General Terms and Conditions of EuroSkyPark GmbH
Last updated: January 2019
General Terms and Conditions
1 Scope / conclusion of agreement
1.1 The General Terms and Conditions (GTC) below apply to all deliveries to EuroSkyPark GmbH (ESP) as well as construction services and services ordered from ESP.
1.2 The Customer shall perform a qualified inspection of the order and/or contract and report all inaccuracies and uncertainties in writing. Amendment and additional agreements shall only be effective if approved in writing by ESP.
1.3 The Customer shall accept the GTC of ESP no later than upon commencement of the fulfilment of the order and/or contract.
1.4 All of ESP’s offers and related documents are non-binding and subject to confirmation.
1.5 A contract on the use of the services shall only be concluded by the customer placing a written or electronic order (e.g. by using the corresponding order form) (offer) and receipt of the subsequent order confirmation by ESP (acceptance) or silently by granting the rights of use in the respective services (approval).
1.6 ESP may reject an offer without stating any reasons. ESP may make the conclusion of an agreement dependent on the presentation of a written authorisation, rent agreement, personal ID card, land ownership declaration or provision of adequate securities. ESP may further make the conclusion of an agreement dependent on the payment of a fee for connecting the house.
1.7 ESP’s obligation to provide services shall be subject to the existence of the correct conditions in terms of infrastructure and technology for such services (particularly the rental of a telephone line from a third-party provider) and/or the correct and timely receipt of advance services from its own suppliers in the event of ESP having concluded congruent hedging transaction with the required diligence and care and the incorrect or late delivery of the service falling outside the scope of control of ESP. Within the meaning of this paragraph, advance services comprise all hardware and software equipment, installation and other technical services provided by third parties, and in particular the power supply.
1.8 Deviating terms and conditions of the Customer shall not form part of the Agreement, even if the Customer fails to explicitly object to these GTC on an individual basis and/or ESP has accepted the delivery or service. All terms and conditions contained in the Customer’s order, delivery or other confirmations that are aimed at ESP shall herewith be rejected. Any terms and conditions that deviated from the GTC shall only be valid if approved in writing by ESP. Specific written product and service conditions of ESP’s subcontractors and/or the manufacturers may be added to these GTC. They shall also form part of the Agreement. In the event of the delivery pertaining to software products, the manufacturers’ licensing terms and conditions that accompany the software products shall become the licensing terms and conditions between the Customer and ESP.
1.9 These GTC shall also apply to all future trading transactions concluded between the Customer and ESP. The current version on the date of the conclusion of the Agreement shall apply.
2 Written form requirement
Orders and/or contracts and related agreements, amendments and declarations shall be placed in writing to become binding.
3 Basis of the Agreement
The following documents, if available, shall form the basis of the Agreement in the order stated:
– Written order and any description of services attached,
– Additional terms and conditions of the Customer if referenced in writing and any additional contractual agreements specified in writing,
– These GTC,
– General additional terms and conditions regarding occupational health and safety (General Supplementary Conditions: Industrial Safety; AZB-Arbeitssicherheit),
– General regulations applicable to the order and recognised rules of technology, such as VDE regulations and legal provision,
– ESP’s contractual terms and conditions that have been included in the service and supply agreement and which the Customer has fully adopted upon separate agreement with ESP, in whole or part thereof, as they contain technical details or other regulations relating specifically to the service and therefore do not constitute any general terms and conditions of ESP.
In the event of contradictions found between these GTC and the general terms and conditions of the Customer, the legal provisions shall replace the contradicting terms and conditions with regard to all matters affected by the contradiction.
4 Amendments to the General Terms and Conditions
4.1 ESP may amend the GTC and specific terms and conditions of business.
4.2 Amendments shall always be implemented for good cause and comply with the key provisions of the Agreement. Amendments shall be implemented to adjust the GTC to developments that were unforeseeable at the time the Agreement was concluded (technical innovation, accounting for regulatory rulings and new legislation, discontinuation of advance services provided by third parties, remediation of difficulties during the performance of the Agreement, omissions found in the contractual framework, etc.) and ignoring such developments would significantly impede the contractual balance.
