Terms & Conditions
1. General, scope
1.1 The general terms and conditions (hereinafter “GTC”) of MDSYSTEC GmbH (hereinafter “mdSystec”) consist of these framework terms and conditions, as well as the additional special contractual conditions (hereinafter “BVB”) of the various business areas (such as “BVB Hosting”, “BVB Domains”, “BVB SaaS”, “BVB Software Maintenance”, “BVB Managed Services” and “BVB Hardware”). In the following, the abbreviation “AGB” is used for the framework terms and conditions and BVB in their entirety.
1.2 These terms and conditions govern business transactions with commercial customers (hereinafter “entrepreneurs” or “customers”). Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity who, when concluding the legal transaction, act in the exercise of their commercial or independent professional activity.
1.3 If the contract is concluded, the contract is concluded with the following company:
MDSYSTEC GmbH
Part of the MDS Group
Fraundorf 9c
84335 Mitterskirchen
germany
MDSYSTEC GmbH, which is represented by the managing director Mr. Dieter Miedl
1.4 For all deliveries and services provided by mdSystec, these terms and conditions apply exclusively in the version valid at the time of conclusion of the contract. Other terms and conditions, in particular customer terms and conditions, do not become part of the contract even if they have not been expressly objected to.
1.5 These terms and conditions also apply to future business relationships with entrepreneurs, without the need for a new express reference.
1.6 The binding contract language is exclusively German, even if these terms and conditions are or have been translated into other languages.
1.7 mdSystec is entitled to amend these terms and conditions even within existing contractual relationships with effect for the future, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
2. Conclusion of contract, execution of contract
2.1 The presentation of mdSystec's services does not represent a binding offer. Rather, it is a non-binding request to customers to submit a binding offer (hereinafter referred to as “assignment”).
2.2 By placing an order, the customer binds his contract offer. If mdSystec has confirmed receipt of the order, this does not yet represent a binding acceptance of the order by mdSystec. The confirmation of receipt can be combined with a declaration of acceptance.
2.3 Orders are only binding for mdSystec if mdSystec confirms them or complies with them by executing the order. mdSystec is entitled to accept the contract offer in the order within seven working days (excluding Saturday, Sunday and public holidays) of receipt.
2.4 Insofar as mdSystec provides free services or services, these may be discontinued or amended at any time with a notice of two weeks. This does not result in a claim for reimbursement or compensation.
2.5 mdSystec reserves the right to use carefully selected and supervised vicarious agents in full or in part to fulfill contractual obligations. In this case, these vicarious agents will not become the customer's contractual partners.
3. Collaboration
3.1 The parties work together in confidence and inform each other immediately if there are any deviations from the agreed procedure or if there is any doubt as to the correctness of the other's approach. This does not establish a corporate connection between mdSystec and the customer.
3.2 If the customer recognizes that his own information and requirements are incorrect, incomplete, ambiguous or impracticable, he must immediately notify mdSystec of this and the consequences apparent to him.
3.3 The parties name each other contacts and their representatives, who are responsible and expert in managing the execution of the contractual relationship for the contracting party designating them and who can make binding decisions. The parties recognize that only these named contacts can make binding decisions. The contacts agree at regular intervals on progress and obstacles in the execution of the contract in order to be able to steer the execution of the contract if necessary.
3.4 The parties must immediately notify each other of changes in the named persons. Until such notification is received, the previously named contact persons and/or their representatives shall be considered entitled to make and receive declarations within the framework of their previous power of representation.
4. Customer's obligations to cooperate
4.1 The customer supports mdSystec in fulfilling their contractually owed services. This includes in particular the timely provision of information, content, data material as well as hardware and software, insofar as the customer's cooperation services require this. The customer will instruct mdSystec in detail regarding the services to be provided by mdSystec, unless otherwise agreed.
4.2 The customer provides the required number of employees to carry out the contractual relationship, who have the necessary expertise.
4.3 If the customer has committed himself to mdSystec as part of the execution of the contract (image, sound, text, etc.) To procure materials, the customer must provide them immediately and in a standard, immediately usable format that is as digital as possible. If it is necessary to convert the material provided by the customer into another format, the customer assumes the costs incurred for this. The customer ensures that mdSystec receives the necessary rights to use these materials.
4.4 If mdSystec's activity requires physical or digital access, access and/or access, the customer must make this possible.
4.5 Cooperation is carried out by the customer at his own expense.
4.6 The customer's obligation to cooperate represents a main service obligation.
4.7 For third parties who, at the instigation or with the consent of the customer, work for him in the area of MDSystec's activities, the customer must be responsible as vicarious agents. mdSystec is not responsible vis-à-vis the customer if, as a result of the conduct of one of the aforementioned third parties, mdSystec is unable to fulfill its obligations towards the customer in whole or in part or is unable to fulfill them on time.
5. Appointments
5.1 Information on dates for the provision of services by mdSystec is understood as expected dates and is not binding unless a binding date has been expressly stated in writing by mdSystec. On the part of mdSystec, appointments for the provision of services can only be confirmed by the contact person.
5.2 Delays in performance due to force majeure (e.g. strike, lockout, official orders, general telecommunications disruptions, etc.) and circumstances within the customer's area of responsibility (e.g. failure to provide cooperation services in time, delays by third parties attributable to the customer, etc.) is not responsible for MDsystec and entitle MDsystec to postpone the provision of the affected services for the duration of the obstruction plus a reasonable start-up time. mdSystec will notify the customer of delays in performance due to force majeure.
6. Changes in performance
6.1 If the customer wishes to change the contractually defined scope of the services to be provided by mdSystec, he will express this change request in text form to mdSystec. The further procedure is governed by the following provisions. For requests for changes that can be reviewed quickly and expected to be implemented within 8 working hours, mdSystec may, at its own discretion, refrain from the procedure set out in sections 6.2 to 6.5.
6.2 mdSystec is examining what effects the desired change will have, in particular with regard to remuneration, additional expenses and deadlines. If mdSystec recognizes that the services to be provided cannot be carried out or can only be carried out with a delay as a result of the audit, mdSystec will inform the customer of this and point out that the change request can only be reviewed if the affected services are postponed for an initially indefinite period of time. If the customer agrees to this postponement, mdSystec will review the change request. The customer is entitled to withdraw his change request at any time; the initiated change process then ends.
6.3 After examining the change request, mdSystec will explain to the customer the effects of the change request on the agreements made. The presentation contains either a proposal for implementing the change request or information as to why the change request cannot be implemented.
6.4 The contracting parties will immediately vote on the content of a proposal for the implementation of the proposed amendment and attach the result of a successful vote to the text of the agreement to which the amendment relates as a supplementary agreement.
6.5 If an agreement is not reached or if the amendment process ends for another reason, the original scope of services remains the same. The same applies in the event that the customer does not agree to postpone the services to continue carrying out the audit in accordance with Section 6.2.
6.6 The dates affected by the amendment procedure will be postponed as necessary, taking into account the duration of the review, the length of the vote on the proposed amendment and, where applicable, the length of the change requests to be carried out, plus a reasonable start-up period. mdSystec will inform the customer of the new process.
6.7 The customer must bear the expenses arising from the change request. This includes in particular the review of the change request, the preparation of a change proposal and any downtimes. In the event that an agreement has been reached between the parties on the basis of time spent, the expenses will be calculated in accordance with this, otherwise according to the usual remuneration provided by mdSystec.
7. Remuneration, expenses
7.1 MDsystec is generally remunerated on the basis of time and/or material expenditure, which is billed monthly. Unless otherwise agreed, the remuneration rates of mdSystec are decisive for the remuneration of expenses.
7.2 The remuneration agreement based on expenditure of time and/or material also applies to future business relationships with customers who are not consumers, without the need for a further express reference.
7.3 Cost estimates, estimates or budget plans prepared by mdSystec are non-binding. If the customer has been given a cost estimate or an estimate of the time and/or material required, billing is based on actual time and/or material consumption. If it is foreseeable that the estimated time and/or material costs will be exceeded, mdSystec will immediately inform the customer of this.
