Tos

GENERAL TERMS AND CONDITIONS IN THE COMMERCIAL ENVIRONMENT

by Michael Schmitt Ltd., Bank House, Judes Road, Egham TW20 0DF, UK

– hereinafter referred to as “Michael Schmitt Ltd.

1 Con­clu­sion of con­tract

1.1 For con­tracts with Michael Schmitt Ltd. only these terms and con­di­tions apply. Devi­at­ing reg­u­la­tions in the gen­er­al terms and con­di­tions of the cus­tomer are there­fore express­ly con­tra­dict­ed.

1.2 Offers made by Michael Schmitt Ltd. in brochures, adver­tise­ments etc. are – also with regard to prices – sub­ject to change and non-bind­ing, unless a bind­ing assur­ance is express­ly giv­en.

1.3 Michael Schmitt Ltd. care­ful­ly research­es and cal­cu­lates for her work. This some­times takes some time. The cus­tomer is there­fore bound to his order for 14 days. If Michael Schmitt Ltd. does not reject the accep­tance with­in sev­en days after receipt of the order, the con­fir­ma­tion is con­sid­ered to be giv­en.

1.4 Oral col­lat­er­al agree­ments are invalid. Changes to the con­di­tions must be made in writ­ing.

1.5 Com­pli­ance with a per­for­mance dead­line depends on time­ly deliv­ery to us.

2 Scope of ser­vices

2.1 Michael Schmitt Ltd. offers the fol­low­ing ser­vices:

– Cre­ation, adap­ta­tion and main­te­nance of web­site

– Set­up and main­te­nance of con­tent man­age­ment sys­tems (CMS)

– Web­site Opti­miza­tion (SEO)

– Host­ing

– oth­er graph­ic ser­vices

– Con­sult­ing in usabil­i­ty and acces­si­bil­i­ty

– Train­ings

2.2 Michael Schmitt Ltd. pro­vides its ser­vices accord­ing to the wish­es and spec­i­fi­ca­tions of the cus­tomer. Instal­la­tion, con­fig­u­ra­tion, instruc­tion and train­ing are only part of their ser­vice oblig­a­tions if this has been agreed. Michael Schmitt Ltd. only has to con­sid­er change and exten­sion requests if they are nec­es­sary for tech­ni­cal rea­sons in order to achieve the pur­pose of the con­tract.

2.3 Inso­far as Michael Schmitt Ltd. pro­vides addi­tion­al ser­vices and per­for­mances out­side the con­trac­tu­al agree­ment free of charge, these can be dis­con­tin­ued at any time. A claim for reduc­tion or com­pen­sa­tion by the cus­tomer or a right of ter­mi­na­tion does not result from this.

2.4 In the event of a sig­nif­i­cant change in the con­trac­tu­al oblig­a­tions of Michael Schmitt Ltd. for the pur­pose of adapt­ing them to the inter­ests of the cus­tomer, Michael Schmitt Ltd. may charge the cus­tomer for the addi­tion­al work required. This also applies to an exten­sive exam­i­na­tion of whether and under what con­di­tions the change or exten­sion is fea­si­ble, pro­vid­ed Michael Schmitt Ltd. has point­ed this out in writ­ing.

2.5 Michael Schmitt Ltd. is enti­tled to make par­tial deliv­er­ies as long as these are not unrea­son­able for the cus­tomer.

2.6 Michael Schmitt Ltd. is enti­tled to change, reduce or sup­ple­ment the range of ser­vices result­ing from the con­tract as well as to can­cel access to indi­vid­ual ser­vices if and to the extent that the ful­fil­ment of the pur­pose of the con­tract con­clud­ed with the cus­tomer is not or not sig­nif­i­cant­ly impaired. The cus­tomers are to be informed about this in good time.