4.3 ESP shall notify the Customer in writing of any planned amendments. The amendments shall be deemed to have been approved by the Customer unless the latter objects to them in writing. Such objection shall reach ESP within six weeks from announcement of the amendment. In the event of an objection being received, the Agreement shall be continued without amendment. This shall not affect the Contracting Parties’ right to terminate the Agreement. ESP shall inform the Customer of these consequences in the written notice.
4.4 In the event of changes to VAT and costs for connection and/or third-party services that are provided using the ESP, ESP may adjust the corresponding price lists accordingly without this giving the Customer the right to terminate the Agreement. In such case, the amendment shall become effective upon announcement, unless ESP has explicitly stated a later date.
5 ESP services (scope, change and limitation)
5.1 ESP provides the Customer with access to its existing communication infrastructure and use of its services. The type and scope of contractual services are stated in the Agreement, including the GTC and special terms and conditions of business as well as the respective applicable price lists.
5.2 Any free-of-charge services provided by ESP may be discontinued at any time, at short notice and without requiring approval from the Customer. The Customer shall not be entitled to assert any claims on the grounds of the discontinuation of such services, in particular claims for reduced fees, reimbursements or compensation. ESP shall announce such changes in good time insofar as possible.
5.3 ESP shall provide and maintain its services in an operational condition. The Customer is aware that ICT services are subject to changes due to technical innovation and possible new legal and/or official regulations. ESP may therefore adjust its services to meet the respective state-of-the-art in the telecommunications sector. However, the Customer may generally not request an adjustment of the scope of services to account for technical innovation if ESP has provided the service on the basis of the state-of-the-art applicable at the time of conclusion of the Agreement and there are no legal obligations to adjust them. ESP reserves the right to change its services for compelling technical or operational reasons to the required extent which can be deemed reasonable for the Customer, if ESP is unable to solve the situation with other reasonable economic effort or in any other manner.
5.4 ESP may engage a third party to provide all or part of its services, on a temporary or permanent basis. No contractual relationship shall be entered into between the third party and the Customer. All invoices shall be prepared and issued by ESP.
5.5 ESP may block access to an offer containing illegal or indecent content at any time and without notice.
5.6 When providing / using services outside the Federal Republic of Germany, foreign laws, ordinances and other country-specific stipulations or transfer-related conditions may result in it being impossible to perform the Agreement in the intended manner and/or the Agreement having to be amended.
6 Service dates and deadlines
6.1 Dates and deadlines for the provisions of the services are specified in the agreement with the Customer. They are only binding for the commencement of the services if explicitly confirmed in writing by ESP and/or if the Customer has created all of the conditions within its scope of its control that are required for performing the services in good time (e.g. presentation of all documents and plans, obtaining all approvals and authorisations, etc.) so that ESP is able to provide the service on the specified date. In the event of ESP experiencing a temporary and unforeseeable impairment of services that falls without its scope of control, the agreed dates and deadlines shall be postponed for the duration of such impairment.
6.2 The deadlines shall be extended for the period in which the Customer fails to meet its obligations to ESP. This shall not affect the rights of ESP on the grounds of delay caused by the Customer. If ESP has taken every measure required to provide the services up to the time that the provision of services stops on the grounds of circumstances that fall within the Customer’s scope of control, ESP may invoice the Customer for the monthly usage-based fee if the Customer fails to meet a period of grace of 10 days granted by ESP in writing.
6.3 In the event of ESP being delayed in its delivery of services, the Customer may withdraw from the Agreement after issuing a written warning and once a reasonable period of grace of at least 14 days granted by the Customer has expired.
7 Duties and obligations of the Customer
7.1 The Customer shall handle the equipment and devices provided with due care and attention, protect them against external voltages and/or magnetic influences and refrain from modifying or interfering with them in any other way, particularly for the purpose of maintenance. Work of any kind on the devices may be exclusively performed by ESP or third parties engaged to do so by ESP. For this purpose, the Customer shall provide ESP’s employees and/or vicarious agents with access to the customer connections installed by ESP in a manner that enables ESP to meet its contractual obligations. The Customer shall be responsible for its own technical equipment that facilitates the use of ESP’s services.