7.4 Upon proof, the customer bears all expenses, in particular travel and accommodation costs, expenses and third-party payment claims and license costs arising as part of the execution of the contract.
7.5 Travel time is considered to be billable time, unless otherwise agreed. When traveling by car, the individual mileage rate is considered agreed. When traveling by train, first class is considered agreed.
7.6 For processing orders with third parties whose costs are passed on directly to the customer, mdSystec may charge an expense allowance of 15%.
7.7 If the parties have not reached an agreement on the remuneration of a service from mdSystec which, in the circumstances, the customer could only expect to provide in return for remuneration, the customer must pay the usual remuneration for this service. In case of doubt, the remuneration rates required by mdSystec for its services are considered usual.
7.8 Suggestions and instructions from the client, whether for design, technical or other reasons, and his other cooperation do not affect the remuneration regulation.
7.9 When shipping, the remuneration plus an appropriate shipping fee is at least six euros.
7.10 All fees are exclusive of the applicable statutory value added tax.
8. Rights
8.1 The orders placed by mdSystec for media design, database and software development and/or conception are always copyright contracts, which as such are aimed at granting rights of use to work services. mdSystec expressly reserves all copyright, usage and/or ancillary copyright rights as well as other property rights to the services created and other work results.
8.2 The application of the provisions of copyright law is also agreed between the parties in the event that the services provided by mdSystec do not reach the amount required in accordance with § 2 UrhG.
8.3 Unless otherwise agreed, mdSystec generally grants the customer the simple, nationally limited right to use these services for one year for the respective type of use. In the case of continuing obligations, these rights are granted for their duration and automatically revert to mdSystec after their termination, without the need for an express declaration.
8.4 Any further use than described in Section 8.3 or otherwise agreed upon is prohibited, without prejudice to Section 8.5. In particular, the customer is prohibited from granting sublicenses and processing, duplicating, leasing or otherwise exploiting the services without the consent of mdSystec.
8.5 Any use other than the contractually agreed upon use requires MDsystec's consent in writing. Consent for use other than the contractually agreed use, in particular for processing, multiple uses (e.g. for another medium or product) or repetitions (e.g. reprints), may be subject to additional remuneration.
8.6 Rights of use will only be granted upon payment of full remuneration. Until full payment of remuneration, the customer is only allowed to use the services provided revocably. mdSystec may cancel and/or discontinue the use of such services, whose payment of remuneration the customer is in default, for the duration of the delay.
8.7 Suggestions and instructions from the client, whether for design, technical or other reasons, and his other cooperation do not constitute co-copyright, unless this has been expressly agreed.
9. Violations of rights, exemption from liability
9.1 The customer releases mdSystec from all claims that third parties assert against mdSystec as a result of the culpable infringement of their rights and/or legal interests by the customer. This also applies insofar as only mdSystec appears externally and the customer has only acted culpably with mdSystec internally.
9.2 The customer assumes the costs of the necessary legal defense from mdSystec, including all court and attorney fees in the amount of law. This does not apply if the customer is not responsible for the infringement.
9.3 In the event of a claim by third parties, the customer is obliged to immediately, completely and truthfully provide mdSystec with all information, in particular previous correspondence, that is necessary to verify the claims and defend them.
9.4 In the event of violations of rights, mdSystec may, at its own discretion, make changes to the affected service which, while protecting the interests of the customer, guarantee that an infringement no longer exists or acquire the necessary rights of use for the customer.
9.5 If the customer is unable to reach, mdSystec may initially discontinue or switch off the affected service in order to remedy the infringement in the short term.
10. Guarantee
10.1 Claims due to defects are governed by statutory provisions within the statutory time limits, unless otherwise stated in the following provisions of this section.
10.2 For entrepreneurs, the warranty period is one year from acceptance of the work or delivery of the goods or from provision of the service.
10.3 An insignificant impairment of the function of software is not considered a material defect insofar as this cannot be expected after appropriate objective consideration.
10.4 In the event of only a minor lack of conformity, in particular in the case of only minor defects, the entrepreneur has no right of withdrawal. If mdSystec is not responsible for the breach of duty resulting from a defect, the entrepreneur is not entitled to withdraw from the contract. Entrepreneurs can only resign due to a breach of duty that does not consist of a defect in the work if mdSystec is responsible for this breach of duty.
10.5 In the event of defects in the goods, mdSystec shall, at the option of mdSystec, rectify the defect or deliver a defect-free item to entrepreneurs.
10.6 Entrepreneurs must report obvious defects to mdSystec within a period of two weeks from receipt; otherwise, the assertion of a warranty claim is excluded. Section 377 of the German Commercial Code applies to merchants; merchants are obliged to file complaints in writing. Entrepreneurs must report transport damage immediately upon unloading/delivery and have them confirmed in writing by the unloading staff or the driver.
10.7 In the case of entrepreneurs, only the product description from mdSystec is generally considered agreed, unless there is any other expectation after appropriate objective consideration. In addition, public statements, promotions or advertising by the manufacturer do not represent a contractual nature. Warranty claims due to hidden defects against entrepreneurs are also excluded if the service actually delivered corresponds to the sample or sample. The usual industry tolerances are considered agreed.
10.8 In the event of supplier recourse, the liability and warranty limitations set out in this section do not apply, with the exception of Section 10.6.
10.9 The shortened warranty periods and the liability and warranty limitations set out in this section do not apply where intent or gross negligence is attributable to mdSystec, nor in the event of personal injury attributable to mdSystec or malice. Liability under the Product Liability Act also remains unaffected.
11. Liability
11.1 mdSystec is only liable in the event of its own fault and in the event of the fault of its legal representatives, executives or other vicarious agents, in accordance with the following regulations.
11.2 MDsystec is fully liable for damage caused intentionally or grossly negligently by mdSystec or by legal representatives, senior employees or simple vicarious agents of mdSystec, as well as in cases of malice and in the event of culpable injury to life, body or health (personal injury). mdSystec is also fully liable under the Product Liability Act.
11.3 In the event of a slightly negligent breach of an obligation whose compliance could be relied upon and whose fulfilment makes the proper execution of the contract possible in the first place (cardinal obligation), the obligation to pay compensation is limited to such damages, the occurrence of which must typically be expected within the framework of the present contractual relationship (foreseeable damage typical of the contract). In addition, liability for slightly negligent damage is excluded.
11.4 mdSystec is not liable for damage, failures or data loss caused by faults to telephone lines, servers and other equipment that are not within its area of responsibility. In addition, mdSystec is not liable for damage, failures or data loss caused by force majeure.
11.5 mdSystec is only liable for the services and services provided by mdSystec free of charge (including the retrieval of free content) insofar as the damage has arisen as a result of the contractual use of the free content and/or services and/or services and/or services, and only in the event of intent (including malice) and gross negligence as well as in the event of personal injury and in accordance with the Product Liability Act.
11.6 Users are responsible for backing up their data themselves. In particular, mdSystec does not perform a backup and is not responsible for the accidental loss of data.
12. limitation period
Claims by mdSystec against entrepreneurs aimed at remuneration expire after five years at the earliest.
13. Retention of title
13.1 In order to secure the compensation claim against the customer, mdSystec generally reserves the right of ownership of goods and/or works (reserved goods) until full payment of the remuneration.
13.2 If the customer is a merchant, mdSystec reserves the right of ownership of goods and/or works until full settlement of all claims arising from the ongoing business relationship.
13.3 The customer is entitled to resell goods, works and/or other services in the ordinary course of business. He hereby assigns to mdSystec all claims in the amount of the invoice amount that he accrues against a third party as a result of the resale. mdSystec accepts the assignment. After the assignment, the customer is also authorized to collect the claim. However, mdSystec reserves the right to collect the claim itself as soon as the customer fails to meet his payment obligations and is in default of payment.
13.4 The processing and processing of goods and/or works by the customer is always carried out in the name and on behalf of mdSystec. If the purchased item is inseparably mixed with other objects that do not belong to mdSystec, mdSystec acquires joint ownership of the new item in proportion of the value of the purchased item (invoice amount) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer's item is regarded as the main item, it is considered agreed that the customer transfers joint ownership to mdSystec on a pro rata basis. The customer stores the resulting sole or joint ownership for mdSystec.
