Performance and offers in regards to deliveries and services provided by G+H Systems GmbH, (“G+H”), and its contractual parterns (“Client”), are solely provided based on these terms and conditions.
General terms and conditions
1. Subject of the contract
1.1 G+H provides services exclusively based on these contractual requirements. These are regarded as accepted by signing the contract. They are also valid for all future business relations, even if they are not expressly agreed to again. Deviating confirmations or statements of the Client with reference to its own or other's business conditions, purchasing conditions or other conditions are hereby expressly rejected.
1.2 G+H has the right to change or add to these terms and conditions with due notice of at least 4 weeks. Should the Client not object to the modified conditions in writing within 4 weeks of the notification of change, but no later than on the date on which the changes are to come into force, they will be effective in accordance with the notice. Should the Client object on time and in proper form, then the Client and G+ H respectively are entitled to terminate the contract on the date on which the amended terms will become effective, however, no later than the terms mentioned in section 5.
2.1 G+H’s services are computer services, consulting services, training services, system revision services, information services and data transfer services as well as sales of software and hardware. G+H reserves the right to expand its services, to change, substitute them or to implement enhancements. Furthermore, G+H has to the right to decrease its services offer.
2.2 The services offered by G+ H are described individually online at www.guh-systems.de and can be subject to limitations, conditions and/or special features. The Client is obliged to take note of these limitations/conditions and to comply.
2.3 Should G+ H provide services free of charge, they can at any time and without notice be suspended. A claim to reduction, refund or a claim for damages does not result from this.
2.4 The provision of service as well as the notification of provision to the Client are sufficient for G+H in order to fulfill its contractual obligations. The actual use of service by the Client is not important.
2.5 In case of defective delivery or performance of software or hardware, G+H is entitled to perform a subsequent improvement or to exchange defective parts. Should a subsequent improvement or replacement delivery fail twice, the Client has the right to an annulment of the contract, i.e. to a rescission, or to a reduction, i.e. decrease of payment.
2.6 Delivered hardware and software remains the property of G+H until full payment by the Client.
3.1 The communications systems (online services) of G+H are generally available to the Client 24/7, unless the system has to be shut down due to force majeure or a technical necessity (repair). An interruption of service will be announced within due time, if possible.
3.2 The loss of service due to a cause of malfunction beyond G+H’s scope of responsibility does not warrant a compensation of payment. Furthermore, there is only a compensation of downtime in case it was caused by G+H or one of its agents or employees with intent or at least with gross negligence, and in case downtime was more than one business day. A compensation is effected even in case of slight negligence should errors arise in line with major contractual responsibilities.
4. Liability of G+H
4.1 Claims for compensation of damages against G+H and its agents, irrespective of legal grounds (e.g. non-fulfillment, impossibility of performance, warranty, default, claims arising from default at the point the contract was signed, breach of secondary duties or other tortious action) are excluded, unless intent or gross negligence exist or promised features are missing. This does not apply to slight negligence in case major contractual responsibilities were infringed upon. If a liability for slight negligence occurs, it is limited to the replacement of the foreseeable damage. The statutory liability for initial incapacity, personal injury as well as according to product liability law remains unaffected. Claims for compensation of damages resulting from a positive violation of contractual duty, claims arising from default at the point the contract was signed and from other tortious action are limited to intent and gross negligence against G+H as well as its agents and employees. The maximum liability amount per claim amounts to EUR 250,000.00.
4.2 Should G+H only be charged with slight negligence, liability for consequential damage or subsequent damage, e.g. lost profit, is excluded. This does not apply for infringement of major contractual responsibilities and for missing features that were promised.
4.3 Claims for compensation of damages for the loss of stored data in case of slight negligence are limited to the recovery effort if backup copies exist.
4.4 Liability of G+H for third parties as well as for type, volume and quality of their services is excluded. The Client is obligated to pursue legal action against said third party before turning to G+H. Should damage arise for the Client via third-party services, G+H will transfer possible claims against the third party to the Client. This applies especially for services G+H cannot influence in regards to content or execution and for which G+H only acts as agent.
