1.1 The contracting parties are DKSR GmbH, Am Karlsbad 16, 10785 Berlin (hereafter referred to as “DKSR”) and the Customer. DKSR renders services on the basis of the following General Terms and Conditions (“GTC”).
1.2 DKSR is entitled to amend or supplement the General Terms and Conditions at any time with reasonable notice. The Customer shall be notified of the amendment in a reasonable manner. The amendment shall be approved if the customer does not object in writing within a period of four weeks after notification of the amendment. The customer shall be explicitly informed of this consequence when the amendment is announced. If the customer does not object, the changes shall become effective in accordance with the announcement. However, if the customer objects in due time, DKSR shall be entitled to terminate the contract as of the date on which the amended terms are to take effect.
1.3 The type and scope of the services to be performed (time frame, schedule and, if required, an agreed specification) as well as the remuneration for DKSR shall be determined by separate agreement or offer.
1.4 The offers and the descriptions of DKSR’s services contained therein are in principle subject to change without notice. DKSR shall be bound by any offers specially prepared in accordance with the information contained in the offer. A contract shall be concluded only upon countersignature of the offer or final signature of the separate agreement.
1.5 The customer shall provide DKSR with all accesses and connections required for the agreed services to an appropriate extent. Any ambiguities in the provision or the delayed provision of information or accesses may result in a delay or additional expense, which shall be borne by the customer.
1.6 Furthermore, the customer shall inform the DKSR in a timely manner and without special request of events and circumstances that lie within the customer’s sphere of responsibility and that may be of recognizable importance for the execution of the order.
1.7 The documents belonging to an offer of the DKSR (technical data, drawings, drafts) do not constitute warranties of characteristics unless they are explicitly designated as such in writing.
1.8 For the purposes of these General Terms and Conditions, working days are the weekdays Monday to Friday excluding public holidays.
2.1 If the agreed services are recurring or ongoing services, the minimum contract term shall be 12 months unless otherwise agreed.
2.2 The term and termination options for one-off services shall be set out in the corresponding offer.
2.3 The contractual relationship for recurring services may be terminated in writing at the end of this term with one month’s notice. If no notice of termination is given, the contractual relationship shall be automatically extended by another 12 months.
2.4 The right of termination for good cause shall not be affected hereby. Either party may terminate the contractual agreement for good cause.
2.5 Terminations must be made in writing, unless the contractual agreement was only made in text form (via e-mail). Then the termination can also be made in text form.
2.6 If the Customer does not request the transfer or deletion of a cloud instance at the time of termination, DKSR shall be entitled to terminate the instance after a corresponding notice and a reasonable period of time. The customer is aware that even after terminating the contract with DKSR, remuneration obligations towards the respective cloud service provider may remain or may arise anew due to an automatic term extension. DKSR may reclaim such costs from the Customer.
3.1 All prices are exclusive of the respective statutory value added tax, even if the value added tax has not been expressly stated in the individual case.
3.2 Insofar as the parties have not agreed on a fixed remuneration or insofar as the services are outside the agreed scope of services, the remuneration of the DKSR shall be calculated on the basis of time and effort. In this respect, the hourly or personal daily rates applicable at the time of performance of the services shall apply.
3.3 DKSR is entitled to demand advance payments and/or payments on account for project progress. The amount of such payments shall be determined by the offer and the schedule or any other individual contractual arrangement between the parties.
3.4 In addition to the agreed remuneration, DKSR shall be entitled to demand reimbursement of expenses incurred (e.g. briefings and training, travel expenses and purchase costs for texts, images, etc.) upon presentation of suitable evidence, provided that such expenses have been released by the Customer in advance or have not been otherwise specified in the offer.
3.5 Unless otherwise agreed in individual cases, services shall be rendered on invoice, which shall be payable within 14 days without deduction.
3.6 Default in payment shall occur upon exceeding the payment deadlines resulting from 3.7 of these GTC or stated on the invoices.
3.7 In case of default, DKSR is entitled to charge interest in the amount of 8% above the respective base interest rate, subject to further actual damage caused by default.
3.8 In the event that the Customer is in default of payment of a not insignificant part of two invoices in the case of ongoing services, or in the event that the Customer is in default of payment of a sum that constitutes one invoice, DKSR shall be entitled to refuse to provide the service after prior notice. In this case, the customer remains obligated to pay the invoices. DKSR also reserves the right to terminate the contractual relationship in such cases without notice.
3.9 The same shall apply if insolvency proceedings have been instituted against the Customer’s assets or if such proceedings have been rejected for lack of assets.