13.5 If reserved goods from the customer are combined with the property of a third party, the customer hereby assigns to mdSystec the claims against the third party arising from the connection with all ancillary rights; mdSystec accepts the assignment.
13.6 Pledges or security transfers relating to the goods (co-) owned by mdSystec are prohibited. In the event of seizure or other intervention by third parties in the reserved goods, the customer must immediately point out the ownership of mdSystec and immediately inform mdSystec in text form, in particular the documents necessary for the objection.
13.7 The right to resell, use or install the reserved goods expire upon application to open insolvency proceedings, suspend payments or carry out an out-of-court settlement procedure.
13.8 The customer is obliged to handle and store the reserved goods with care. In particular, he is obliged to insure them at his own expense against fire, water, natural, property and theft damage and at replacement value. If maintenance and inspection work is required, the customer must carry it out on time and regularly at his own expense.
13.9 Until full payment of remuneration, the customer is only allowed to use the services, goods and/or works provided revocably. mdSystec may revoke and/or discontinue the use of such services, goods and/or works whose remuneration payments the customer is in default with, for the duration of the delay, upon prior threat.
13.10 If service settings are discontinued in accordance with Section 13.9, mdSystec may make the reactivation of the service subject to a reactivation fee of 100.00 euros.
13.11 mdSystec is obliged to release the securities to which it is entitled at the customer's request, provided that their value exceeds the claims to be secured by more than 20 percent.
14. delivery
14.1 mdSystec assumes no procurement risk and is only liable for timely delivery for its own fault and for the fault of its legal representatives, executive employees or other vicarious agents in accordance with the following regulations.
14.2 Information on delivery dates is understood as expected delivery times and is non-binding unless a binding delivery date has been expressly stated in writing by MDsystec. On the part of mdSystec, delivery dates can only be confirmed by the contact person.
14.3 mdSystec is entitled to make partial deliveries and/or partial services if these are reasonable for the customer. In the case of final partial deliveries and/or partial services where complete delivery and/or service is no longer possible, the remuneration is reduced accordingly.
14.4 All deliveries are made ex factory or warehouse.
14.5 Shipping and transportation are at the customer's risk. The risk is transferred to the customer at the latest as soon as the shipment has been handed over to the person carrying out the transport.
14.6 Upon notification of readiness for shipment to the customer, the risk of accidental loss or accidental deterioration is transferred to the customer, provided that dispatch is delayed for reasons that lie with the customer. After transfer of risk, the customer bears the costs of storing the goods. Further claims remain unaffected by this.
14.7 If the ordered goods cannot be delivered because mdSystec is not delivered by the supplier despite its contractual obligation through no fault of their own and with due care, both parties are entitled to withdraw from the contract. In this case, the customer will be immediately informed that the ordered goods are no longer available. In the event of withdrawal, regardless of which party, mdSystec will immediately reimburse the customer for the consideration already paid. In this case, mdSystec is not liable for compensation.
14.8 When downloading and sending data via the Internet, the risk of loss and alteration of the data is transferred to the customer as soon as the first network interface is crossed.
14.9 Delivery delays due to force majeure (e.g. strike, lockout, official orders, general telecommunications disruptions, etc.) and circumstances within the customer's area of responsibility (e.g. failure to provide cooperation services on time, delays by third parties attributable to the customer, etc.) is not responsible for MDsystec and entitle MDsystec to postpone delivery for the duration of the hindrance plus a reasonable start-up time. mdSystec will notify the customer of delivery delays due to force majeure.
14.10 The limitations of liability set out in this section do not apply if intent or negligence is attributable to mdSystec, nor in the event of personal injury attributable to mdSystec or malice. The provisions of the Product Liability Act also remain unaffected by this.
15. export clause
15.1 The (resale) sale of deliveries and services may be subject to German, EU or US export control law and, if applicable, the export control laws of other countries. A (further) sale to embargoed countries and/or to blocked persons and/or to persons who can use the supplies and services for weapons, nuclear technology or military purposes is subject to approval.
15.2 It is the customer's responsibility to check and, if necessary, establish compliance with export control legislation.
15.3 mdSystec is entitled to refuse to fulfill the contract if the fulfilment of the contract would violate export regulations. In this case, the customer must be informed immediately and given the opportunity to establish legal compliance. If legal compliance is still not established after that, mdSystec is entitled to withdraw from the contract. In this case, mdSystec will immediately reimburse the customer for the consideration already paid. In this case, mdSystec is not liable for compensation. The latter does not apply if mdSystec is accused of intent or negligence, nor in the event of personal injury attributable to mdSystec or malice.
16. Confidentiality
16.1 As part of the joint cooperation between the contracting parties, confidential information and documents relating to each other's areas of competence may be disclosed. The parties therefore conclude the following agreement for the purpose of preventing the transfer of this confidential information and documents to unauthorized third parties.
16.2 The parties agree not to make the confidential information and documents of the other contracting party disclosed in connection with the joint cooperation available to third parties, in whatever form, unless they are intended to be made available to third parties. Third parties are not the assistants called in to implement the contractual relationship, such as freelancers, subcontractors or professionals who are bound to secrecy by law.
16.3 The terms of this section will continue to apply for a period of six years even after the performance, termination, or rescission of this Agreement. Insofar as trade secrets within the meaning of the Trade Secrets Protection Act (GeschGehG) are concerned, they are valid for an unlimited period of time.
16.4 If a contracting party so requests, the documents provided by it, such as strategy papers, briefing documents, etc. must be handed over to it after the end of the contractual relationship or demonstrably destroyed, provided that the other contracting party cannot assert a legitimate interest in these documents.
17th hosting
Our hosting services are also subject to our Special Hosting Contract Terms (BVB Hosting).
18. domains
In addition, our special contract conditions for domains (BVB domains) apply to our services in the area of domains.
19. Software as a Service (SaaS)
Our Software as a Service (SaaS) services are also subject to our SaaS Special Contractual Terms (BVB SaaS).
20. software maintenance
Our software maintenance services are also subject to our Special Software Maintenance Contract Terms (BVB Software Maintenance).
21. Managed Services (MS)
Our Managed Services (MS) services are supplemented by our Special Managed Services (BVB MS) contract conditions.
22. hardware
Our hardware services are also subject to our Special Hardware Contract Terms (BVB Hardware).
23. Prohibition of assignment
The assignment of claims against mdSystec to third parties is excluded insofar as the customer is an entrepreneur. § 354a HGB remains unaffected by this.
24. Reference
mdSystec may name the customer as a reference customer on its website or in other media. mdSystec may also reproduce, distribute, publicly reproduce or make publicly available the services provided for demonstration and/or advertising purposes, unless the customer has asserted a conflicting legitimate interest in writing.
25. Final provisions25.1 These terms and conditions and all contracts and/or legal relationships arising with customers are exclusively subject to German law to the exclusion of the UN Sales Convention (CISG).
25.2 With regard to entrepreneurs, the place of fulfilment for all contractual and legal relationships is the registered office of mdSystec. This also applies to subsequent performance.
25.3 If the parties are merchants within the meaning of the Commercial Code, special funds under public law or legal entities under public law, the registered office of mdSystec is the exclusive place of jurisdiction for all claims arising from the legal relationship with the customer. This also applies to customers who have no general place of jurisdiction in the European Union and to customers who, after conclusion of a contract, have moved their place of residence or habitual residence to a country outside the European Union. Irrespective of this, mdSystec is also entitled to sue the customer at its general place of jurisdiction.
Special contract conditions: Hosting (BVB: Hosting) (as of 12/2021)
1. General, scope
1.1 These special contract conditions: Hosting (hereinafter: “BVB Hosting” or “BVB”) apply in addition to the general terms and conditions and all contracts that MDSystec provides in the area of providing storage space and/or providing hardware and software to provide storage space for retrieving data via the Internet.
