Services of Sysfacts in the transmission of data consist solely in the data communication between the transfer point of the own data communication network operated by Sysfacts to the internet and the objects or IT systems handed over by the customer. A data traffic beyond that is not owed by Sysfacts. At the transfer point (i.e. the router output at the used data center) the total availability of the services is at least 99% in the annual average.
The customer must report faults immediately to the contact details provided to him. Fault reporting is guaranteed on working days (excluding national holidays) between 9:00 a.m. and 6:00 p.m. (service hours).
The transfer and accommodation are limited in time to the duration of the contractual relationship.
Sysfacts is basically free in the selection of the respective server location, as long as the respective state of the art is maintained with regard to the respective services to be provided by Sysfacts.
The concrete specifications of the performance parameters regarding the type, quality and environmental conditions of the floor space to be provided, the server location, in particular the type and size of the space or spaces provided to the customer (including, if applicable, the spatial separation of objects and systems of other customers), the customer’s objects to be accommodated, the type and safeguarding of the power supply, the air-conditioning of the premises, fire, dust and dirt protection, access regulations, back-ups, data backups, the physical separation of mirrored systems, any monitoring intervals for network and / or infrastructure components, the type of connection to the Internet and the required transmission speed or availability shall be provided individually, insofar as relevant to the order, when the order is placed.
The customer does not acquire with the parking spaces or places provided by Sysfacts the right to provide them to third parties for commercial purposes.
4. server hosting
Sysfacts provides system resources on a virtual server to the customer on his request (server hosting).
Sysfacts enables the customer the access to the virtual server and the retrieval of the contents on it via the internet. The services for the transmission of data consist solely in the data communication between the transfer point of the own data communication network operated by Sysfacts to the internet and the server provided for the customer. A data traffic beyond this is not owed by Sysfacts. At the transfer point (i.e. the router output at the used data center) the total availability of the services is at least 99% on an annual average.
The Customer shall notify the Authorized Users that applications used will not be available for the duration of the respective maintenance periods. The customer is also aware that user accesses to the hosted system during maintenance can lead to delays in the maintenance times.
The customer shall report any malfunctions without delay to the contact data provided to him. A fault report is guaranteed on working days (excluding national holidays) between 9:00 a.m. and 6:00 p.m. (service hours).
The customer receives access data and user IDs from Sysfacts for access to the provided resources. These are to be stored by him in such a way that they are sufficiently protected from the knowledge of unauthorized persons.
The concrete determination of the performance parameters for the technical equipment of the server, as far as relevant to the order, takes place individually with the placing of the order. Likewise, as far as relevant to the order, a concrete determination of the storage space to be provided to the customer by Sysfacts as well as the data backups or back-ups to be carried out by Sysfacts (including the respective backup and back-up intervals to be observed and the type and quality of any data backups to be carried out) is made when the order is placed.
The services according to this clause are provided by Sysfacts for a limited period of time for the duration of the contractual relationship.
Sysfacts is entitled to have the services provided by qualified third parties or subcontractors (e.g. the operator of a data center) according to this regulation and in compliance with the legal regulations (especially according to the data protection law). These do not become contractual partners of the customer.
Sysfacts is basically free in the selection of any physical server locations, as long as the respective state of the art is maintained with regard to the services to be provided by Sysfacts.
The customer does not acquire with the use of the servers provided by Sysfacts the right to provide them to third parties for commercial purposes.
5. software transfer
If agreed upon placing the order, Sysfacts provides the customer with the contractual software for time-limited paid use by a limited number of users via the Internet by means of access through a browser. A physical transfer of software does not take place. The provision of the software access takes place via the servers of Sysfacts.
The software that is the subject of the contract, the number of authorized users and the duration of the software subscription shall be determined when the order is placed. Unless otherwise expressly agreed, the software to be delivered shall be standard software that is not individually tailored to the needs of the customer.
The customer can increase or reduce the number of authorized users according to the conditions applicable at the time of placing the order. Sysfacts provides the customer with the original user documentation of the manufacturer.
Sysfacts has to provide and maintain the contractual software to the customer in a condition suitable for the contractual use. The obligation to maintain does not include the adaptation to changed conditions of use or technical and functional developments.
Sysfacts also takes over the installation of software on the customer’s systems, as far as it is subject of the order. The customer has to ensure that all requirements of his system, especially the hardware environment and the connection to his network, are fulfilled at the beginning of the installation.
With regard to the rights of use of software, the license terms of the respective manufacturer shall apply. The customer is obliged to comply with these license terms. The license terms shall become effective directly between the manufacturer and the customer. These license terms shall be made available to the customer in advance at the customer’s request.