4.5 Additional liability of G+H for consequences resulting from the use of the G+H system and the data transfer services by the Client, from system downtime, due to force majeure or from the termination of this contract, is excluded.
4.6 G+H is not liable for content, completeness, correctness and/or timeliness of information, data or programs, accessed by the Client via the G+H system and the data transfer services, for which G+H merely acts as an agent for use, unless expressly offered by G+H. The same applies for damage arising on the Client’s side from implementing said data or programs in its system or for the use thereof.
4.7 G+H is not directly or indirectly liable for the availability or reliability of public or other, private data transmission networks.
4.8 The length of warranty is 2 years; for used products and for contracts with companies the length of warranty is reduced to 1 year. The warranty period begins with the transfer of goods to the Client. In addition, the Client may be entitled to benefits from the manufacturers’ warranties that are included with the products. After expiration of the length of warranty, the Client has to enforce the claims for benefits from the manufacturers’ warranties with said manufacturers.
5. Obligations and liability of the client
5.1 Information of any kind, including data, programs and documentations which the Client receives via G+H’s system and the data transfer services, remain the exclusive property of G+H and/or the respective information providers. The Client is not authorized to forward such information or services to third parties, unless G+H and/or the information provider have given written consent.
5.2 The Client is responsible and liable for all costs, damage and claims of third parties arising from the use and misuse of the Client’s user data. The Client is obligated to protect its user data and password from the access of a third party, and/or to change its data immediately or effect change, should there be the assumption that an unauthorized third party could have gained knowledge of the Client’s user data; G+H is not able to detect a misuse of user data in case an authorized password was used.
5.3 The Client is obligated to use all services in a proper way and to exercise due diligence in order to prevent improper additional costs for G+H or other users.
5.4 The Client is not authorized to use G+H’s system for sending undesired emails to others (e.g. spam emails, email bombs). Furthermore, the Client is prohibited to acquire information about third parties via the G+H system in an unlawful way and/or to acquire or change copies of data or passwords.
5.5 The Client is obligated to conduct data backup on its system on a regular basis.
5.6 The Client is responsible in terms of press and publication law for all texts, files and programs that were made available by the Client. The Client is also liable for any infringement of copyright or other property rights.
5.7 G+H is entitled to terminate this contract without notice in case the Client violates its responsibilities; G+H is also entitled to terminate all services and to claim compensation for damages as well as to remove illegal data, information or programs that are on the servers of G+H.
5.8 Payment is due net within 10 days after invoicing unless otherwise agreed upon.
6. Confidentiality and data protection
6.1 Unless otherwise agreed upon in writing, information given to G+H is not regarded as confidential.
6.2 Pursuant to Section 33 Subsection 1 Federal Data Protection Act as well as Section 4 Tele Services Data Protection Act, the Client is hereby informed that G+H will process its address in machine-readable form and automatically for tasks resulting from this contract.
6.3 G+H is entitled to store and process the Client’s information electronically (accounting), to generate usage statistics as well as forward information regarding the Client to third parties (directory services), unless the Client objects to this in writing.
7. Requirement for written form
7.1 Additional written or verbal agreements in regards to the content of this contract do not exist. Additional agreements, promises or other agreements, made before or at the time an order was made in writing, have to be made in writing in order to be legally valid.
7.2 Any other changes or amendments to this contract have to be made in writing in order to be legally valid.
7.3 Verbal agreements only become valid after a confirmation in writing. The written confirmation may be effected by the Client of by G+H. In order to become legally valid, a confirmation of the participating party has to be in place for one week without written objection by G+H. Even the cancelation of this regulation has to be made in writing.
8.1 Should one term of the contract be invalid or become invalid, all other terms remain valid. Replacing the invalid term, the contractual parties are to agree upon a new term, which comes close to the desired regulation and is legally valid.
8.2 Place of fulfillment is Offenbach, Germany.
8.3 Place of jurisdiction is Offenbach, Germany.
8.4 Only German law is applicable excluding laws in regards to the international purchase of movable objects, even in case the Client’s registered office should be abroad.