1.2 mdSystec is entitled to change this BVB with effect for the future, even within the existing contractual relationships, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
2. Hosting services
2.1 mdSystec provides the customer with storage space on any storage medium (e.g. hard disk) and/or hardware and software to provide storage space for retrieving data via the Internet for use in accordance with the following provisions.
2.2 The exact scope of mdSystec's services is set out in the service description. The scope and prices for additional services are set out in the current price list.
2.3 mdSystec will provide, grant and maintain the connection between the storage space and the Internet so that the data stored there will be forwarded on the Internet by external computers upon request.
2.4 mdSystec owes an effort to ensure that the data stored by the customer in accordance with the contract can be accessed by the public around the clock via the network maintained by mdSystec and the connected Internet. However, mdSystec assumes no responsibility for the success of the respective access to the data, unless only the network operated by mdSystec, including its own interfaces to third-party networks, is used.2.5 mdSystec ensures an annual average availability of 99.9%. This excludes downtime due to maintenance and software updates as well as times when the storage space cannot be reached via the Internet due to technical or other problems beyond the control of mdSystec (force majeure, fault of third parties, etc.).
3. Customer obligations
3.1 Should there be any disruptions when using the storage space, the customer will immediately inform mdSystec of these faults.
3.2 The customer must ensure that any scripts and/or program routines used are not affected by errors that could affect or even disrupt the services and/or services provided by mdSystec.
3.3 The customer is prohibited from leasing the storage space in question to a third party or allowing third parties to use it, unless this has been expressly agreed.
3.4 The customer is obliged to set up his own legal notice in accordance with the current legal regulations on the website, which can be accessed via the storage space, which is easily recognizable, immediately accessible and always available. This legal notice must also be easily recognizable, immediately accessible and always available on every subpage. The customer is prohibited from listing mdSystec as a service provider in the legal notice.
4. Prohibited content, prohibited actions, SPAM
4.1 The customer must ensure that the content available on the storage space does not violate applicable law, nor impair or infringe the rights of third parties of any kind. The customer is exclusively responsible for his own retrievable content. mdSystec is not obliged to carry out indiscriminate checks and does not carry them out.
4.2 In particular, the customer is prohibited from keeping the following content available: - Content that violates the copyright or intellectual property rights of third parties.- Content that violates the trademark law (e.g.: trademark law, work title right and/or naming right) of third parties.- Content that violates the personal rights of third parties.- Content that is harmful to young people or harmful to young people, in particular of an erotic nature.- Immoral and/or defamatory and/or insulting Harmful and/or harassing and/or radical content.- Harmful content, in particular viruses, Trojans, exploits, malware.
4.3 When using email services, the customer is prohibited from sending mass messages (hereinafter “SPAM”) without having obtained the prior consent of the addressees in accordance with the applicable legal provisions and recording them in a proof manner. When setting up the email address, a name must be chosen that does not violate paragraph 4.2 accordingly.
4.4 The customer must refrain from any action that constitutes a criminal offence against mdSystec or its customers, in particular computer fraud (§ 263a StGB), spying on data (§ 202a StGB), data alteration (§ 303a StGB) and computer sabotage (§ 303b StGB).
5. Shutdown
5.1 mdSystec is entitled to temporarily switch off storage space if there is concrete evidence that the use violates applicable law or affects or violates the rights of third parties, or if the use of mdSystec is unreasonable for other reasons. In particular, use that violates Section 3 and/or Section 4 is unacceptable.
5.2 mdSystec will immediately inform the customer, giving reasons, if measures are taken in accordance with Section 5.1. The customer will immediately either have the contractual state of use established or have it manufactured or prove that the current use is in accordance with the contract.
5.3 mdSystec will discontinue the measures taken in accordance with Section 5.1 as soon as the customer proves that either the contractual condition has been restored or that the existing use is in accordance with the contract.
5.4 The customer's obligation to pay a fee remains unaffected by the implementation of measures in accordance with Section 5.1.
5.5 mdSystec is entitled to switch off storage space if the customer defaults on payment of an amount equal to the remuneration for one month. mdSystec is entitled to switch off storage space as long as the customer is in default. Even during this shutdown, the customer is obliged to pay the remuneration on an ongoing basis. In such cases, it is up to the customer himself to end the delay and thus the shutdown at any time.
5.6 A shutdown in accordance with sections 5.1 and/or 5.5 does not in itself constitute a termination of the user agreement. The possibility of ordinary or extraordinary termination remains unaffected by this.
6. Additional liability limitations
6.1 When providing storage space and/or hardware and software to provide storage space, mdSystec excludes any liability without fault for initial defects in the hardware and/or software. Subsequent objections and/or claims due to obvious or concealed defects are therefore excluded.
6.2 Liability for interruption, disruption or other damage-causing events based on telecommunications services provided by mdSystec or third parties for which mdSystec is liable is limited to the amount of recourse that mdSystec can make against the respective telecommunications service provider. mdSystec is not liable for the operability of the telephone lines to the storage space covered by the contract, in the event of power outages and in the event of failures of servers that are beyond mdSystec's control.
7. Contract period, termination
7.1 The contract has a term of two years from the conclusion of the contract. The contract is automatically extended by a further year if one of the parties does not cancel in writing no later than three months before the end of the contract period. In the event of termination by the customer, the customer shall bear the burden of proof of the termination and its proper and timely receipt by mdSystec.
7.2 The contract may be terminated by ordinary or extraordinary termination. The presentation of extraordinary reasons for termination in this BVB is exemplary and not exhaustive.
7.3 In particular, there is an important reason in any case in which either — the customer does not comply with his obligation to pay the remuneration despite a reminder; — or the customer is in default of payment of the agreed remuneration for two consecutive dates or the customer has defaulted on payment of the remuneration in the amount of an amount corresponding to the remuneration for two months; - or mdSystec due to alleged violations of rights in connection with the activity is claimed for the customer by third parties; - or the customer violates essential contractual obligations, in particular Section 3 and/or Section 4 of this BVB. Depending on the seriousness of the infringement, a prior warning is required or dispensed with in individual cases.
7.4 In the event of termination in accordance with Section 7.3, mdSystec may also claim lump sum compensation in the amount of one quarter of the monthly basic lump sum remaining until the end of the regular contract period. The customer reserves the right to prove minor damage.
7.5 The termination of additional services, in particular additional domains, does not affect the overall contractual relationship.
7.6 The contractual relationship ends when the termination takes effect. mdSystec reserves the right to block access data as soon as the termination takes effect.
7.7 mdSystec is entitled to irretrievably delete all customer data at the end of three months after the termination takes effect and, if applicable, after expiry of any legal retention periods.
8th backup
mdSystec is not obliged to secure data (backup) unless this has been expressly agreed. The customer is solely responsible for their data.
9. Data protection
The customer is informed that the provision of services may result in order processing within the meaning of Art. 28 GDPR, for which the customer may have to conclude a separate written agreement with mdSystec. Unless otherwise instructed by the customer, mdSystec will execute the service orders in accordance with Art. 6 para. 1 sentence 1 lit. b) GDPR.
Special contract conditions: Domains (BVB: domains) (as of 12/2021)
1. General, scope
1.1 These special contract conditions: Domains (hereinafter: “BVB Domains” or “BVB”) apply in addition to the general terms and conditions and all contracts that MDSystec provides in the area of domain administration, in particular the technical administration of domains.
1.2 mdSystec is entitled to change this BVB with effect for the future, even within the existing contractual relationships, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
2. Subject matter of contract, contract basis
2.1 The subject of this contract are services provided by mdSystec to register the domain (s) requested by the customer and to maintain the registration (hereinafter “domain management”).
2.2 Depending on its extension (hereinafter “top-level domain” or “TLD”), the domain is assigned and managed by various — mostly national — organizations (hereinafter “awarding authorities”) on the basis of their own registration conditions. Since there are different regulations depending on the issuing authority, these registration conditions of the respective awarding authority expressly become part of the contract for each individual contract for the registration of domains under the respective TLD and apply in addition to the terms and conditions and this BVB.