2.7 The cus­tomer is advised that the oper­a­tion of a web­site is accom­pa­nied by legal oblig­a­tions, the non-obser­vance of which may result in civ­il and crim­i­nal con­se­quences. These are in par­tic­u­lar:

– the imprint oblig­a­tion (provider iden­ti­fi­ca­tion) accord­ing to § 5 TMG
– Duty to inform accord­ing to § 312c BGB (dis­tance con­tracts)

– Infor­ma­tion duties accord­ing to § 312e BGB (elec­tron­ic busi­ness trans­ac­tions)

– Oblig­a­tions to check for links

– Oblig­a­tions to check the con­tents of forum dis­cus­sions, blogs and chat rooms

– Oblig­a­tion to observe media law reg­u­la­tions

– Oblig­a­tion to respect the copy­right and trade­mark rights of third par­ties (see also rights of use)

2.8 The cus­tomer alone is respon­si­ble for com­pli­ance with these oblig­a­tions. Should Michael Schmitt Ltd. suf­fer dam­ages because the cus­tomer vio­lates the above men­tioned oblig­a­tions, Michael Schmitt Ltd. is enti­tled to claim dam­ages.

2.9 Michael Schmitt Ltd. offers its ser­vices 24 hours a day, 7 days a week. Nec­es­sary ser­vice inter­rup­tions for pre­ven­tive main­te­nance work are announced as ear­ly as pos­si­ble. Michael Schmitt Ltd. will elim­i­nate mal­func­tions of the tech­ni­cal equip­ment as quick­ly as pos­si­ble with­in the scope of the exist­ing tech­ni­cal and oper­a­tional pos­si­bil­i­ties.

3 Prices and pay­ment

3.1 The list prices at the time of deliv­ery or ship­ment shall apply. Fixed prices shall only apply if the price agree­ment in an indi­vid­ual case, e.g. on the basis of an offer, con­tains nei­ther the pos­si­bil­i­ty of a price increase nor a time lim­it for the fixed price agree­ment.

3.2 The prices do not include the legal sales tax, as this is not charged (gross-net invoic­es). In accor­dance with para­graphs 1 and 3 of the Eng­lish Val­ue Added Tax Act 1994, no val­ue added tax is includ­ed in the invoice amount shown. Ship­ping costs, instal­la­tion, train­ing and oth­er addi­tion­al ser­vices are not includ­ed in the price, unless oth­er­wise agreed.

3.3 Addi­tion­al ser­vices that are not includ­ed in the price list or the offer shall be remu­ner­at­ed sep­a­rate­ly. This applies in par­tic­u­lar to addi­tion­al expen­di­ture as a result of

– the pre­sen­ta­tion of data in non-digi­tised form

– of nec­es­sary and rea­son­able use of ser­vices of third par­ties

– of expens­es for license man­age­ment

– com­mis­sioned test­ing, research and legal review ser­vices

– ser­vices pro­vid­ed out­side busi­ness hours

3.4 If the cus­tomer is in default of pay­ment, he must reck­on with default inter­est of 8% above the base rate. The inter­est on arrears shall accrue even with­out a reminder if the pay­ment peri­od is exceed­ed.

3.5 The cus­tomer must expect that Michael Schmitt Ltd. will ini­tial­ly cred­it pay­ments against old­er debts. If costs of legal action such as reminder costs have already been incurred, Michael Schmitt Ltd. can cred­it pay­ments made by the cus­tomer first against these costs, then against the inter­est and final­ly against the main ser­vice.

3.6 Michael Schmitt Ltd. is enti­tled to demand an advance pay­ment of half of the total order val­ue for web design or pro­gram­ming ser­vices.

3.7 The cus­tomer can only off­set against the claims of Michael Schmitt Ltd. with undis­put­ed or legal­ly estab­lished claims. The cus­tomer is only enti­tled to the asser­tion of a right of reten­tion because of such coun­ter­claims that result from the same con­trac­tu­al rela­tion­ship as those claims that are coun­tered by the right of reten­tion.

