1. Area of applicability
1.1. These General Terms and Conditions of Business apply to all business relations between BMF GmbH (hereinafter BMF) and their industrial or freelance customers in the meaning of Section 14 BGB [Bürgerliches Gesetzbuch = German Civil Code]. Any General Terms and Conditions of Business of the customer will not become an integral part of the agreement, even if BMF does not explicitly object to them.
1.2. The version of the General Terms and Conditions of Business applicable upon conclusion of the agreement shall be relevant.
1.3. Individual agreements shall prevail over these General Terms and Conditions of Business.
2. Conclusion of agreement
2.1. An agreement will be concluded upon confirmation of agreement by BMF. The placement of an order / purchase order by the customer is deemed as offer to BMF for the conclusion of an agreement.
2.2. Any pre-contractual communications made by BMF, in particular offers, descriptions or cost estimates are non-binding.
2.3. Technical amendments due to technical progress or development are reserved to a reasonable extent. Information sheets, leaflets, etc. are only of informative nature and do not become an integral part of the agreement.
2.4. BMF is entitled to involve third parties for the performance of the agreement.
3.1. BMF renders services according to the relevant individual contractual agreements.
3.2. Unless otherwise agreed, BMF provides software applications, applications, databases and access software in this respect (hereinafter referred to as “software”) and grants the rights required for their contractual use in accordance with section 8 for the term of the agreement. If agreed in individual cases, BMF provides storage space on own computers to the customer or accommodates computers of the customer in computer centres. BMF then offers the customers the possibility to retrieve contents stored on the computers via Internet. In this connection, BMF does not render any services as access provider, which is why the customer may have to pay further costs. Furthermore, BMF offers further services e. g. the registration of internet domains, mail traffic, etc. The details of the relevant services are subject to the individual agreements, the descriptions of products and services and the price list of the individual products and services. Confirmed values of accessibility and performance are governed by the service agreements (Service Level Agreement) applicable to the relevant service.
3.3. To the extent to which this is reasonable for the customer, BMF reserves the right to amend or expand their service as far as this is required in order to improve the service and/or allows for and/or this is possible and/or required due to technical progress.
3.4. If services are rendered free of charge, such services can be discontinued at any time without stating reasons unless these services are explicitly specified as integral part of the agreement subject to remuneration. If a mail system for the customer is offered and the customer uses this system, BMF does not store the data for more than the statutory period in this respect.
3.5. Support services beyond the warranty will not be performed, unless an agreement about the nature and extent of the support and its costs has been fixed in writing.
3.6. Unless expressly agreed otherwise, delivery dates are no fixed date businesses.
4. Cooperation duty of the customer
4.1. The customer has the obligation to provide BMF with any assistance necessary for them to complete the agreed services, especially any information, documents and data, entirely and on time. BMF does not default if the delay is caused by the customer´s breach of obligations to provide his assistance on time and in its entirety. As a result, potential delivery dates will be delayed within reasonable dimensions.
4.2. If the customer houses own hardware with BMF (server housing), the customer itself shall be responsible for the operation and maintenance of its hardware. The customer explicitly assures to be the owner of the housed hardware. Any third-party rights in this respect, e. g. in case of leasing and financing agreements must be notified by the customer in writing upon conclusion of the agreement together with relevant documentation. The customer grants BMF a contractual lien in the housed hardware in order to secure any and all claims.
4.3. The customer shall not sublet or sublease the rented web space (web-hosting). This shall also apply if the service is rendered free of charge by BMF.
4.4. In case of ROOT servers, the customer has administrator rights. The customer guarantees to have profound knowledge in the field of server administration with ongoing further training. The safety of its servers are the sole responsibility of the customer. The installation of maintenance programs or other programs which may be provided or recommended by BMF does not exempt the customer from this responsibility. The customer is obliged to set up and administer its server in such a way that the safety, integrity and availability of the networks, other servers, software and third-party data are not compromised.
4.5. In case of a Managed Server Service (initial setup of the server/monitoring), BMF is entitled to install update service programmes, firewalls and traffic monitoring tools on the server.