2.3 Violations of these registration conditions may result in domains below the respective TLD not being registered, transferred to third parties against the owner's will, or deleted. In particular, the country-specific requirements of the respective country top-level domain (hereinafter “ccTLD”) with regard to the owner of a domain and/or a local delivery agent must be observed.
2.4 If the domain is registered for the customer, a contractual relationship is established directly between the customer and the respective registry on the basis of their registration conditions. Only the customer becomes the owner of the domain. mdSystec does not become a contractual partner of the awarding authority, but acts as a representative for the customer. mdSystec will register and manage the desired domain as part of a business agency relationship for the customer.
2.5 The customer instructs and authorizes mdSystec to make all necessary declarations to and/or receive from the relevant registry in order to register and manage the domain (s) for the customer.
3. Contracting authorities, supplementary conditions
3.1 <LINK>mdSystec provides a non-binding overview of the registration conditions of the relevant awarding authorities at. mdSystec strives to keep this overview up to date, but cannot rule out errors and changes and reserves the right to do so, in particular as the individual awarding authorities change their registration conditions from time to time without this being within the control of mdSystec.
3.2 The responsible registry for domains under the TLD “.de” is DENIC e.G. (www.denic.de). In addition to the terms and conditions and these BVB, the DENIC registration conditions apply, which DENIC registration guidelines as well as the DENIC direct price list.
3.3 For domain registrations under the TLD .com, .net, .org, (hereinafter “CNO”) or other generic top-level domains (such as .info, .biz, .eu, etc.), the customer accepts the ICANN guidelines and, where applicable, the guidelines and registration and awarding conditions of the respective awarding authority. This applies in particular to disputes over the domain due to infringement of trademark rights and/or other property rights. The customer is subject to the Uniform Domain-Name Dispute-Resolution Policy (hereinafter “UDRP”) and other relevant ICANN terms and/or conditions pointed out. The same applies to the registration of domains below other top-level domains, in particular country-specific TLDs (such as .at, .ch, co.uk, .us, etc.).
4. Domain registration, domain administration
4.1 mdSystec is not obliged to check whether the domain desired by the customer has already been assigned to a third party (hereinafter “availability check”). mdSystec does not check at any time whether the registration of the domain infringes third-party rights or violates general laws (hereinafter “safety test”). The customer alone is responsible for checking availability and safety.
4.2 If the availability check shows that the domain desired by the customer has not yet been assigned to a third party, mdSystec will initiate the necessary measures to register the domain on behalf of and in the name of the customer with the relevant issuing body (hereinafter “domain registration”). mdSystec is free to apply for the registration of the domain (s) directly with the issuing authority or via an intervening provider.
4.3 If the domain desired by the customer has already been assigned to a third party, mdSystec will inform the customer of this. mdSystec has no further obligations with regard to the domain (s) already assigned.
4.4 mdSystec does not owe the success of the domain registration. mdSystec has no influence on the awarding practices of awarding authorities. After domain registration, mdSystec is therefore unable to influence whether the requested domain is actually assigned to the customer. The customer is informed that the domain allocation is generally based on the so-called first-come, first-served principle. mdSystec is not responsible for any delays on the part of the awarding authority.
4.5 After registration of the domain (s) with the customer, mdSystec is obliged to take all reasonable measures vis-à-vis the responsible issuing authorities and, if applicable, any intervening providers to maintain the registration of the domain (s) (hereinafter “renewal”). MDsystec does not owe the success of these measures, i.e. the actual maintenance of registration.
5. Obligations of the customer
5.1 The customer is solely responsible for selecting the string to be registered as a domain. He must check availability before signing up. In particular, he must check whether the registration and/or the intended use of the domain infringes the rights of third parties or violates general laws. The customer may only order mdSystec to register or transfer domains for which, after verification, there is no evidence of an infringement of third-party rights or general laws. The verification obligation also exists for the period after registration or transfer of the domain (s).
5.2 The customer is obliged to immediately participate in all measures required with regard to registration, maintenance of registration and disposal of the domain (s) subject to the contract, in particular their transfer or the amendment of entries in the databases of the issuing agencies.
5.3 The customer is required to provide the data required for domain registration correctly and completely. The customer is obliged to correct any changes to the data provided immediately.
5.4 The customer is obliged to start a transfer for a domain only if he is either the owner of the domain or can prove the domain owner's consent to the change of provider.
6. Shutdown
6.1 mdSystec is entitled to temporarily switch off the domain if there is concrete evidence that the use and/or registration violates applicable law or affects or violates the rights of third parties, or if the use and/or registration of mdSystec is unreasonable for other reasons. In particular, use that violates paragraph 5 is unacceptable.
6.2 mdSystec will immediately inform the customer, giving reasons, if measures are taken in accordance with Section 6.1. The customer will immediately either establish or have the contractual state of use and/or registration established or prove that the current use and/or registration is in accordance with the contract.
6.3 mdSystec will discontinue the measures taken in accordance with Section 6.1 as soon as the customer proves that either the contractual condition has been restored or that the existing use and/or registration is in accordance with the contract.
6.4 The customer's obligation to pay a fee remains unaffected by the implementation of measures in accordance with Section 6.1.
6.5 mdSystec is entitled to switch off the domain if the customer defaults on payment of an amount that corresponds to the remuneration for one month. Even during this shutdown, the customer is obliged to pay compensation on an ongoing basis. In such cases, it is up to the customer himself to end the delay and thus the shutdown at any time.
6.6 A shutdown in accordance with Section 6.1 and/or Section 6.5 does not in itself constitute a termination of the user agreement. The possibility of ordinary or extraordinary termination remains unaffected by this.
7. Termination
7.1 The contract has a term of two years from the conclusion of the contract. The contract is automatically extended by a further year if one of the parties does not cancel in writing no later than three months before the end of the contract period. In the event of termination by the customer, the customer shall bear the burden of proof of the termination and its proper and timely receipt by mdSystec.
7.2 The contract may be terminated by ordinary or extraordinary termination. The presentation of extraordinary reasons for termination in this BVB is exemplary and not exhaustive.
7.3 In particular, there is an important reason in any case in which- the customer is in default of payment of the agreed remuneration for two consecutive dates or the customer has defaulted on payment of the remuneration in the amount of an amount corresponding to the remuneration for two months; - the customer violates essential contractual obligations, in particular paragraph 5 of this BVB. Depending on the seriousness of the infringement, a prior warning is required or dispensed with in individual cases; - the domain must be transferred to a third person on the basis of a final decision of an ordinary court or in accordance with the Uniform Domain Name Dispute Resolution Policy (UDRP) or the registration must be cancelled.
7.4 The contractual relationship ends when the termination takes effect. mdSystec reserves the right to block access data as soon as the termination takes effect.
7.5 Fees already due at the time the termination takes effect must be paid in full by the customer. Fees that have already been paid will not be refunded — not even on a pro rata basis.
7.6 After termination of the contract, mdSystec is entitled to release (delete) the domain or return it to the respective registry, unless the customer immediately switches to another provider.
7.7 mdSystec's obligation to participate in a provider change only exists when the customer has fully fulfilled all payment obligations under this contract.
8. Price adjustment
Insofar as the respective issuing agencies change their pricing for the registration and/or renewal of the domains below the respective TLD, mdSystec is entitled to adjust the fees to the customer accordingly as soon as the change takes effect without a separate notice period. Should such an adjustment be unreasonable for the customer, the customer has a special right of termination.
Special contract terms: Software as a Service (SaaS) (BVB: SaaS) (as of 12/2021)
1. General, scope
1.1 These special contract terms: Software as a Service (SaaS) (hereinafter: “BVB SaaS” or “BVB”) apply in addition to the general terms and conditions and all contracts that MDSystec provides in the area of software transfer.
1.2 mdSystec is entitled to change this BVB with effect for the future, even within the existing contractual relationships, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
1. Subject matter of the contract
1.1 The object of this BVB is the provision of the software agreed in the service description to use its functionalities, the technical facilitation of the use of the software and the granting or brokerage of rights to use the software as well as the provision of storage space for the data generated by the customer by using the software and/or the required to use the software (hereinafter: application data) to the agreed extent by mdSystec to the customer in return for payment of the agreed fee.