Sysfacts points out that it is impossible according to the state of the art to provide standard software error-free for all application conditions. The mere presence of an error therefore does not in itself represent a material defect.
The system environment of the customer can have an influence on the performance of Sysfacts. If the functionality of the software is reduced by these factors, this is not considered a defect.
A termination of the customer according to § 543 para. 2 p. 1 No. 1 BGB (German Civil Code) due to non-granting of the contractual use of software is only permissible if Sysfacts has been given sufficient opportunity to remedy the defect and this has failed. A failure of the defect removal is only to be assumed if this is impossible, if it is refused by Sysfacts or delayed in an unreasonable manner, if there are justified doubts regarding the prospects of success or if there is an unreasonableness for the customer for other reasons.
The rights of the customer due to defects are excluded, as far as he makes changes to the software or has them made without the consent of Sysfacts, unless the customer proves that the changes do not have an unreasonable effect on the analysis and elimination of the defects for Sysfacts. The rights of the customer remain unaffected, provided that he is entitled to make changes, in particular within the scope of the exercise of the right of self-remedy in accordance with § 536a Para. 2 BGB (German Civil Code) and these were carried out professionally and documented comprehensibly.
Sysfacts is entitled to have the services provided by qualified third parties or subcontractors (e.g. the operator of a data center) according to this regulation and in compliance with the legal regulations (especially according to the data protection law). These do not become contractual partners of the customer.
Sysfacts is basically free in the selection of any physical server locations, as long as the respective state of the art is maintained with regard to the services to be provided by Sysfacts.
The customer assures that the contents and data stored on the servers of Sysfacts as well as their use and provision by Sysfacts do not violate applicable law, official orders, rights of third parties or agreements with third parties. The customer will indemnify the provider from claims, which third parties assert due to a violation of this regulation, on first demand.
6. supplementary IT services; support
These supplementary IT services shall include, unless already covered by the contract under the preceding provisions, in particular the installation of software, the management and installation of updates and patches, the repair of hardware, training courses and workshops, user support (by telephone or remote maintenance), the connection of hardware, consulting (on site or by telephone), assistance with operation, the modification of forms, the making of settings, the installation of server or workstation stations and other support services such as, for example, preparatory services on the systems that are the subject matter of the contract and their environment.e.g. preparatory services on the contractual systems and their environment, transport services as well as the testing of systems with regard to supplementary IT services.
Any troubleshooting by Sysfacts is not owed within the scope of the support, unless they are otherwise separately commissioned.
If necessary, Sysfacts sets up a support service for the customer for inquiries about the ordered services. When placing the order, the response times and the support contingent available to the customer are determined.
III. general regulations
1. performance of services; quality of goods and services
Services of Sysfacts within the scope of these GTC are services, as far as nothing else results from the nature of the respective order. Sysfacts only provides services according to a separate and explicit agreement with the customer. Legal or tax advice is not subject of this contract.
For the scope of the services to be provided by Sysfacts only the placed order is decisive. This also applies with regard to the quality of goods or services. Public statements, pitches or brochures of Sysfacts only become part of the contract if they are included individually, in writing and expressly. The aforementioned also applies to public statements, pitches, brochures of third parties in relation to Sysfacts or the customer.
Sysfacts renders services which are the subject of the order – as far as applicable – according to the current state of the art at the time of placing the order, as far as no deviating requirements have been agreed upon within the scope of the service description.
Sysfacts is entitled to have the services which are the subject of the order performed by its own employees or also by expert third parties or subcontractors (e.g. the operator of a computer center) in compliance with the legal provisions (in particular according to the data protection law). These shall not become contractual partners of the customer.
Sysfacts renders its services on working days between 08:00 o’clock and 18:00 o’clock, as far as nothing else was individually agreed upon when placing the order.
Sysfacts service and response times are finalized when the order is placed.
Place of performance is the registered office of Sysfacts.
Partial performance is permissible, provided that this does not impose an unreasonable burden on the customer.
2. obligations of the customer
Unless otherwise specifically agreed with the customer in these provisions, the following shall apply with regard to the customer’s obligations:
The customer will support Sysfacts according to his possibilities and create all necessary conditions for the proper order management, in particular provide order-relevant information. Furthermore, all order-relevant questions from Sysfacts about the actual and legal circumstances of the customer will be answered as completely, accurately and quickly as possible.
The customer will continue to grant Sysfacts the necessary authorizations in the network and ensure the necessary access and access authorizations for Sysfacts. The customer will provide Sysfacts with the necessary information and documents completely and in time.