7.2 The Customer shall, free of charge and in good time, create all of the conditions within its operations that are required for installing and providing the services, such as providing suitable premises for installation, suitable ducts as well as electricity and earthing options. The Customer shall maintain all of these facilities in a functional and proper condition for the term of the Agreement.
7.3 The Customer shall, in particular,
• Provide honest information on its data and announce any changes to its name (for companies also changes to the legal structure, invoicing address and head office), address, bank details (contractual data) and fundamental changes of its financial circumstances (e.g. application to commence insolvency proceedings, initiation of enforcement measures) immediately or engage an authorised representative to announce them insofar as this is required for the proper performance of the contractual relationship. In the event of the Customer failing to notify ESP of changes to its contractual data, it shall carry the costs for determining the data required for performing the contractual relationship.
• Support ESP in obtaining all authorisations required for providing the services. The Customer shall also ensure compliance with the terms and conditions and constraints linked to such authorisations. Obtaining all authorisations, permits, etc. of the land owners / planning authority and other instances that are required for providing the contractually agreed services shall be a key obligation of the Customer. The Customer is aware that failure to comply with this key obligation in good time results in ESP being unable to provide the services and/or contractual services on time. Notwithstanding the rights arising from delay, however, ESP may in such case proceed in accordance with Section 8 paragraph 2 and invoice the Customer for the monthly payable non-usage-based fee.
• Provide ESP with all information and documents required for performing the services. In particular, the Customer shall inform ESP about existing technical or other equipment, supply services, items and substances (e.g. water and gas pipes, electric wiring or asbestos) which may be damaged during the installation of systems or which may endanger or injure the persons engaged with the installation. The Customer shall inform ESP immediately of any subsequent changes to this information. The Customer shall hold ESP harmless of all third-party claims arising from a violation of this obligation to provide information.
• Notify ESP in good time of new applications or modifications of existing applications which have an effect on the provision of services.
• Comply with all legal and official provisions that apply to the use of the services provided by ESP and only use equipment and devices that meet the regulations of the Federal Republic of Germany. The Customer shall use the ordered services as intended, properly and in accordance with the relevant applicable laws and directives, particularly the recognised and current data protection regulations as stipulated in the Federal Data Protection Act (Bundesdatenschutzgesetz BDSG), the German Telecommunications Act (Telekommunikationsgesetz – TKG) and the directives issued on the basis of these laws and refrain from any illegal activities. The Customer shall, in particular, refrain from making threatening or nuisance calls to third parties, engaging in acts of corruption, manipulating or otherwise bypassing access restrictions and security devices, and offering or distributing derogatory, slanderous, indecent or illegal contents or promoting the distribution of such contents. The Customer shall notify ESP immediately, first verbally then in writing, of any improper or illegal use of the services provided by third parties or any suspicion of such activities. The Customer shall, in particular, implement suitable measures to prevent illegal or indecent contents being seen, particularly by children and adolescents or other persons requiring protection.
• Report discernible damage and defects on the ESP systems located in the premises of the Customer and/or owner or authorised user and the connection equipment as well as all other circumstances that may impair the provision of the services by ESP immediately and support ESP in the troubleshooting process and rectification of such damage or defects within a reasonable scope. Should the troubleshooting activities uncover that the functional defect is not caused by a defective service provided by ESP, ESP may invoice the Customer for any costs incurred in this respect. This shall not affect any further-reaching claims for damages.
7.4 The Customer shall undertake to ensure that the network infrastructure or parts thereof are not overloaded by misuse and excessive use.
7.5 The Customer shall name a sufficiently qualified contact person who can be contacted by ESP at any time to answer technical queries of any kind to the best of their abilities, if such queries are required for the provision of the services by ESP and are based on reasons that fall within the Customer’s scope of responsibility.