1.2 mdSystec uses both proprietary and open source software in the area of SaaS.
2. Services provided by mdSystec
2.1 From the start of the contract, mdSystec will make the software available for use on a central data processing system or several data processing systems (hereinafter: server) in the version currently approved by mdSystec.
2.2 Software, in particular open source software, does not have to be up to date with the latest version of the software. mdSystec is free to use the version of the software that meets the current requirements of the server-side system environment, in particular with regard to compatibility and security.
2.3 If and insofar as the provision of a new version or a change to the software involves a change in basic and significant functionalities of the software, mdSystec will announce this to the customer no later than six weeks before such change takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the change notification, the change becomes part of the contract. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned period and the legal consequences of their lapse if they do not exercise the right to object.
2.4 <GB>From the start of the contract, mdSystec provides storage space on the server for application data in the amount of. BVB Hosting applies to the provision of storage space. Any additional storage space required must be paid in addition.
2.4 The transfer point for the software and application data is the router output of the mdSystec data center.
2.5 For changes to mdSystec's technical system, the dispute resolution in Section 2.3 applies accordingly. mdSystec is not responsible for the quality of the required hardware and software on the part of the customer or for the telecommunications connection between the customer and the transfer point.
3. Access/availability
3.1 mdSystec provides the customer with the required access data. The customer must immediately change all passwords to passwords known only to him. The customer takes the necessary precautions to prevent the use of the software by unauthorised persons. In particular, the customer undertakes to keep the usage and access rights assigned to him secret, protect them from access by third parties and not pass them on to unauthorized users. This data must be protected by appropriate technical and organizational measures. The customer will immediately inform mdSystec if there is a suspicion that the access data and/or passwords may have become known to unauthorized persons.
3.2 mdSystec ensures an annual average availability of 99.9%. By availability, the contract partners understand the technical usability of the software and application data at the transfer point for use by the customer. This excludes downtime due to maintenance and software updates as well as times when the storage space cannot be reached via the Internet due to technical or other problems beyond the control of mdSystec (force majeure, fault of third parties, etc.).
3.3 Response and recovery times that apply in the event of unavailability and/or the presence of defects in the software are generally the result of BVB software maintenance.
4. Rights of use
4.1 The customer receives the simple right of use of the proprietary part of the software limited to the term of this contract in accordance with the following regulations. The right of use is not sublicensable and not transferable.
4.2 The open-source components are expressly excluded from the granting of rights of use. Only the respective license terms of the respective open source license apply to the open source components. It is pointed out that with regard to the open source components, a license agreement is concluded exclusively between the respective rights holders of the open source software and the customer. mdSystec has no influence on the license terms of the open source software or on the rights holders of the open source software.
4.3 There is no physical transfer of the software. The customer may only use the software for his own business activities.
4.4 The customer is not entitled to make changes to the software.
4.5 If mdSystec makes new versions, updates, upgrades or other new deliveries of the software during the term, the above rights also apply to them.
4.6 The customer is not entitled to any rights that are not expressly granted to the customer above. In particular, the customer is not entitled to use the software beyond the agreed use or to have it used by third parties or to make the software available to third parties. In particular, it is not permitted to reproduce, sell or transfer the software for a limited period of time, in particular not to rent or loan it.
4.7 mdSystec is not liable for an infringement of the rights of third parties by the customer, if and insofar as this violation results from an infringement of the rights of use granted under this contract or the respective license terms of the respective open source license.
5. Data backup
5.1 If the customer transmits data using the mdSystec software to generate application data, to back it up regularly and in accordance with the meaning of the data and to make its own backup copies so that the data and information can be reconstructed if the data and information is lost.
5.2 If and insofar as the technical option is made available to him by mutual agreement, the customer is obliged to regularly download the application data stored on the server.
5.3 Irrespective of the above regulations, mdSystec will back up the application data regularly, at least every calendar day. However, the customer is solely responsible for compliance with storage obligations of any kind, in particular retention periods under commercial and tax law.
6. Additional liability limitations
6.1 When providing the software and/or storage space and/or the hardware and software to provide storage space, mdSystec excludes any liability without fault for initial defects in the software and/or hardware. Subsequent objections and/or claims due to obvious or concealed defects are therefore excluded.
6.2 Liability for interruption, disruption or other damage-causing events based on telecommunications services provided by mdSystec or third parties for which mdSystec is liable is limited to the amount of recourse that mdSystec can make against the respective telecommunications service provider. mdSystec is not liable for the functionality of the telephone lines to the software and/or storage space covered by the contract, in the event of power outages and in the event of failures of servers that are beyond mdSystec's control.
7. Data protection
The customer is informed that the provision of services may result in order processing within the meaning of Art. 28 GDPR, for which the customer may have to conclude a separate written agreement with mdSystec. Unless otherwise instructed by the customer, mdSystec will execute the orders in accordance with Art. 6 para. 1 sentence 1 lit. b) GDPR.
8. Contract period, termination
8.1 The contract has a term of two years from the conclusion of the contract. The contract is automatically extended by a further year if one of the parties does not cancel in writing no later than three months before the end of the contract period. In the event of termination by the customer, the customer shall bear the burden of proof of the termination and its proper and timely receipt by mdSystec.
8.2 The contract may be terminated by ordinary or extraordinary termination. The presentation of extraordinary reasons for termination in this BVB is exemplary and not exhaustive.
8.3 In particular, there is an important reason in any case in which either — the customer does not comply with his obligation to pay the remuneration despite a reminder; — or the customer is in default of payment of the agreed remuneration for two consecutive dates or the customer has defaulted on payment of the remuneration in the amount of an amount corresponding to the remuneration for two months; - or mdSystec due to alleged violations of rights in connection with the activity is claimed for the customer by third parties; - or the customer violates essential contractual obligations, in particular section 3 and/or section 4 of BVB Hosting. Depending on the seriousness of the infringement, a prior warning is required or dispensed with in individual cases.
8.4 In the event of termination in accordance with Section 8.3, mdSystec may also claim lump sum compensation in the amount of one quarter of the monthly basic lump sum remaining until the end of the regular contract period. The customer reserves the right to prove minor damage.
8.5 The termination of additional services, in particular additional domains, does not affect the overall contractual relationship.
8.6 The contractual relationship ends when the termination takes effect. mdSystec reserves the right to block access data as soon as the termination takes effect.
9. Termination of contract
9.1 After termination of the contract, mdSystec will provide the customer with the application data. The transfer of application data to a third party may make mdSystec dependent on an additional fee.
9.2 The customer has no claim to continue using the proprietary part of the software after termination of the contract or to have it transferred in any other form.
9.3 mdSystec is entitled to irretrievably delete all customer data at the end of three months after termination of the contract and, if applicable, after expiry of any legal retention periods.
Special contract conditions: Managed Services (MS) (BVB: MS) (as of 12/2021)
1. General, scope
1.1 These special contract conditions: Managed Services (MS) (hereinafter: “BVB MS” or “BVB”) apply in addition to the general terms and conditions and all contracts that MDSystec provides in the area of service provision.
1.2 mdSystec is entitled to change this BVB with effect for the future, even within the existing contractual relationships, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
1. Subject matter of the contract
The object of this BVB is the assumption and management of the services agreed in the service description, which are the responsibility of the customer and which the customer outsources to mdSystec. The scope and service times are defined in the service description.
2. Services provided by mdSystec
2.1 mdSystec provides services in accordance with recognized technical rules.
2.2 mdSystec is entitled to provide the services by means of remote maintenance or remote diagnosis.
2.3 Response and recovery times, which apply in the event of unavailability and/or if there are deficiencies in terms of service performance, result from BVB software maintenance.
3. Takeover of the outsourced service
3.1 Services that have not been created, installed or configured by mdSystec are first checked, evaluated and, if necessary, brought to a working state by mdSystec if this is necessary for the audit (hereinafter: “Acceptance Review”). mdSystec may make this takeover review dependent on separate remuneration.