3.8 If a dis­rup­tion of the Michael Schmitt Ltd. ser­vices, which is con­sid­er­able, lasts longer than one week and if an actu­al down­time peri­od of more than one work­ing day is reached, the cus­tomer is enti­tled to reduce the month­ly fees and charges accord­ing­ly from the time of the occur­rence until the removal of the dis­rup­tion. A sig­nif­i­cant imped­i­ment exists if

– the cus­tomer is no longer able to access the Michael Schmitt Ltd. infra­struc­ture for rea­sons for which the cus­tomer or third par­ties are not respon­si­ble, and there­fore can no longer use the ser­vices list­ed in the con­tract and

– the use of these ser­vices as a whole is made con­sid­er­ably more dif­fi­cult or the use of indi­vid­ual ser­vices list­ed in the con­tract becomes impos­si­ble or com­pa­ra­ble restric­tions exist.

3.9 In the event of a fail­ure of ser­vices due to a dis­tur­bance out­side the area of respon­si­bil­i­ty of Michael Schmitt Ltd. The same applies to the fail­ure of ser­vices due to nec­es­sary inter­rup­tions of oper­a­tion accord­ing to 10 of the AGB.

4 Dates, dead­lines and obsta­cles to per­for­mance

4.1 Deliv­ery dates or peri­ods, which can be agreed upon bind­ing or non-bind­ing, must be in writ­ing.

4.2 If the coop­er­a­tion of the cus­tomer is nec­es­sary or agreed upon for the ser­vice of Michael Schmitt Ltd., the deliv­ery time is extend­ed by the time the cus­tomer has not ful­filled this oblig­a­tion.

4.3 In case of delays due to

– Changes in the require­ments of the cus­tomer

– insuf­fi­cient require­ments in the appli­ca­tion envi­ron­ment (hard­ware or soft­ware deficits), as far as they were not known or should not have been known to Michael Schmitt Ltd.
– Prob­lems with third-par­ty prod­ucts (e.g. soft­ware from oth­er com­put­er man­u­fac­tur­ers)

the deliv­ery or ser­vice date shall be extend­ed accord­ing­ly.

4.4 If Michael Schmitt Ltd. is unable to pro­vide its con­trac­tu­al ser­vices or can­not pro­vide them on time as a result of indus­tri­al action, force majeure or oth­er cir­cum­stances that are unavoid­able for it, Michael Schmitt Ltd. shall not suf­fer any adverse legal con­se­quences.

4.5 If the cus­tomer orders changes or addi­tions that are not only minor in scope, dates and dead­lines that are based on the orig­i­nal sub­ject mat­ter of the con­tract shall lose their valid­i­ty.

5 Approval

5.1 The cus­tomer will accept the ser­vices of Michael Schmitt Ltd. imme­di­ate­ly as soon as Michael Schmitt Ltd. announces the readi­ness for accep­tance.

5.2 The ser­vices of Michael Schmitt Ltd. are deemed to have been accept­ed if the com­pa­ny has noti­fied the readi­ness for accep­tance, point­ing out the sig­nif­i­cance of the omis­sion of the accep­tance dec­la­ra­tion

– and the cus­tomer there­upon does not declare accep­tance or refuse accep­tance, stat­ing defects to be detailed to the best of his abil­i­ty, with­in a peri­od of time which allows him to detect sub­stan­tial defects dur­ing the required care­ful inspec­tion, but at the lat­est after 20 work­ing days,

– or the cus­tomer places the web­site or parts of it on the Inter­net acces­si­ble to third par­ties with­out fur­ther exam­i­na­tion or com­mis­sions Michael Schmitt Ltd. to do so, unless the non-accep­tance is not due to a sig­nif­i­cant defect in the ser­vices pro­vid­ed by Michael Schmitt Ltd.

5.3 If readi­ness for accep­tance is not noti­fied, the time at which the cus­tomer should rea­son­ably have become aware of the ser­vices shall apply instead of the time of noti­fi­ca­tion.

6 Duty to coop­er­ate

6.1 The cus­tomer shall pro­vide nec­es­sary data, espe­cial­ly con­tents to be entered for the web­sites in a time­ly man­ner and in dig­i­tal form.

6.2 Inso­far as Michael Schmitt Ltd. pro­vides the cus­tomer with drafts and/or test ver­sions, spec­i­fy­ing a rea­son­able peri­od of time for check­ing their cor­rect­ness and com­plete­ness, the drafts and/or test ver­sions are deemed to have been approved upon expiry of this peri­od, unless Michael Schmitt Ltd. receives a request for cor­rec­tion.

