Berlin, 2nd January 2014
1. The deliveries, services and offers of Protected Networks GmbH are subject exclusively to these general terms and conditions of business. Variations, changes, and supplements hereto must be in writing. Contrary, additional or terms and conditions of the client / customer that differ hereto shall only form part of the contractual agreement if Protected Networks GmbH expressly agrees to the same in writing. Inclusion of the terms and conditions of business of the client or other third parties by implication is excluded and in particular, the acceptance of deliveries or services along with the payment terms and conditions of the client shall not form part of this contractual agreement.
2. These general terms and conditions shall apply to all contractual agreements with companies as contemplated by Paragraph 14, sub-paragraph 1 of the German Civil Code (BGB).
3. These terms and conditions shall apply to all future contractual agreements with the client.
4. Liability for errors in relation to product images and descriptions is excluded.
§2 Existence and Content of Contract
1. Offers made by Protected Networks GmbH are non-binding. Contractual agreements with customers exist only following written confirmation of the same by Protected Networks GmbH, or when Protected Networks GmbH performs the contractual agreement.
2. Protected Networks GmbH may accept customer orders within one week following the sending of the relevant order.
3. Protected Networks GmbH retains the right, even following entry into a contractual agreement, to vary the promised delivery or service to the extent that any such variation is common business practice and does not concern any guarantee obligation.
4. Product and performance descriptions (particularly concerning details contained in the White Paper or on the Protected Networks GmbH website) do not constitute legal guarantees. Only written guarantees expressly described as such have validity.
5. In the event that an agreed delivery or service is not available, Protected Networks GmbH may withdraw from the obligation to perform the contract, provided that the customer is informed as to the non-availability in a timely manner and that any related performance made by the customer is compensated.
6. Cost quotations and IT solution proposals made by Protected Networks GmbH shall remain the property of the latter. The use of the same for competitive purposes is not permitted. The right is retained by us to invoice the customer for the preparation of an IT solution proposal in the prior nominated amount. In the event that no contractual agreement is entered into, the aforementioned documentation is to be returned to us.
§3 Financial Compensation
1. In relation to financial compensation, the amount agreed with the customer is determinative. In the absence of any such agreement, the price contained in the relevant price list of Protected Networks .com GmbH at the time of entry into the contractual agreement shall apply. Prices are net prices and VAT shall also be payable in addition thereto.
2. Excluded from the relevant price are installation or training costs and customer costs concerning any internet connection to be provided, along with costs related to the receipt of electronic declarations, deliveries or services by the customer. The maintenance of software provided by Protected Networks GmbH and the fee in relation thereto is governed by a separate contractual maintenance agreement.
3. Concerning leased software, a one-off fee calculated according to the relevant price list payable upon entry into the lease agreement shall become due. The lease amount shall be payable six months in advance as of the invoice date unless the relevant price list provides otherwise.
4. Monetary amounts invoiced by Protected Networks GmbH are payable within 14 days following the relevant invoice date concerning the relevant delivery or service provided, unless otherwise agreed in writing. Following expiry of this deadline, the customer is in payment arrears.
5. Protected Networks GmbH is, in the case of overdue payments entitled to minimum compensation in the form of penalty interest in the amount of eight per cent above the base interest rate. The right of Protected Networks GmbH, to seek additional damages or higher interest pursuant to any other legal entitlement, remains unaffected.
6. The customer is only entitled to set-off any undisputed or legally determined amounts against Protected Networks GmbH. The customer can only claim a right of retention against Protected Networks GmbH that may be contained in the relevant contractual agreement.
1. Protected Networks GmbH provides software at its discretion:
a. by providing a data storage device upon which the relevant software is stored
b. by making the software available for downloading and advising the customer as to the same
c. by electronic transfer via E-Mail.
2. In the case of provision of a data storage device, the risk of incidental loss or damage shall pass to the customer at the time that the data storage device has departed the relevant storage location for transportation to the customer.
3. In the absence of any written agreement to the contrary, details provided by Protected Networks GmbH concerning to delivery or performance times are non-binding.
4. In the event that Protected Networks GmbH, due to industrial disputes, governmental intervention, non-delivery by suppliers, staff illness, acts of God or other happenings and through no fault of its own is prevented from fulfilling the agreed delivery or service, the time period for the delivery or performance of services shall be extended for an appropriate period of time following the end of the cause of the problem. This shall apply when Protected Networks GmbH is awaiting information or a contribution from the customer.
§5 Usage Rights
1. All rights in relation to the software provided to or configured for the customer are vested in Protected Networks GmbH excluding the exceptions contained herein.
2. Unless otherwise agreed, Protected Networks GmbH grants the customer the non-exclusive right to use the software for its own purposes, as permitted by a separate License Agreement to be entered into between the parties.
3. The usage rights pursuant to paragraph 2 of this clause commence at the time of full payment of the program price. Independent of payment, Protected Networks GmbH obliges itself not to commence any interlocutory proceedings against a contractually permitted usage within four weeks following provision of the program.
§6 Duties and Responsibilities of the Customer
1. The customer shall provide the working environment necessary for the contractually agreed usage of the software provided. The customer shall provide its own suitable operating system and internet connection at its own cost, according to the given requirements of the Protected Networks GmbH hardware.