The customer is obliged to carry out a data backup before and during the service provision by Sysfacts and to check the successful completion of this data backup. If the customer has not done this, he is obliged to inform Sysfacts.
Insofar as an Internet connection is required for the customer to access systems, servers, objects or software that are the subject matter of the contract, the customer shall ensure the availability of the Internet connection and the existence of sufficient bandwidth. Damages or warranty claims of the customer based on an insufficient Internet connection shall not exist. The customer shall be at liberty to prove that damage would also have occurred if a sufficient Internet connection had been available.
Insofar as the customer commissions persons or third parties commissioned by it with the care or maintenance of hardware and software that is the subject matter of the contract, it shall ensure that the personnel deployed in each case are sufficiently qualified.
If a danger for the security or integrity of the systems, the communication networks and data of Sysfacts arises from the software installed at the customer, the scripts or the accommodated objects as well as contents stored by Sysfacts for the customer, Sysfacts reserves the right, taking into account the legitimate interests of the customer, to stop the connection of the components causing danger to the communication network completely, partially and / or temporarily with immediate effect. Sysfacts informs the customer in these cases without culpable delay.
If Sysfacts takes over set-up or installation work of computer workstations for employees of the customer, the customer has to ensure that the set-up of the respective computer workstation complies with all labor and occupational health and safety regulations.
The customer is in principle only authorized with the explicit and written consent of Sysfacts to carry out vulnerability analyses or penetration tests on systems which are operated on the infrastructure of Sysfacts. Upon Sysfacts’ request, the customer shall provide Sysfacts with all relevant information regarding the type, scope and other circumstances of the planned analyses or tests. Sysfacts will only refuse its consent for important reasons.
3. legal rights of access and duties of surrender
In the case that the conditions of § 95 or § 103 StPO are present, Sysfacts can be legally obligated to grant investigating authorities or persons access to rooms, servers, objects belonging to the customer and stored for him, storage media or data of the customer for search purposes or to present and deliver objects for evidence purposes on request. The customer is aware that Sysfacts is usually (e.g. in the case that the customer is subject to a professional secret according to § 203 StGB) not able to deny this access.
4. offer
All offers from Sysfacts are subject to change.
The customer has to check offers from Sysfacts carefully and conscientiously. This applies in particular to offers in which Sysfacts has made assumptions about offer-relevant circumstances at the customer, which are the basis of the offer calculation. In the event that calculations, assumptions or circumstances are partially incorrect or not correctly presented, the customer shall inform Sysfacts immediately. Sysfacts will correct the offer accordingly.
5. Delivery and transfer of risk
All deliveries are made ex house and at the expense of the customer.
Sysfacts is entitled to partial deliveries, as far as they are not unreasonable for the customer.
Sysfacts is free to choose the appropriate means of transport (forwarding agent, shipping service provider, freight). Sysfacts is entitled to carry out a transport itself.
At the request of the customer, Sysfacts will take out transport insurance at the customer’s expense for any deliveries. This also applies in the event that Sysfacts carries out the transport itself.
The risk of (also accidental) loss and deterioration of the delivery, regardless of the regulation of the transport costs, is transferred to the customer with delivery or handover to the service provider commissioned with the shipment, even if Sysfacts carries out the respective transport itself.
The customer is solely responsible for compliance and observance of international export regulations. Sysfacts is not obliged to ship goods or have goods transported to recipients who are subject to export restrictions. If in the case of such restrictions an obstacle to performance occurs, the customer will name Sysfacts a substitute address suitable for shipment or collect the goods subject to the order from Sysfacts himself.
6. self-delivery and obstacles to performance
If Sysfacts itself is not supplied with hardware and software, although it has placed congruent orders with reliable suppliers, Sysfacts is released from its obligation to perform and can withdraw from the contract. Sysfacts is obligated to inform the customer immediately about the unavailability of the service and will immediately refund any counter-performance already made by the customer.
A late or incomplete self-delivery of Sysfacts, for which Sysfacts is not responsible, results in the corresponding extension of the delivery period. This also applies to other obstacles to delivery or performance in the case of force majeure, war, natural disasters, operational and / or traffic disruptions or import obstacles for which Sysfacts is not responsible.
An impediment to performance shall be deemed to exist if the customer violates its obligations to cooperate.
7. retention of title; rights of retention and protection of documents
Sysfacts remains owner of all delivered goods until the complete payment of all existing claims against the customer from the contractual relationship. The same applies if the claims are taken over into a current invoice.