6.3 The cus­tomer is respon­si­ble for suf­fi­cient resources and infor­ma­tion with­in the scope of his duty to coop­er­ate. He shall ensure the avail­abil­i­ty of the required num­ber of com­pe­tent employ­ees from a pro­fes­sion­al and IT point of view and suf­fi­cient com­put­er capac­i­ties such as mem­o­ry, proces­sor pow­er and line capac­i­ties.

6.4 If Michael Schmitt Ltd. deems it nec­es­sary, the cus­tomer shall pro­vide a test envi­ron­ment (hard­ware with cur­rent soft­ware sta­tus, in par­tic­u­lar the oper­at­ing sys­tem and serv­er soft­ware cor­re­spond­ing to the lat­er con­di­tions of use).

6.5 As soon as errors or impair­ments of the func­tion­al­i­ty of the ser­vices of Michael Schmitt Ltd. occur, such as e.g. a web­site, the cus­tomer shall imme­di­ate­ly inform Michael Schmitt Ltd. of this, stat­ing the time and error spec­i­fi­ca­tion as well as the name and telecom­mu­ni­ca­tion data (tele­phone, e‑mail) of the report­ing and respon­si­ble employ­ee.

6.6 The cus­tomer is respon­si­ble for the trou­ble-free oper­a­tion of the equip­ment for remote main­te­nance and ser­vic­ing, espe­cial­ly sta­ble data lines and inter­faces.

6.7 The cus­tomer is oblig­ed to use the ser­vices of Michael Schmitt Ltd. in a prop­er man­ner. In par­tic­u­lar he is oblig­ed to,

1. 1. a) to inform Michael Schmitt Ltd. imme­di­ate­ly of any changes in the con­trac­tu­al basis;

• b) not to mis­use the access pos­si­bil­i­ties to the Michael Schmitt Ltd. ser­vices and to refrain from legal and/or ille­gal actions In par­tic­u­lar, the cus­tomer is for­bid­den

– to use the ser­vices of oth­er par­tic­i­pants of the Michael Schmitt Ltd. ser­vices with­out autho­riza­tion,

– to use ser­vices not agreed upon in the con­tract between Michael Schmitt Ltd. and the cus­tomer with­out autho­riza­tion,

– read or change pass­words, e‑mails, files or sim­i­lar of oth­er par­tic­i­pants of the Michael Schmitt Ltd. ser­vices or the sys­tem oper­a­tor to decrypt,

– to dis­trib­ute indi­vid­ual appli­ca­tions of licensed appli­ca­tion soft­ware via the Michael Schmitt Ltd. ser­vices with­out autho­riza­tion,

– to inter­rupt or block com­mu­ni­ca­tion ser­vices, e.g. by over­load­ing, inso­far as the cus­tomer is respon­si­ble for this,

– to dis­sem­i­nate or make avail­able crim­i­nal con­tents of any kind via ser­vices of Michael Schmitt Ltd.,

– This applies in par­tic­u­lar to porno­graph­ic con­tent that glo­ri­fies vio­lence or con­tent that is direct­ed against the free demo­c­ra­t­ic basic order or the idea of inter­na­tion­al under­stand­ing, as well as to pro­pa­gan­da mate­r­i­al and sym­bols of uncon­sti­tu­tion­al par­ties and asso­ci­a­tions or their sub­sti­tute organ­i­sa­tions,

– to obtain porno­graph­ic con­tent for him­self or her­self or for third par­ties that involves the sex­u­al abuse of chil­dren.

– In the event of a breach of con­tract (in par­tic­u­lar against the above-men­tioned points) the cus­tomer shall reim­burse Michael Schmitt Ltd. for any mate­r­i­al and per­son­nel expens­es incurred as well as for any out-of-pock­et expens­es.