3.10 Objections to an invoice shall be raised by the Customer in writing to DKSR within eight weeks after receipt of the invoice.
3.11 DKSR may change the prices in the event of a change in the statutory VAT rate without giving the Customer a separate right to terminate the contract.
3.12 If price increases are necessary for other reasons, for example due to regulatory requirements of the Federal Network Agency or price increases of upstream suppliers, the customer shall be notified thereof in writing at least six weeks before the change. The Customer shall have a special right of termination, of which he shall be made aware in the notice of change. If the Customer does not give notice of termination by the time of the change, the new prices shall become part of the contract.
3.13 The Customer shall bear the costs of blocking and any subsequent unblocking if blocking was necessary due to his conduct.
4.1 The Customer shall provide all necessary data, such as its contact data and e-mail address, completely and truthfully and shall notify DKSR of any changes in a timely manner.
4.2 DKSR will send declarations regarding this contractual relationship to the Customer’s e-mail address. The Customer is obliged to regularly check the e-mail address provided.
4.3 The Customer is obligated to report defects that occur during contractual use to DKSR without undue delay in a comprehensible form with information suitable for defect rectification. If requested by the supplier, this notification will be made in writing. The Customer shall support the DKSR in the rectification of defects within the scope of what is reasonable. In the assessment of defects, the defect classes specified under §5 of these GTC shall apply.
4.4 The use of the services provided by DKSR according to the contract is exclusively permitted to the contractual partner. Third parties may not be granted access against payment or free of charge, this includes access via unsecured networks. Personal access data may not be disclosed to third parties and must be protected against access by third parties. If the customer suspects that the access data is being used by a third party without authorization, the Customer must inform DKSR immediately. The Customer shall be obligated to pay any fees caused by authorized or unauthorized access by a third party, unless the customer proves that the use is not attributable to it.
4.5 In the event that data of the Customer is stored on the servers of DKSR or its service providers, DKSR shall ensure proper data backup by means of regular back-ups. Claims for damages for the loss of stored data are limited in amount to the damages foreseeable at the time of the conclusion of the contract and typical for this type of contract. In the event of a loss of data, the Customer undertakes to assist DKSR in restoring the data by transferring the data back to the servers of DKSR or its service providers free of charge, if and to the extent the data is still available to the Customer.
4.6 The Customer is prohibited from sending any form of spam, scam or other harmful or unlawful e-mails (e.g. no consent of the recipient to send such e-mails). In such a case DKSR is entitled to block the server immediately.
4.7 If a server is corrupted in such a way that it becomes part of a botnet, DKSR is entitled to block the server immediately.
4.8 The Customer undertakes not to offer or distribute copyrighted content without authorization. Corresponding links are also prohibited. In the event of a violation, DKSR shall also be entitled to immediately block the server or the homepage and shall have the right to terminate the contract immediately.
4.9 The Customer undertakes to keep its programs and services stored within the scope of the hosting always up to date in terms of IT security. This includes in particular software updates or migrations to newer versions of programming languages/scripts (e.g. .php). If the Customer fails to make such necessary changes, DKSR shall be entitled to deactivate the relevant services, provided that this is necessary to maintain the security of the entire system, including the servers of other customers of DKSR and the network availability. This may become necessary, for example, if the pages and services are no longer compatible with the current security standard after an update or migration.
4.10 DKSR shall notify the Customer without undue delay of any blocking of a server or deactivation of a website or service by DKSR.
4.11 If the Customer is provided by DKSR with storage space for homepages (hosting) and/or a virtual machine within the scope of the homing offer and/or a full-fledged server (hardware), the Customer shall ensure that the corresponding use by the Customer does not result in an excessive load on the servers. In case of a violation, DKSR is entitled to take appropriate countermeasures at its own discretion after having notified the Customer accordingly.
4.12 If the Customer uses the hosting service of DKSR, the Customer is obliged to comply with the TMG and in particular to make the origin of the content on the homepage recognizable, e.g. by means of an imprint. The Customer shall inform itself about the requirements of an imprint.
4.13 If DKSR has bindingly agreed in writing to deadlines and dates and is unable to meet such deadlines and dates, or if DKSR is more than 14 days in default with its performance, the Customer shall be entitled to claim compensation for delay from that point in time in the amount of 0.5% for each completed week, but in no event more than a total of 5% of the order value of the deliveries and services affected by the delay. Any further claims for damages of the Customer shall only exist if the delay has occurred due to at least gross negligence of DKSR.