In case of access to the reserved goods by third parties, the customer is obligated to inform them of the ownership situation and to inform Sysfacts immediately in writing. The customer has to inform Sysfacts in writing about the whereabouts of the goods subject to retention of title upon request and to provide all information necessary for legal prosecution. The costs incurred by Sysfacts in connection with the recovery of the goods subject to retention of title are borne by the customer.
In case of default of payment by the customer, existence of facts which make the occurrence of the insolvency reasons mentioned in the insolvency regulations appear possible (even if these circumstances do not yet justify an obligation to file an application), or if the opening of insolvency proceedings is applied for, Sysfacts is entitled to demand the return of the reserved goods.
Items delivered for test and demonstration purposes remain the property of Sysfacts. They may only be used by the customer beyond the test or demonstration purpose on the basis of a separate agreement with Sysfacts.
Sysfacts can refuse the surrender of all work results until it is satisfied in full with regard to its remuneration claims. This does not apply as far as this would violate good faith according to the circumstances, in particular due to the relative insignificance of open remuneration claims. All documents, which Sysfacts has created for the customer within the scope of its services, remain the sole property or the exclusive right of exploitation of Sysfacts until the complete payment of open remuneration claims. This does not apply insofar as Sysfacts is obligated within the framework of special legal requirements (e.g. according to applicable data protection law) to hand over contractual work results.
8. terms of use and copyrights
Unless something more specific is agreed within the framework of the above provisions, the following shall apply:
The customer is prohibited from removing existing or recognizable registration marks or copyright notices from goods supplied by Sysfacts unless authorized to do so by law or contract.
Sysfacts grants the customer time-limited, non-exclusive and non-transferable rights of use to the delivered software. The extent of the rights of use depends on the type of the concretely acquired license (single or multiple license). The customer is prohibited from allowing unauthorized third parties to use the software.
The customer is also forbidden to copy, distribute or otherwise make publicly available software or documents or work results provided by Sysfacts, in particular to rent, change or process it, unless he is legally authorized to do so.
9. remote maintenance
In case of remote maintenance by Sysfacts, the customer has to describe errors or application problems as precisely as possible.
The customer is obligated to sufficiently protect its data and IT systems by means of suitable organizational and technical precautions (e.g. virus scanner, firewall, password protection). The customer shall be responsible for an up-to-date data backup in an appropriate form. This backup must also guarantee a timely and economically reasonable recovery of the data.
If Sysfacts learns security relevant passwords during the remote maintenance, the customer has to change them immediately after the end of the remote maintenance.
The customer authorizes the remote maintenance by a corresponding confirmation when establishing the connection. Only after this confirmation is communication established via the Internet between the two participants. The transmission of the data is encrypted. The confirmation is only valid for the respective active session and expires after its completion.
10. time of delivery / service
Dates are only binding if they have been expressly confirmed in writing as binding by Sysfacts.
In the case of delivery of hardware or software, the risk shall pass upon handover to the customer or carrier. In the case of the provision of services, the risk shall pass upon acceptance or when the services have essentially been provided in accordance with the contract.
11. Prices, remuneration and payment
The prices stated in the offer in Euro plus the applicable value added tax shall apply.
Delivery and transport costs shall be charged separately, unless otherwise agreed in the context of the order placement.
The prices for any hardware and software that are the subject matter of the contract shall be determined by the respective manufacturers. If the manufacturer increases or reduces the price after conclusion of the contract, this shall be passed on to the customer unchanged.
Sysfacts is entitled to make the delivery of software or hardware or the provision of services dependent on an advance payment.
The customer has a right of retention only in case of counterclaims recognized in writing by Sysfacts or legally established.
If the provision of services ends during the execution of services which are the subject of the order, the amount of the remuneration claim of Sysfacts is based on the scope of the services already provided. If the order is terminated prematurely for reasons for which the customer is responsible, Sysfacts is entitled to the full remuneration according to the offer. Sysfacts will however take into account what it saves in expenses and / or can achieve through other use of the freed capacities or maliciously refrains from achieving.
Invoices can also be transmitted electronically by Sysfacts.
12. effort estimates
Effort estimates made by Sysfacts are not binding and can change in the course of the service provision. The customer cannot refer to an effort estimate and refuse payment in case of an overrun.
13. complaint; defects and warranty
Insofar as material or legal defects or warranty rights apply to the services covered by the order, the following shall apply:
The customer may, as far as applicable, only invoke defect rights if he has properly inspected delivered goods (§ 377 HGB).
After detection of a defect the customer has to inform Sysfacts immediately. He grants Sysfacts a reasonable period of time to remedy the defect.
The customer will describe occurring errors and problems or the sequence of system failures as accurately as possible. If a comprehensible description for Sysfacts is missing, Sysfacts will point out the deficiencies of the error description to the customer. If a more exact description cannot be made, Sysfacts is entitled to the additional calculation of the additional error diagnosis costs.