4.6. When using the software and/or server, the customer will not violate any legal provisions or third-party rights and will indemnify BMF from any and all claims made against BMF by third parties which are based on an illegal use of the software and/or server. In particular pornographic contents and contents of extreme right-wing, national socialist nature and websites, the contents of which are contrary to accepted morality, are not allowed.
4.7. The customer shall take reasonable precautions (e. g. data backup) for the event of software failure or that the servers provided by BMF cannot be contacted. It is exclusively up to the customer to secure the contents saved on its website and utilised data bases on external storage media at regular intervals. The customer is aware of the fact that there can be no absolute data security for computers connected to the Internet (servers and clients) including email operation in spite of safety precautions in this respect.
5. Remuneration, offsetting
5.1. All prices are plus applicable statutory value added tax. Invoices of BMF become payable without deductions upon receipt by the customer. If the customer is in delay of payment, BMF is authorized, additional to the legal rights, to assert a general compensation for damage caused by delay of €5, — for each reminder If the agreement is not concluded on the first day of a calendar month, the rate of the first month is calculated on a pro-rata basis according to the remaining days of the month starting from the day following the provision of the software. Any conditions/periods of payment specified on the invoice of BMF shall prevail. The stipulated rate is subject to the product and/or service ordered by the customer (web hosting or server package etc.). The rate applicable upon placing the order according to the service description and price list is relevant. One-time remunerations and regular monthly, quarterly or annual fees shall be paid in advance.
5.2. Offsetting with counterclaims is only allowed if the claims are established in law or undisputed by BMF. Any warranty claims remain unaffected by this.
5.3. The assignment of claims against BMF is not allowed. Section 354a HGB [Handelsgesetzbuch = German Commercial Code] remains unaffected in this respect.
6. Term and termination
6.1. The agreement enters into force upon signature or engagement and ends upon expiry of the agreed term of agreement. Unless otherwise agreed, the agreement ends one year after the date of signature. The contractual relationship is extended by another year unless terminated in writing by one of the parties at least three months prior to the expiry of the term of the agreement.
6.2. Furthermore, the contractual relationship can be terminated in writing on important grounds by each party without compliance with any notice period. An important ground is in particular given if the contractual partner has violated essential obligations under the agreement (for example if the rights of use granted for the software provided under this agreement are exceeded) and this violation is not discontinued within a reasonable period after the other contractual partner has issued a written request.
6.3. The provisions of Section 543 BGB remain unaffected in this respect.
6.4. Furthermore, BMF is entitled to block or delete illegal and inadmissible contents and contents, data and programs which may compromise the regular operation or the safety of the servers or to prevent the operation of such contents, programs and data.
7.1. BMF guarantees that the contractually agreed quality of the software will be maintained during the term of the agreement and that the use of the software according to the agreement is not contrary to any third-party rights. BMF will remedy any defects of quality and title of the software in due time and in a way which takes the interests of all software users into account. The defect will not be remedied if the use of the software is only limited to an irrelevant extent.
7.2. BMF will provide warranty by subsequent performance, i. e. at its own option either by remedying the defects or by a defect-free new delivery.
7.3. BMF may also remedy defects by showing the customer how the effects of a defect can be avoided without adverse effects of the owed functionality. In the course of the subsequent performance, the customer shall also accept new program or data elements even if this involves a reasonable adjustment or change for the customer.
7.4. The warranty rights expire when the customer or a third party modify the contractual software, system software, hardware or any other contractual elements and additional equipment without the consent of BMF.
7.5. The customer shall inform BFM in writing about any defects of the software immediately upon detection thereof. In case of defects of quality, the customer shall indicate the time at which the defect arose and describe the particulars of the defect.
7.6. Should the subsequent performance fail, the customer may, at its election, demand a reduction of the fee or withdraw from the agreement. The customer may only claim damages under the relevant statutory conditions and only to the extent to which liability according to section 10 is established. Other claims on grounds of defects are excluded.
7.7. BMF is entitled to charge the expenditure for the remedying of the defect according to the applicable hourly rates if the examination of a defect reveals that such defect is excluded from warranty.
8. Grant of rights
8.1. In relation to the customer, any and all rights in the software let or provided to the customer shall be due exclusively to BMF.