The following defect classes are agreed upon for the categorization of defects:
5.1 Defect Class A – Defect preventing operation: A defect preventing operation exists if the use of a contractual service is impossible or severely restricted. Excluded from this are defects caused by third party delivery components, e.g. hardware, software, network.
5.2 Defect class B – Defect hindering operation: A defect hindering operation exists if the use of a contractual service is considerably restricted. A defect hindering operation also exists if the sum of all minor defects according to lit. c. leads to a not insignificant restriction of the use of a contractual service. Excluded from this are defects caused by third party delivery components, e.g. hardware, software, network.
5.3 Defect class C – minor defect: A minor defect shall be deemed to exist if the use of a contractual service is possible with only insignificant restrictions. Excluded from this are defects caused by third party delivery components, e.g. hardware, software, network.
6.1 The Contractor shall be obliged to remedy defects in the works and purchased items within a reasonable period for the Principal. The elimination of defects shall be carried out in coordination with the Principal.
6.2 If DKSR does not succeed in remedying the defects in a work or an item of purchase, the Principal shall be entitled, after having set a reasonable deadline to the Customer and such deadline has expired fruitlessly, to remedy the defect himself or to have it remedied by third parties (substitute performance). The costs for this shall be borne by DKSR.
6.3 In case of defects of Class A and B according to clauses 5.2 and 5.3, the Customer may instead demand a reduction of the purchase price or optionally withdraw from the affected service certificate. In the case of Class C defects, the Customer may demand a reduction instead of a replacement; the right to withdraw from the contract due to Class C defects is excluded.
6.4 DKSR shall not be responsible for disruptions of performance due to force majeure, including strikes, and due to events at DKSR or its vicarious agents that make performance substantially more difficult or impossible for DKSR. This shall apply accordingly to disruptions of telecommunication systems of third parties used by DKSR for the performance of its obligations. The Customer shall be entitled to reduce the monthly fee accordingly if a disruption lasts longer than 48 hours at a stretch.
6.5 If DKSR has taken action on the basis of a notice of a defect without the Customer proving evidence of a defect, DKSR may demand compensation for its expenses . DKSR may use log files to prove that there is no defect on the part of DKSR.
6.6 Claims for damages based on culpa in contrahendo, positive breach of contract and tort against DKSR and its agents are excluded, except in case of intent or gross negligence or in case of absence of warranted characteristics. The limitation shall not apply in case of slight negligence if material contractual obligations have been breached. DKSR shall be liable in case of slight negligence even if the damage is covered by its business liability insurance. DKSR undertakes to maintain the insurance coverage existing at the time of conclusion of the contract. The liability for personal injury as well as the Product Liability Act shall remain unaffected.
6.7 Liability is also excluded if the defect has occurred due to hardware or software used by the Customer or if the Customer uses outdated drivers or if the PC system is not compatible with the performance of DKSR.
6.8 Should the Telecommunications Act (TKG) apply, the liability rule of § 44a TKG remains unaffected in any case.
6.9 DKSR and its vicarious agents shall be indemnified against any and all claims of third parties based on an unlawful use of the connection provided. If the Customer recognizes or should have recognized that such a violation is imminent, he shall immediately notify DKSR thereof.
6.10 Separate agreements with the Customer or offers may further specify these provisions or result in a different agreement.
7.1 Confidential information shall be information which is disclosed to a party or its affiliates pursuant to §§ 15 et seq. of the German Stock Corporation Act (AktG) in the course of the performance of the contract. AktG is made available or has already been made available to a party or its affiliated companies in the context of the performance of the contract. Confidential information may be communicated in writing, orally or in any other tangible or intangible form. Any work results produced on the basis of the confidential information shall also be deemed to be confidential information. Likewise, the existence and contents of this agreement shall be deemed confidential information.
7.2 Information shall not be deemed to be, or shall cease to be, confidential information if the other party can prove that it was
- already publicly known or generally accessible at the time of transmission; or
- becomes publicly known or generally accessible after the transmission without breach of a confidentiality agreement, or
- were disclosed to the Contractor by third parties who were not bound by a confidentiality agreement.
7.3 The parties agree not to make confidential information available to third parties. However, the parties shall be entitled to make confidential information available to their employees within the scope of the performance of the contract. DKSR shall also be entitled to disclose confidential information to subcontractors whose use the Customer has expressly agreed to, if and to the extent that such confidential information is required for the performance of the respective services by the subcontractor and provided that the subcontractor has previously undertaken to maintain confidentiality vis-à-vis the DKSR to at least the same extent as the DKSR has undertaken to maintain confidentiality vis-à-vis the Customer. The confidential information may also be made available to such external consultants who are subject by law to a professional duty of confidentiality or who have assumed an obligation comparable to this confidentiality agreement. The obligation to maintain confidentiality shall not apply to courts and authorities insofar as they demand confidential information by means of a binding order. In the event of such a request for information, the customer shall be notified without delay.