• c) to ensure the ful­fil­ment of legal reg­u­la­tions and offi­cial require­ments, inso­far as these are or will be rel­e­vant for par­tic­i­pa­tion in the Michael Schmitt Ltd. net­work;

• d) to take into account the applic­a­ble pro­vi­sions of data pro­tec­tion and the recog­nised prin­ci­ples of data secu­ri­ty and to com­ply with them;

• e) to noti­fy Michael Schmitt Ltd. imme­di­ate­ly of any recog­nis­able defects or dam­age (fault reports) and to take all mea­sures which enable the defects or dam­age and their caus­es to be deter­mined or which facil­i­tate and accel­er­ate the elim­i­na­tion of the fault;

• f) to reim­burse Michael Schmitt Ltd. for the expens­es incurred by the inspec­tion of his equip­ment after a fault report has been sub­mit­ted, if and inso­far as the inspec­tion reveals that a fault was with­in the customer’s area of respon­si­bil­i­ty (out­side the defined scope of the con­tract and ser­vices).

• g) If the cus­tomer vio­lates the above-men­tioned oblig­a­tions, Michael Schmitt Ltd. is enti­tled to ter­mi­nate the con­trac­tu­al rela­tion­ship with­out notice and, if nec­es­sary, to block access to the ser­vices result­ing from the scope of ser­vices imme­di­ate­ly and in oth­er cas­es after unsuc­cess­ful warn­ing.

• h) Details of the inter­ac­tion between the users can be agreed upon in part­ner­ship by means of a user reg­u­la­tion.

7 Rights of use

7.1 Michael Schmitt Ltd. grants the cus­tomer a sim­ple [exclu­sive / with the excep­tion of Michael Schmitt Ltd. exclu­sive] and [non-] trans­fer­able right of use. If Michael Schmitt Ltd. pro­vides ser­vices for the design of the customer’s inter­net pres­ence, the pur­pose of use of the web­site and/or its com­po­nents is lim­it­ed to use on the inter­net. The cus­tomer acquires this right upon full pay­ment of the ser­vices of Michael Schmitt Ltd.

7.2 Upon request, the cus­tomer is oblig­ed to pro­vide Michael Schmitt Ltd. with writ­ten infor­ma­tion about the scope of use.

7.3 Michael Schmitt Ltd. assumes when using the customer’s tem­plates that these are not encum­bered with the rights of third par­ties or that the cus­tomer has the right of use required for the order.

7.4 Michael Schmitt Ltd. also makes use of the rights of third par­ties (third-par­ty licence mate­r­i­al) for the web­site, which can only be trans­ferred to the cus­tomer with restric­tions – espe­cial­ly in terms of time. The lim­it­ed trans­fer can, among oth­er things, lead to the fact that third-par­ty licence mate­r­i­al is no longer avail­able or is avail­able at sig­nif­i­cant­ly changed con­di­tions over which Michael Schmitt Ltd. has no influ­ence. In this case, Michael Schmitt Ltd. will make every effort to use sim­i­lar mate­r­i­al.

7.5 Michael Schmitt Ltd. may invoice the cus­tomer for the costs of third par­ty licence mate­r­i­al by pre­sent­ing the licensor’s invoice with a ser­vice charge of 5 €. Any fur­ther iden­ti­fi­ca­tion of com­po­nents of the web­site encum­bered with third-par­ty rights will not be made.

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7.6 The cus­tomer may only use third-par­ty license mate­r­i­al in con­nec­tion with and with­in the scope of the web­site. If a claim is made against Michael Schmitt Ltd. by the licenser because the third-par­ty licence mate­r­i­al was not used accord­ing­ly, the cus­tomer is liable to com­pen­sate Michael Schmitt Ltd. for any result­ing dam­age.

7.7 The cus­tomer is oblig­ed to inform Michael Schmitt Ltd. about any unlaw­ful use of the licence mate­r­i­al that becomes known to him, as well as to take legal action against an infringer of indus­tri­al prop­er­ty rights or to sup­port Michael Schmitt Ltd. in doing so.

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7.8 If the cus­tomer becomes aware of vio­la­tions of rights of use through the ser­vices of Michael Schmitt Ltd. e.g. through warn­ings from third par­ties, he will inform Michael Schmitt Ltd. imme­di­ate­ly.