8.2. The type and scope of the rights of use are subject to the individual agreements. Unless otherwise agreed, the customer is given the non-exclusive, non-transferable and non-sublicensable right of use of the software which is temporally limited to the term of the relevant agreement. The contractual use includes the loading, display and run of the software. Offline installations or additional linkings are basically not included in the scope of services and are not provided to the customer.
8.3. The customer is not entitled to process or enhance the software or amend it in any other way.
8.4. As far as BMF makes new versions, updates, patches or other new deliveries in view of the software, this regulations shall also apply to them.
8.5. The customer is not granted any rights which were not explicitly granted above. The customer is in particular not allowed to use the software beyond the agreed utilisation or have it used by third parties or make it accessible to third parties. Neither is it allowed to reproduce or sell the software or permit the temporary use thereof. In particular, the software may not be leased or lent.
8.6. For individual software components, direct entry for configurations can be realized with the help of so-called “hash codes”. Unless otherwise agreed, “hash-codes” will be held for a maximum of six months.”
If there is a justified reason to do so, BMF may conduct an audit at the customer’s facilities once per quarter at any time in order to check whether the agreed scope of use is exceeded. In this respect, BFM shall comply with the following rules:
9.1. The inspection shall (except for justified urgent cases) be announced in writing with two weeks’ notice.
9.2. The examination will be performed by a staff member of BMF or by an expert. The examiner shall present an original declaration according to which the examiner will only inform BMF about any excess of the scope of use and the perceptions made in this connection and that the examiner may not collect, process or use any personal data from the environment of the customer.
9.3. The examiner shall communicate the draft audit report to the customer in advance and declare that the audit report will only be presented to BMF upon expiry of one month and that this will not happen if the customer extents its licence volume by then with immediate effect. If the customer does so in due time and proves this to the examiner, the examiner only states in the audit report that no underlicensing is given at the moment.
9.4. The customer shall provide the examiner with the information required to establish the actual utilisation volume and allows the examiner to perform reasonable inspection measures.
10. Limitation of liability
10.1. On an extra-contractual and contractual basis, BMF is only liable for damages vis-à-vis the customer to the following extent:
– in full for cases of intention, gross negligence or the lack of a guaranteed quality or durability;
– in other cases only if an obligation is violated which is essential for the fulfilment of the contractual purpose (cardinal obligation) and in such cases, the liability for damages is limited to foreseeable and typical damages.
10.2. BMF’s liability for personal injury and according to the Product Liability Act remains unaffected.
10.3. There shall be no strict liability for initial defects according to Section 536a, para. 1 BGB.
10.4. In the event of data loss, any possible compensation obligation is limited to the amount of the costs incurring in connection with the recovery of data if regular backups are conducted.
11. Disclosure of trade and business secrets
11.1. The parties undertake to treat any information disclosed to them or made accessible to them as business secret, to keep them in particular confidential vis-à-vis third parties, to only use them for the agreed purposes and not to exploit them either directly or indirectly, completely or partially, commercially or by means of industrial property rights or to disclose them vis-à-vis third parties unless the disclosing party has given its prior written consent in this respect on a case-by-case basis.
11.2. The parties will disclose the information disclosed to them or made accessible to them only to those staff members who require them for the purposes of this agreement and these staff members will be obliged to maintain confidentiality in the same way as far as these staff members are not already bound to confidentiality by their employment contract.
11.3. The confidentiality obligation does not apply to information which, at the time of disclosure, was already in possession of the other party or which was disclosed by third parties without violating any confidentiality obligations or to information which is already part of the public domain. The burden of proof that such requirements are given lies with the party who claims this exception.
12. Data security, data protection
12.1. If personal data are concerned, the parties will comply with the relevant applicable data protection provisions, in particular those which are in force in Germany, and will oblige their staff members engaged in connection with this agreement and the implementation thereof to comply with the data protection provisions of Section 5, para. 2 BDSG [Bundesdatenschutzgesetz = German Federal Data Protection Act] as far as they are not already bound by obligations in this respect.