2. The customer shall undertake appropriate measures (e.g. data security) covering the situation where the software fails or where the Protected Networks server is not available.
3. Prior to usage of the software, the customer shall ensure its relevant business partners also meet the usage requirements as detailed by Protected Networks GmbH (especially those in the White Paper) and in the product and performance description.
4. The customer shall, in the event of an illegal or other usage of the software that infringes third party rights hold Protected Networks GmbH harmless against claims made against Protected Networks GmbH that are based upon software usage. Protected Networks GmbH is permitted, in the case of an infringement by the customer of this sub-clause by the customer, to deny the customer access to the Protected Networks server. Additional rights of Protected Networks GmbH shall remain unaffected.
§7 Inspection and Complaint Obligation
The customer shall immediately inspect the commercial software provided subject to Paragraph 377 HGB (German Commercial Code) and report any apparent deficiencies to Protected Networks GmbH following delivery and any hidden deficiencies following discovery in writing. The customer shall describe the relevant deficiency to the extent reasonably possible.
§8 Material and Legal Deficiencies (Purchase)
1. Protected Networks GmbH guarantees that the software sold is free from material defects, that the customer is able to use the software as contractually agreed and that no third party rights are violated. Material defects that are minor and do not unreasonably limit use of the software, do not form the basis of any liability.
2. Protected Networks GmbH meets its guarantee obligations by subsequent correction and at its own discretion, either by curing the material defect or by supplying a new product that is not defective.
3. Protected Networks GmbH is also able to correct material defects if Protected Networks GmbH shows the customer ways to overcome the material defect without negatively impacting upon the relevant functionality of the product. The customer is obliged to accept the new program or data provided when doing so results in an acceptable degree of investment in modification or adjustment by the customer.
4. In cases of non-correction of material defects the customer is entitled to demand a reduction in the price payable, or to withdraw from the contractual agreement. Damages may only be claimed by the customer to the extent that these are permitted by Clause 10 hereto. Other entitlements due to material defects are excluded.
5. Should the customer have changed the software itself, then Protected Networks GmbH is only liable for material defects that are independent of the relevant changes.
1. Protected Networks GmbH is liable for damage – irrespective of the legal foundation – only, when Protected Networks GmbH caused this damage deliberately or by way of gross negligence, or when Protected Networks GmbH negligently committed a material breach of the agreement. In cases of a contractual breach, Protected Networks GmbH shall only be liable for damage common to such contracts that was reasonably foreseeable at the time that the contract was entered into.
2. To the extent that Protected Networks GmbH is liable for negligent breaches of the contractual agreement pursuant to the above clause, the liability shall be limited in each case to 500.000,00 EUR for material damage and 250.000,00 EUR for asset damage.
3. The abovementioned exclusions and limitations of liability shall not apply in cases of no–fault liability, in particular pursuant to the product liability law, personal injury and health damage or loss of life.
4. There is no liability for damage to products delivered or third party components caused by non-compliance with the relevant hardware or software instructions or technical requirements, or inadequate precautions taken by the customer regarding data loss protection.
5. In relation to leased software, the no-fault liability with respect to initial defects of Protected Networks GmbH pursuant to Paragraph 536 BGB is excluded.
6. The customer shall hold Protected Networks GmbH free from any third party liability caused by a usage of the software by the customer in a way that was not conform with the contractual agreement.
§10 Expiry of Customer Claims
1. Guarantee and damage entitlements expire one year following delivery of the software.
2. The relevant legal time periods concerning expiry of claims apply in relation to deliberate or gross negligent conduct by Protected Networks GmbH, to breaches of the guarantee by Protected Networks GmbH, in case of malice and claims concerning loss of life, physical injury, or health damage, or those arising from the product liability laws.
§11 Data Protection
1. Protected Networks GmbH and the customer agree to comply with all applicable data protection laws. The parties hereto shall administer all personal date according to Paragraph 5 Sentence 2 BDSG and agree to do so in writing. In relation to the collection, processing or use of personal data, all necessary technical and organizational measures to protect the data must be implemented.
2. To the extent that Protected Networks GmbH processes or uses personal data as part of a customer order contract, this shall be at the request of the customer as contemplated by Paragraph 11 BDSG. Protected Networks GmbH will therefore only use or edit personal data to complete its contractual obligations in accordance with the instructions of the customer. If Protected Networks GmbH is of the opinion that an instruction of the customer infringes the data protection laws, it shall advise the customer as to the same.
§12 Inclusion of Third Parties
Protected Networks GmbH may obtain the assistance of third parties to meet its contractual obligations (completion assistance). Protected Networks GmbH is liable for obligation breaches according to Paragraph 278 BGB in the context of the various limitations and exclusions described elsewhere in this agreement.
1. Place of jurisdiction regarding all disputes concerning a contractual agreement entered into between Protected Networks GmbH and a customer is Berlin, Germany, when the customer is a private person, a legal entity, a corporate governmental organization or entity, or has no domestic German service address.
2. The laws of the Federal Republic of Germany shall exclusively apply to the exclusion of the UN- Commercial Charter.
Protected Networks GmbH, Berlin