7.9 A direct or imme­di­ate use of the Michael Schmitt Ltd. ser­vices by third par­ties is not per­mit­ted. The cus­tomer may not use the ser­vices for his own pur­pos­es, resell or sub­let them. The cus­tomer must prop­er­ly instruct third par­ties in the use of the ser­vices. The cus­tomer is respon­si­ble to Michael Schmitt Ltd. for the com­pli­ance with the con­trac­tu­al pro­vi­sions by the third par­ty in the same way as he him­self would be respon­si­ble for their com­pli­ance.

7.10 The Cus­tomer shall also pay the fees that have arisen from the access and use of the ser­vices pro­vid­ed to him by third par­ties. The same applies in case of unau­tho­rized use of the ser­vices by third par­ties, unless the cus­tomer proves that the unau­tho­rized use was caused by cir­cum­ven­tion or removal of the secu­ri­ty mea­sures of Michael Schmitt Ltd. with­out being respon­si­ble for this.

8 Copy­right notices and ref­er­ences

8.1 The cus­tomer grants Michael Schmitt Ltd. the right to include the logo of Michael Schmitt Ltd. in the imprint of the customer’s web­site and to link it to the web­site of Michael Schmitt Ltd. The cus­tomer will adopt all pro­tec­tive notices such as copy­right notices and oth­er legal reser­va­tions unchanged. This applies in par­tic­u­lar to the ref­er­ences to the orig­i­na­tor in the pro­gram code.

8.2 The client agrees that Michael Schmitt Ltd. may dis­play the graph­ics, web­sites etc. cre­at­ed for the client as a ref­er­ence in his pub­lic gal­leries on the home­page if required or use them in oth­er adver­tis­ing mate­r­i­al as proof of his work. A pub­li­ca­tion of the URL of the web­site edit­ed by Michael Schmitt Ltd. is per­mit­ted. The client allows Michael Schmitt Ltd. to place a link to his own home­page in the foot­er as well as on the imprint page and the client is not enti­tled to remove it with­out the writ­ten con­sent of the web design­er. Any infringe­ment of the right to be named shall enti­tle the client to com­pen­sa­tion. The amount of com­pen­sa­tion is 50% of the agreed fee for the cre­ation of the web­site. The right to claim high­er dam­ages upon proof remains unaf­fect­ed.

9 War­ran­ty

9.1 Defec­tive deliv­er­ies or ser­vices will be repaired or replaced by Michael Schmitt Ltd. with­in the war­ran­ty peri­od of 12 months, which begins with the date of deliv­ery or accep­tance, after appro­pri­ate noti­fi­ca­tion by the cus­tomer. Michael Schmitt Ltd. will rem­e­dy the defects free of charge or pro­vide the cus­tomer with a cor­rect­ed release ver­sion (mod­i­fied ver­sion that no longer con­tains the defect com­plained about) free of charge. Any addi­tion­al expens­es will be charged accord­ing to expen­di­ture.

9.2 The cus­tomer shall imme­di­ate­ly imple­ment the mea­sures to rem­e­dy the defects (e.g. install new releas­es) and in doing so observe the duties of noti­fi­ca­tion (§ 6).

9.3 Under unfa­vor­able cir­cum­stances, mul­ti­ple cor­rec­tions may be nec­es­sary. Defects are devi­a­tions of the cre­at­ed web­site ele­ments from the agreed design and func­tion­al­i­ty, as far as these devi­a­tions affect the suit­abil­i­ty for the agreed use.

9.4 Claims for defects do not exist if the defect is only insignif­i­cant, i.e. in par­tic­u­lar if it does not have a sig­nif­i­cant effect on the agreed use.

9.5 If the sub­se­quent per­for­mance fails with­in a peri­od set by the cus­tomer for sub­se­quent per­for­mance, the cus­tomer may demand the can­cel­la­tion of the con­tract or a reduc­tion of the pur­chase price.