3.2 mdSystec has neither the obligation nor the obligation to check the outsourced service for legal compliance. Compliance with the legal, in particular data protection requirements for the service provision, as well as all components, is the sole responsibility of the customer.
3.3 In the event that MDsystec is withdrawn from access to the service due to circumstances for which the customer is responsible, mdSystec is entitled to discontinue the services until access has been restored. mdSystec will immediately notify the customer of this. Even during this period, the customer is obliged to pay compensation on an ongoing basis.
3.4 It is the customer's responsibility to change the login data after the cooperation has ended.
4. Additional warranty restrictions
4.1 The liability for material and legal defects for the services provided expires if the customer or third parties make changes to the outsourced service within their sphere of control, which MDsystec has not expressly agreed to in writing beforehand. Anything else only applies insofar as the customer proves that the fault is not attributable to the changes and that they did not make it difficult to identify and correct the error.
4.2 If services provided by mdSystec are not subject to liability for material and/or legal defects and are also not covered by the service description, the customer bears the costs, including any travel costs and expenses incurred, in accordance with the hourly and travel cost rates of mdSystec valid at the time the service is provided.
4.3 The liability and warranty limitations set out in this section do not apply if intent or gross negligence is attributable to mdSystec, nor in the event of personal injury attributable to mdSystec or malice. Liability under the Product Liability Act also remains unaffected.
5. Obligations to cooperate
5.1 The customer will support mdSystec in fulfilling the contractual services at its own expense and will arrange for everything necessary to do so.
5.2 In particular, in the event of error messages, the customer will monitor the symptoms, the software and the system and hardware environment in detail and report an error to mdSystec, providing information useful for troubleshooting, such as the number of affected users, a description of the system and hardware environment and, if applicable, any simultaneously loaded third-party software and any other documents.
5.3 In particular, the customer will support mdSystec (to the best of its ability) in finding the cause of the fault and (if necessary) instruct its employees to work with mdSystec or its agents.
5.4 In particular, the customer will grant mdSystec access, in particular remote access to the computers or servers on which and access to the rooms in which the services are to be provided and provide mdSystec with all information, in particular access data, that is required for this purpose.
6. Data protection
The customer is informed that the provision of services may result in order processing within the meaning of Art. 28 GDPR, for which the customer may have to conclude a separate written agreement with mdSystec. Unless otherwise instructed by the customer, mdSystec will execute the orders in accordance with Art. 6 para. 1 sentence 1 lit. b) GDPR.
7. Contract period, termination
7.1 The contract has a term of two years from the conclusion of the contract. The contract is automatically extended by a further year if one of the parties does not cancel in writing no later than three months before the end of the contract period. In the event of termination by the customer, the customer shall bear the burden of proof of the termination and its proper and timely receipt by mdSystec.
7.2 The contract may be terminated by ordinary or extraordinary termination. The presentation of extraordinary reasons for termination in this BVB is exemplary and not exhaustive.
7.3 In particular, there is an important reason in any case in which either — the customer does not comply with his obligation to pay the remuneration despite a reminder; — or the customer is in default of payment of the agreed remuneration for two consecutive dates or the customer has defaulted on payment of the remuneration in the amount of an amount corresponding to the remuneration for two months; - or mdSystec due to alleged violations of rights in connection with the activity is claimed for the customer by third parties; - or the customer violates essential contractual obligations, in particular section 3 and/or section 4 of BVB Hosting. Depending on the seriousness of the infringement, a prior warning is required or dispensed with in individual cases.
7.4 In the event of termination in accordance with Section 7.3, mdSystec may also claim lump sum compensation in the amount of one quarter of the monthly basic lump sum remaining until the end of the regular contract period. The customer reserves the right to prove minor damage.
7.5 The termination of additional services does not affect the overall contractual relationship.
7.6 The contractual relationship ends when the termination takes effect. mdSystec reserves the right to block access data as soon as the termination takes effect.
8. Termination of contract
8.1 After termination of the contract, mdSystec will enable the customer to take back the services. Services in connection with readmission may make mdSystec dependent on an additional fee.
8.2 mdSystec is entitled to irretrievably delete all customer data at the end of three months after termination of the contract and, if applicable, after expiry of any legal retention periods.
Special contract conditions: Hardware (BVB: Hardware) (as of 12/2021)
1. General, scope
1.1 These special contract conditions: Hardware (hereinafter: “BVB Hardware” or “BVB”) apply in addition to the general terms and conditions and all contracts that MDSystec provides in the area of selling and/or providing hardware.
1.2 mdSystec is entitled to change this BVB with effect for the future, even within the existing contractual relationships, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
2. Subject matter of the contract
2.1 The customer acquires from mdSystec the devices (hardware) specified in the service description, including the operating software specified in the service description, as well as any other software (collectively referred to as products below). The software is installed on the devices in executable form (object code). Source codes are not included.
2.2 For hardware, operating system and software, the customer receives the documentation provided and provided by the respective manufacturer (operating instruction/user manual). The documentation can also be made available online.
2.3 The customer receives the simple (non-exclusive) right to use the software installed on the hardware on a permanent basis.
3. Customer's obligations to cooperate
3.1 The customer must ensure that the hardware can be delivered correctly at the agreed delivery time.
3.2 If the set-up and commissioning by mdSystec has been agreed in the service description, the customer must grant mdSystec access to the appropriate premises.
3.3 The customer must ensure proper environmental conditions, in particular ventilation, cooling and appropriate electrical connections.
4. Additional warranty restrictions
4.1 The liability for material defects for the delivered hardware and software expires if the customer or third parties make changes to the delivered hardware and/or software that mdSystec has not expressly agreed to in writing beforehand. Anything else only applies insofar as the customer proves that the fault is not attributable to the changes and that they did not make it difficult to identify and correct the error.
4.2 The liability for material and legal defects for the delivered software expires insofar as the customer does not accept patches, bug fixes, updates or upgrades provided, unless the customer proves that the error is not attributable to this. This only applies if the bug in question would have been fixed by the uninstalled patch, bug fix, update or upgrade.
4.3 If services provided by mdSystec are not subject to liability for material and/or legal defects and are also not covered by the service description, the customer bears the costs, including any travel costs and expenses incurred, in accordance with the hourly and travel cost rates of mdSystec valid at the time the service is provided.
4.4 The liability and warranty limitations set out in this section do not apply if intent or gross negligence is attributable to mdSystec, nor in the event of personal injury attributable to mdSystec or malice. Liability under the Product Liability Act also remains unaffected.
5. Data protection
The customer is informed that the provision of services may result in order processing within the meaning of Art. 28 GDPR, for which the customer may have to conclude a separate written agreement with mdSystec. Unless otherwise instructed by the customer, mdSystec will execute the service orders in accordance with Art. 6 para. 1 sentence 1 lit. b) GDPR.
Special contract conditions: Software maintenance (BVB: software maintenance) (as of 12/2021)
1. General, scope
1.1 These special contract conditions: Software maintenance (hereinafter: “BVB software maintenance” or “BVB”) apply in addition to the general terms and conditions and all contracts that mdSystec provides in the area of software maintenance.
1.2 mdSystec is entitled to change this BVB with effect for the future, even within the existing contractual relationships, insofar as these changes become necessary as a result of a subsequent disruption of the basis of business and/or the equivalence relationship and/or a subsequent contractual gap due to changed circumstances (for example due to the invalidity of regulations due to a change in law or case law) and are reasonable for the customer. The changes become effective when mdSystec points out the changes, the customer is able to take note of the changes and does not object to them within six weeks of receipt of the notification of change. Unless an objection is made within six weeks of receipt of the notification and the use of the services and/or services continues even after the objection period has expired, the changes shall be considered to have been effectively agreed upon as soon as the deadline has expired. In the event of an objection, the contract will continue under the previous terms. However, in the event of an objection, both parties are entitled to cancel the contract with a notice period of two weeks. With each announcement of changes, mdSystec will draw the customer's attention to the aforementioned deadlines and the legal consequences of their expiry if the right to object is not exercised.