7.4 The Customer is obligated to use confidential information of DKSR exclusively for the purpose of fulfilling the contract.
7.5 Any publication about the cooperation of the parties, be it in words or pictures, (e.g. in trade journals or advertising brochures) shall be notified to the other party at least 14 days in advance. Consent shall not be unreasonably withheld by the other party. After expiry of the deadline, the publication shall be deemed to have been approved.
7.6 Photographs and film recordings shall only be permitted with the express prior consent of the other party. Photographs and film recordings of the cooperation shall be submitted to the other party and released by the latter in each individual case. The other party shall have the right to have copies made thereof for its use.
7.7 Short-term interview requests that have an overriding relevance are excluded from this regulation. In this case, the partner will be informed immediately.
8.1 The Customer shall receive the non-exclusive right of use to all software components provided under the German Free Software License. The currently valid license conditions of the German Free Software License can be viewed online. [1]
8.2 Further developments to the platform code can only be carried out by DKSR. Otherwise, the Customer agrees to take over the full risk & liability for this.
8.3 DKSR shall receive a simple right of use to the raw data provided by the Customer within the scope of the use of the open source DKSR platform and, if applicable, further DKSR products for the purpose of fulfilling the operation.
8.4 Further rights of use or rights of use resulting, for example, from the use of licensed software are specified in the respective offers.
[1] https://www.hbz-nrw.de/produkte/open-access/lizenzen/dfsl/deutsche-freie-software-lizenz
9.1 DKSR shall comply with the statutory provisions on data protection when handling personal data.
9.2 DKSR stores and processes the personal data received or to be collected in the course of this business relationship exclusively for the purpose of executing the order pursuant to Article 6(1) (b) DSGVO.
9.3 The provision of services is based on the current data protection laws. The Customer itself is responsible for the processing of data in its area under data protection law.
9.4 If access by DKSR to personal data in customer systems cannot be excluded, DKSR shall act exclusively as a commissioned data processor. It shall process and use such data only for the performance of the contract. DKSR shall comply with the Customer’s instructions for the handling of such data. The Customer shall bear any adverse consequences of such instructions for the performance of the contract. Details for the handling of personal data shall be agreed upon by the contracting parties in writing to the extent necessary in accordance with the relevant legal standards.
9.5 DKSR is entitled to make working copies of the files and documents provided by the Customer. All data, documents and other objects of whatever kind provided to DKSR shall be returned to the customer upon termination of the contractual relationship. The same applies to the work results provided by DKSR within the scope of this contractual relationship. A right of retention – for whatever reason – is excluded.
9.6 In case of questions regarding our data protection regulations, our data protection officer can be reached at datenschutz@dksr.city.
10.1 The Contractor warrants that he and his vicarious agents or representatives shall not, with regard to invitations to tender/awards of contracts in connection with this contract and/or service certificates, participate or have participated in any unlawful anti-competitive practices, in particular agreements, votes or recommendations on the submission or non-submission of bids, prices to be charged, profit mark-ups, payment, delivery and other conditions, profit sharing or other levies, default compensation or compensation payment.
10.2 In the event of a breach of the above obligations by the Contractor, the Principal shall be entitled – without prejudice to further rights – to terminate this agreement and/or individual or all performance certificates without notice.
10.3 Further rights of the Principal shall remain unaffected.
11.1 The Customer may only offset a counterclaim if it is undisputed and has been legally established.
11.2 The Customer may not assert a right of retention based on another contractual relationship with DKSR.
11.3 Subsidiary agreements, assurances, amendments and supplements to the contractual agreements require the consent of the legal representatives of the parties. For documentation purposes, the contracting parties agree that amendments shall be recorded at least in text form.
11.4 Should provisions of these GTC and/or the separate agreement be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace an invalid provision with a valid agreement whose economic success comes as close as possible to that of the invalid provision. The same shall apply accordingly to any gaps or additions necessitated by technical developments.
11.5 This contract is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
11.6 The exclusive place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of DKSR. However, DKSR shall be entitled to bring an action at the Customer’s principal place of business. If the Customer is a consumer, the statutory place of jurisdiction shall apply.