9.6 Obvi­ous defects that are eas­i­ly notice­able to an aver­age cus­tomer must be report­ed in writ­ing by the cus­tomer to Michael Schmitt Ltd. with­in 10 work­ing days of deliv­ery. Defects that are not obvi­ous must be report­ed to Michael Schmitt Ltd. with­in 10 work­ing days after detec­tion. Oth­er­wise claims aris­ing from these defects can­not be assert­ed. The defects, in par­tic­u­lar the error mes­sages that have occurred, are to be repro­duced in detail to the best of our abil­i­ty (e.g. through error logs).

10 Lia­bil­i­ty

10.1 Michael Schmitt Ltd. has unlim­it­ed lia­bil­i­ty for defects of title and guar­an­tees. The lia­bil­i­ty accord­ing to the prod­uct lia­bil­i­ty law remains unaf­fect­ed.

10.2 For inten­tion­al or gross­ly neg­li­gent breach­es of duty Michael Schmitt Ltd. This also applies to legal rep­re­sen­ta­tives and vic­ar­i­ous agents of Michael Schmitt Ltd.

10.3 Michael Schmitt Ltd. and its vic­ar­i­ous agents are only liable for slight neg­li­gence with­in the scope of the vio­la­tion of essen­tial oblig­a­tions (oblig­a­tions whose vio­la­tion endan­gers the achieve­ment of the pur­pose of the con­tract) and for the vio­la­tion of so-called car­di­nal oblig­a­tions (oblig­a­tions whose ful­fil­ment makes the prop­er exe­cu­tion of the con­tract pos­si­ble in the first place and on whose com­pli­ance the cus­tomer reg­u­lar­ly relies), but in each case only for the fore­see­able dam­age typ­i­cal for the con­tract. Michael Schmitt Ltd. is not liable for the slight­ly neg­li­gent vio­la­tion of oth­er oblig­a­tions.

10.4 The above-men­tioned lim­i­ta­tions of lia­bil­i­ty do not apply in the event of injury to life, body or health, for a defect after the assump­tion of a guar­an­tee for the qual­i­ty of the prod­uct and for fraud­u­lent­ly con­cealed defects. The lia­bil­i­ty accord­ing to the prod­uct lia­bil­i­ty law remains unaf­fect­ed.

10.5 The lia­bil­i­ty for loss of data is lim­it­ed by the typ­i­cal recov­ery effort. This is mea­sured accord­ing to the dam­age that would have occurred if rea­son­able secu­ri­ty mea­sures had been tak­en (such as mak­ing back­up copies).

10.6 Claims for dam­ages due to deliv­ery and ser­vice dis­rup­tions are exclud­ed, as long as Michael Schmitt Ltd. is not respon­si­ble for them due to intent or gross neg­li­gence.

10.7 If the lia­bil­i­ty of Michael Schmitt Ltd. is exclud­ed or lim­it­ed, this also applies to the per­son­al lia­bil­i­ty of employ­ees, rep­re­sen­ta­tives and vic­ar­i­ous agents.

10.8 The cus­tomer is liable for all con­se­quences and dis­ad­van­tages that arise for Michael Schmitt Ltd. or third par­ties due to the improp­er or ille­gal use of the Michael Schmitt Ltd. ser­vices or due to the cus­tomer not ful­fill­ing his oth­er oblig­a­tions.

11 Oblig­a­tion of the cus­tomer to back­up data

The cus­tomer is oblig­ed to pro­tect him­self ade­quate­ly against data loss. Since the new instal­la­tion of soft­ware, but also the mod­i­fi­ca­tion of the installed soft­ware entails the risk of data loss, the cus­tomer is oblig­ed to take pre­cau­tions against data loss by means of com­pre­hen­sive data pro­tec­tion before new instal­la­tion or mod­i­fi­ca­tion of the installed soft­ware.

12 Data pro­tec­tion and con­fi­den­tial­i­ty

12.1 Michael Schmitt Ltd. stores the customer’s data (e.g. address and bank details) required in the con­text of the con­tract ini­ti­a­tion and pro­cess­ing in elec­tron­ic form.