2nd subject
2.1 The subject matter is the provision of services for the software products listed in the service description (hereinafter: “software”) by mdSystec. The scope and service times are defined in the service description.
2.2 Insofar as no response times are specified in the service description, mdSystec's response time is two working days.
2.3 Insofar as no removal times are specified in the service description, mdSystec's removal time is seven working days after the above-mentioned response time has elapsed.
2.4 Insofar as no update times are specified in the service description, mdSystec's update time is ten working days after notification of the respective update by the respective manufacturer, subject to any agreed update management, which has priority. Unless expressly agreed in the service description, upgrades are excluded from this agreement.
2.5 The parties agree that Saturdays, Sundays and/or holidays are not working days.
2.6 mdSystec is entitled to provide the services by means of remote maintenance or remote diagnosis.
3. Acceptance/Requirements for Software Maintenance
3.1 Software that has not been created and/or installed by mdSystec is first checked, evaluated and, if necessary, brought to a running state by mdSystec if this is necessary for the test (hereinafter: “Takeover Review”). mdSystec may make this takeover review dependent on separate remuneration.
3.2 If the software does not comply with the current version, mdSystec may make the update/upgrade to the current version subject to a separate fee.
3.3 mdSystec has neither the obligation nor the obligation to check the software for proper licensing. The proper licensing of the software and all components is the sole responsibility of the customer.
3.4 The prerequisite for mdSystec services is that the customer operates the software to be maintained under the accesses specified in the service description and in the specified software and hardware environment. If the specifications mentioned in the service description are changed, these changes must be notified to mdSystec immediately.
3.5 In the event that mdSystec is withdrawn from access to the software to be maintained due to circumstances for which the customer is responsible, mdSystec is entitled to discontinue the services until access has been restored. mdSystec will immediately notify the customer of this. Even during this period, the customer is obliged to pay compensation on an ongoing basis.
3.6 It is the customer's responsibility to change the access data for the corresponding software after the cooperation has ended.
4. Troubleshooting
4.1 If troubleshooting has been agreed in the service description, the following fault classifications apply, unless otherwise specified in the service description.
4.2 Operationally preventing error (Category 1): An operationally preventing error exists when the use of the software is impossible or is severely restricted, for example due to malfunctions, incorrect work results or response times (and this error cannot be circumvented with reasonable organizational tools).
4.3 Operationally impeding error (Category 2): An operationally impairing error exists if the use of the software is not impossible or is severely restricted, for example due to malfunctions, incorrect work results or response times, but at the same time the restriction of use is not only insignificant and cannot be circumvented with reasonable organizational or other economically reasonable means.
4.4 Other error (category 3): Another error exists if the use of the software is not directly and/or not significantly or significantly affected, in particular in the case of unfavorably defined basic settings or missing cosmetic functions or settings.
4.5 In case of doubt, mdSystec will decide on the classification of an error at its own discretion, taking due account of the customer's interests.
4.6 The manner of troubleshooting is at mdSystec's reasonable discretion. If mdSystec offers the customer patches, bug fixes, a new software version or program components, etc. in order to avoid or eliminate errors, the customer must take over these (if and as soon as it is reasonable for him) and install them in accordance with the installation instructions, unless this activity is already to be carried out directly by mdSysTec in the service description.
4.7 An error can also be corrected in the form of instructions to the customer. The customer must follow such instructions, unless this is not reasonable for him.
4.8 mdSystec is entitled to provide an interim solution to circumvent the error (workaround) until an error is finally corrected, insofar as this is possible and reasonable for the customer with regard to the consequences of the error.
5. Additional services
The following services must be paid by the customer in addition, unless they are already included in the service description: - Services provided on site at the customer's request outside normal office hours (Monday to Friday, from 09:00 to 18:00) by mdSystec. - Software services required as a result of improper handling and/or breaches of obligations by the customer or third parties, such as failure to comply with instructions for use. Introduction and training regarding the software.- Adjustments of the software to changed and/or new systems, devices, servers or operating systems of the customer.- Elimination of malfunctions due to third-party intervention or malicious programs, in particular computer viruses, worms or trojans.- Consulting services for software that is not included in the service description.- Software services that serve to eliminate unusual faults for which mdSystec is not responsible, in particular due to disasters, natural disasters, fires, accidents, lack of care, abuse, Vandalism, overvoltage, lightning, power failure, moisture and water damage.- Adjustments to the software at the customer's request and adjustments that are required due to legal, regulatory, official or regulatory requirements.- Services that exceed the scope of the service description or additional services not specified in the service description.
6. Supplementary warranty restrictions
6.1 Only the latest version of the software made available to the customer by mdSystec is subject to warranty.
6.2 The liability for material and legal defects for the maintenance services provided and/or the delivered software expires if the customer or third parties make changes to the software to be maintained or delivered that mdSystec has not previously expressly agreed in writing. Anything else only applies insofar as the customer proves that the fault is not attributable to the changes and that they did not make it difficult to identify and correct the error.
6.3 The liability for material and legal defects for the maintenance services provided and/or the delivered software expires unless the customer does not accept patches, bug fixes, updates or upgrades provided, unless the customer proves that the error is not attributable to this. This only applies if the bug in question would have been fixed by the uninstalled patch, bug fix, update or upgrade.
6.4 If services provided by mdSystec are not subject to liability for material and/or legal defects and are also not covered by the service description, the customer bears the costs, including any travel costs and expenses incurred, in accordance with the hourly and travel cost rates of mdSystec valid at the time the service is provided.
6.5 The liability and warranty limitations set out in this section do not apply if intent or gross negligence is attributable to mdSystec, nor in the event of personal injury attributable to mdSystec or malice. Liability under the Product Liability Act also remains unaffected.
7. Contract period, termination
7.1 The contract has a term of two years from the conclusion of the contract. The contract is automatically extended by a further year if one of the parties does not cancel in writing no later than three months before the end of the contract period. In the event of termination by the customer, the customer shall bear the burden of proof of the termination and its proper and timely receipt by mdSystec.
7.2 The contract may be terminated by ordinary or extraordinary termination. The presentation of extraordinary reasons for termination in this BVB is exemplary and not exhaustive.
7.3 In particular, there is an important reason in any case in which either — the customer does not comply with his obligation to pay the remuneration despite a reminder; — or the customer is in default of payment of the agreed remuneration for two consecutive dates or the customer has defaulted on payment of the remuneration in the amount of an amount corresponding to the remuneration for two months; - or mdSystec due to alleged violations of rights in connection with the activity is claimed for the customer by third parties; - or the customer violates essential contractual obligations of this BVB. Depending on the seriousness of the infringement, a prior warning is required or dispensed with in individual cases.
7.4 The termination of additional services does not affect the overall contractual relationship.
7.5 mdSystec is entitled to irretrievably delete all customer data at the end of three months after termination of the contract and, if applicable, after expiry of any legal retention periods.
8th backup
The customer is solely responsible for their data. mdSystec is not obliged to secure data (backup) unless this has been expressly agreed.
9. Obligations to cooperate
9.1 The customer will support mdSystec in fulfilling the contractual services at its own expense and will arrange for everything necessary to do so.
9.2 In particular, in the event of error messages, the customer will monitor the symptoms, the software and the system and hardware environment in detail and report an error to mdSystec, providing information useful for troubleshooting, such as the number of affected users, a description of the system and hardware environment and, if applicable, any simultaneously loaded third-party software and any other documents.
9.3 In particular, the customer will support mdSystec (to the best of its ability) in finding the cause of the fault and (if necessary) instruct its employees to work with mdSystec or its agents.
9.4 In particular, the customer will grant mdSystec access, in particular remote access to the computers or servers on which the software to be maintained is stored and/or loaded and provide mdSystec with all information, in particular access data, that is required for this purpose.
10. Data protection
The customer is informed that the provision of services may result in order processing within the meaning of Art. 28 GDPR, for which the customer may have to conclude a separate written agreement with mdSystec. Unless otherwise instructed by the customer, mdSystec will execute the service orders in accordance with Art. 6 para. 1 sentence 1 lit. b) GDPR.