If Sysfacts creates goods or other products (including software) according to the customer’s specifications or adapts goods or other products according to the customer’s specifications, Sysfacts is not obliged to check these specifications in any way. The customer cannot make any claims against Sysfacts for defects based on these specifications.
Sysfacts will remedy the defect at its discretion by rectification or delivery of a defect-free item. In case of failure of the supplementary performance the customer can reduce the payment accordingly or withdraw from the contract at his choice.
14. data protection and confidentiality
If Sysfacts processes personal data of the customer, an agreement on commissioned processing is concluded between Sysfacts and the customer. This is attached to this contract as Annex 1.
Sysfacts and the Customer undertake to keep confidential all confidential information (including trade secrets) disclosed or otherwise learned in connection with this contract and its performance and not to disclose, pass on or otherwise use such information to third parties. Confidential information in this context is information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. The confidentiality obligation does not apply, as far as Sysfacts or the customer is obliged to disclose the confidential information by law, on the basis of these regulations or due to a final or legally binding authority or court decision. The customer and Sysfacts commit themselves to agree with all employees and subcontractors a regulation with the same content as the previous paragraph.
The customer and Sysfacts commit themselves to treat all information, which they mutually exchange in the context of the business initiation and execution, confidentially.
The contracting parties expressly reserve the right to enter into further secrecy and confidentiality obligations.
15. liability
The liability of Sysfacts, no matter for what legal reason, is limited to the contract-typical foreseeable damage.
This does not apply to the violation of essential contractual obligations, i.e. contractual obligations, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely (cardinal obligations), for damages to body, life and health, for intentional or grossly negligent breaches of duty by Sysfacts, its legal representatives or vicarious agents, for liability under the Product Liability Act or for claims arising from guarantees.
The customer shall be responsible for fulfilling all duties and obligations under these provisions, in particular for backing up its data in a suitable and state-of-the-art manner. In particular, he shall ensure that a prompt and economically reasonable recovery of lost data is guaranteed. In case of a breach of these duties and obligations Sysfacts is only liable for the amount of damage which would have occurred in case of regular fulfillment of duties by the customer.
The customer is responsible for a functioning internet connection from the respective transfer point. Sysfacts is not liable for damages resulting from a lack of connection.
Sysfacts is free to raise the objection of contributory negligence.
The limitation period shall be one (1) year. Excluded from this is the liability for damages to body, life and health, for which the statutory limitation period remains in effect.
16. (third-party) guarantees
(Third party) guarantees are performance promises given by Sysfacts or manufacturers or suppliers to the customer. They do not justify any obligation of Sysfacts, unless Sysfacts has expressly declared the acceptance of the guarantee in writing. The same applies to promises of quality.
Information on norms, standards or certifications are not guarantees or other performance commitments, but performance parameters that represent the current state of the art.
Services of Sysfacts in the context of the assertion of (third party) warranties are charged as supplementary IT service.
17. Term and termination
Unless a specific term is agreed when the order is placed, the contract shall run for an indefinite period. The term of the contract shall commence upon placement of the order.
The term is extended in each case by one (1) further year if the respective order is not terminated in writing three (3) months before expiry of the contract term. The receipt of the termination letter at Sysfacts is decisive.
18. final provisions
Amendments to these provisions which are indicated due to changes in the law, changes in case law or changes in the economic circumstances shall be notified to the customer in writing or electronically in the case of continuing obligations or delivery relationships, marking the amended provisions, and shall be deemed agreed if the customer continues the continuing obligation or delivery relationship without objecting within a reasonable period of time.
Place of performance is, as far as this is legally permissible and nothing different has been agreed individually, the place of business of Sysfacts.
The exclusive place of jurisdiction for all disputes arising from and in connection with contracts between Sysfacts and the customer is, as far as this is legally permissible, the place of business of Sysfacts. Sysfacts as plaintiff is also entitled to choose the place of jurisdiction at the customer’s place of business. The right of the contracting parties to seek interim legal protection before the courts responsible according to the legal regulations remains unaffected.
Should any provision of these GTC be or become invalid, contain an inadmissible deadline provision or a loophole, the legal validity of the remaining provisions shall remain unaffected. Insofar as the invalidity does not result from a violation of §§ 305 ff. BGB (German Civil Code), the invalid provision shall be replaced by a valid provision which comes closest to the economic intentions of the contracting parties. The same shall apply in the event of a loophole. In the event of an invalid term, the legally permissible term shall apply.
Status: September 23, 2022