12.2 Michael Schmitt Ltd. declares that its employ­ees [free­lancers, trainees, interns, etc.], who work with­in the scope of this con­tract, have been bound to data secre­cy accord­ing to § 5 BDSG and that Michael Schmitt Ltd. has tak­en the tech­ni­cal and orga­ni­za­tion­al mea­sures required accord­ing to § 9 BDSG to ensure the exe­cu­tion of the reg­u­la­tions of the BDSG.

12.3 Con­nect­ing a net­work to the Inter­net cre­ates the pos­si­bil­i­ty of mis­use of data. The cus­tomer must there­fore pro­tect sen­si­tive data in par­tic­u­lar from unau­tho­rized access by means of his own secu­ri­ty mea­sures.

12.4 Both con­tract­ing par­ties shall treat con­fi­den­tial­ly marked infor­ma­tion that they become aware of in the course of the con­tract. Soft­ware-relat­ed doc­u­ments such as doc­u­men­ta­tion and, above all, the source code must be pro­tect­ed against unau­tho­rized access.

12.5 Michael Schmitt Ltd. points out that, accord­ing to the cur­rent state of the art, it is not pos­si­ble to pre­vent the repro­duc­tion of works, in par­tic­u­lar of graph­ics or oth­er opti­cal or acoustic design ele­ments, which are placed online.

13 Ter­mi­na­tion

13.1 In the case of main­te­nance con­tracts, the cus­tomer may ter­mi­nate the con­tract in an order­ly man­ner at the ear­li­est 12 months after con­clu­sion of the con­tract. The con­tract is extend­ed by 6 months in each case if it is not ter­mi­nat­ed in writ­ing 3 months before the end of the con­tract.

13.2 The right to ter­mi­nate for good cause remains unaf­fect­ed. In par­tic­u­lar in the case of a vio­la­tion of § 7 and if the cus­tomer is in default with the pay­ment of the remu­ner­a­tion by more than one month, Michael Schmitt Ltd. can ter­mi­nate with­out notice.

14 Noti­fi­ca­tions

14.1 Inso­far as the con­tract­ing par­ties com­mu­ni­cate by e‑mail, they acknowl­edge the unlim­it­ed valid­i­ty of the dec­la­ra­tions of intent trans­mit­ted in this way in accor­dance with the fol­low­ing pro­vi­sions.

14.2 The e‑mail must con­tain the name and e‑mail address of the sender, the time of send­ing (date and time) and a repro­duc­tion of the name of the sender as the con­clu­sion of the mes­sage.

14.3 Con­fi­den­tial­i­ty can­not be guar­an­teed for data trans­mit­ted unen­crypt­ed over the Inter­net. At the request of the oth­er par­ty, each con­tract­ing par­ty shall make avail­able a coor­di­nat­ed encryp­tion sys­tem, such as PGP, on its own site.

14.4 An e‑mail received with­in the scope of the above pro­vi­sions shall be deemed to have orig­i­nat­ed from the oth­er part­ner, unless proven oth­er­wise.

14.5 The bind­ing nature of the e‑mail and thus of the text form shall apply to all dec­la­ra­tions that are made in the ordi­nary course of the con­tract. How­ev­er, the text form is exclud­ed in the case of a ter­mi­na­tion, mea­sures for the ini­ti­a­tion or exe­cu­tion of arbi­tra­tion pro­ceed­ings, as well as dec­la­ra­tions that are express­ly request­ed in writ­ing by a con­trac­tu­al part­ner in devi­a­tion from this agree­ment.

15 Applic­a­ble law and place of per­for­mance

15.1 The con­tract­ing par­ties agree that Eng­lish law shall apply to all legal rela­tion­ships aris­ing from this con­trac­tu­al rela­tion­ship. Eng­lish law shall also apply in cross-bor­der trans­ac­tions, to the exclu­sion of the UN Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods.

15.2 The place of per­for­mance for all mutu­al ser­vices aris­ing from the con­tract as well as the place of juris­dic­tion shall be the reg­is­tered office of Michael Schmitt Ltd.