12.2. If the customer collects, processes or uses personal data, it is the customer’s responsibility to ensure that it is allowed to do so according to applicable legal provisions, in particular data protection provisions and the customer exempts BMF from any third-party claims in the event of a violation. As far as BMF processed personal data on behalf of the customer, the customer is obliged to comply with the formal and actual requirements in connection with subcontracted data processing according to Section 11 BDSG. BMF will comply with the legal requirements in connection with subcontracted data processing and the client’s instructions (e. g. compliance with deleting and blocking obligations). These instructions must be communicated in writing in due time.
12.3. BMF takes the technical and organisational safety precautions and measures according to the Annex to Section 9 BDSG. BMF protects in particular the services and systems and the customer’s/customers’ relevant stored data which can be accessed by BMF against unauthorized inspection, storage, amendment or any other unauthorised access or attack – whether by means of technical measures, viruses or any other harmful programmes or data or by means of physical access – by staff members of BMF or third parties in any way whatsoever. In this respect, the customer takes the appropriate and common measures according to the state-of-the-art, in particular virus protection and protection against similar harmful programmes and other measures for securing its equipment including burglary protection.
12.4. BMF will only collect and use customer-specific data to the extent to which this is required for the execution of the present agreement. BMF may engage third parties as subcontractors for the performance of its contractual obligations. To the extent to which personal data are processed, this will be effected according to the legal requirements in connection with subcontracted data processing. Should the customer be deemed as contracting authority in the meaning of Section 11 BDSG, BMF shall be entitled to stipulate contractual contents in the meaning of Section 11 BDSG.
12.5. As long as the personal data are in BMF’s sphere of influence, the obligations according to para. 1 to 4 shall remain in force beyond the end of the agreement. The obligations according to 12.4 shall survive for an indefinite period of time upon termination of the agreement.
12.6. To the extent to which BMF processes the data in a non-member state of the EU or shifts the processing of data to such a country, the customer will be informed in writing in advance about this. Data will be processed in order to execute this contractual relationship.
12.7. The inventory data are forwarded to authorities which are referred to for a registration of the domain. Here, the data required for the domain registration will be published (e. g. DENIC query, WHOIS query by the RIPE).
12.8. Upon request, the customer shall be informed about its personal data at any time.
12.9. The customer may object to the processing of its personal data at any time. In this case, it may be impossible to render any further services.
13. Domain allocation and rights in domains
13.1. BMF only acts as intermediary regarding the procurement and/or maintenance of internet domains. Only the customer will be entitled and obliged.
13.2. The relevant registration provisions of the competent registration authority are applicable. In particular, BMF has no influence on the availability of the domain allocation. This shall also apply to domain availability queries. Thus, no warranty is accepted in terms of availability, non-infringement, etc.
13.3. If necessary, the provided IP addresses or subdomains will be changed by BMF. Any amendment will generally be announced one week prior to the relevant change.
14. Protection of minors
Other contents according to Section 4, para. 2 Jugendmedienstaatsvertrag (JMStV; State Treaty for the Protection of Minors in the Media) which may only be made accessible to adults (adult offers) must be created by the customer in such a way that third parties cannot circumvent the age verification system by means of the PIN provided to them. BMF is entitled to block the PIN immediately if it gains knowledge of any abuse and/or dysfunction of the security system (logic area).
15. Final provisions
15.1. The contractual relationship between the customer and BMF is exclusively governed by the laws of the Federal Republic of Germany; the United Nations Convention on the International Sale of Goods (CISG) shall not apply.
15.2. The place of performance for all obligations resulting from the contractual relationship with BMF is Augsburg. If the customer is a merchant, Augsburg is agreed as place of jurisdiction for any and all litigations arising out of or in connection with this agreement. However, BMF is also entitled to sue the customer at the customer’s place of general jurisdiction. The above provisions shall also apply if the customer is not based in the Federal Republic of Germany.
15.3. Amendments and additions to this agreement shall be made in writing. This shall also apply to any amendment or cancellation of this provision. Electronic documents in text form do not comply with the written form requirement.
15.4. Should any of the above provisions be or become completely or partially invalid, this shall not affect the validity of the remaining provisions. The completely or partially invalid provision shall be replaced by a regulation coming as close as possible to the economic success of the invalid provision.