7.6 Unless otherwise agreed, the Customer shall be solely responsible for implementing the necessary security measures to prevent all types of misuse, data loss, transmission errors and operational disruptions, including those caused by employees. However, services provided by ESP shall not relieve the Customer of its obligation to comply with the common and recognised security standards. These include, in particular:
a) Keeping strictest confidentiality about all personal passwords, user names and access IDs received for accessing the services and immediately changing all initial passwords disclosed by ESP or pre-installed. The Customer shall inform ESP immediately if it obtains knowledge of the fact that an authorised third party has obtained a password and/or access data,
b) Regularly changing passwords and standard access controls,
c) Running regularly updated anti-virus programs,
d) Checking the plausibility of incoming data,
e) Regularly backing up data at the end of each working day on which the data sets have been modified. This obligation also comprises full data backups, particularly before the commencement of any work performed by ESP or the installation of hardware and software that has been supplied, and
f) Thorough testing of each program for defects and ensuring its usability in the specific situation in which it is being used before using the program in operations. This also applies to programs which the Customer has been supplied by ESP as part of warranty and maintenance.
8.1 Unless explicitly stated otherwise, the prices listed in the order and/or contract are fixed prices.
8.2 By accepting the offer and/or executing the order, the Customer confirms that it has obtained information of all of the factors that influence pricing.
8.3 The compensation (fee) to be paid by the customer is based on the respective price list applicable to the services provided which was presented to the Customer at the conclusion of the Agreement for the respective services or at the time of a price change. All prices exclude VAT in the amount payable at the time of the provision of services.
8.4 The Customer’s payment obligation starts on the date the service is provided in an operational state, with the exception of Section 6.2. In the event of monthly non-usage-based fees being payable for parts of a calendar month, each day of the month for which a payment obligation exists is invoiced. The Customer shall pay all usage-based and non-usage-based fees within 14 days from date of invoice.
9 Assignment of receivables / offsetting
9.1 Notwithstanding the assignment of monetary receivables in accordance with Section 354a of the German Commercial Code (Handelsgesetzbuch – HGB), the Customer shall not be permitted to assign its receivables from ESP to third parties or to engage third parties to collect them without first obtaining written permission to do so from ESP.
9.2 ESP may offset payment requests of the Customer against payment claims against the Customer that are due for payment, including companies affiliated with ESP within the meaning of Sections 15 et seqq. of the German Stock Corporation Act (Aktiengesetz – AktG). The same shall apply to any rights of retention. ESP may further assign all of its receivables arising from the Agreement concluded with the Customer to third parties without requiring the Customer’s permission to do so.
9.3 The Customer may only offset receivables that are undisputed, ready for a decision or found to be legally binding. This shall not affect the rights of retention.
10 Invoicing and payment
10.1 Payment shall be made in accordance with the respective individual agreement, taking into consideration the date of receipt of invoice. The Customer shall check the invoice diligently and immediately.
10.2 ESP shall issue the Customer with an invoice for the payable fee. Invoices are prepared on a monthly basis. ESP reserves the right to use other invoicing periods and request for the customer to pay in instalments. Sending invoices by e-mail does not incur a fee. ESP may charge EUR 2.50 for sending invoices in the post.
10.3 The invoiced amount shall be taken from the Customer’s account by direct debit. The Customer shall issue ESP with a direct debit mandate for this purpose. Other payment types shall require a special agreement. The direct debit payment shall be taken from the account 14 days from date of invoice at the earliest. The Customer shall undertake to keep sufficient funds in the specified account at the time of the direct debit payment to cover the invoiced amount. ESP may charge a processing fee of EUR 10.00 for each unpaid and/or returned direct debit request if the events which cause the fee falls within the scope of control of the Customer. The Customer may provide evidence that the damage incurred was less or did not occur at all.
10.4 The Customer may object against an invoice received from ESP in writing within eight weeks from receipt of invoice. The invoice shall be deemed to have been approved if no objection has been received within the specified period. The timely dispatch of the complaint is sufficient to comply with the complaint period. If the Customer can prove that the services for which it has been invoiced cannot be allocated to the Customer, ESP shall not be entitled to receive the fee. The claims shall also expire if facts give rise to assume that third parties have influenced the connection fee by performing unauthorised changes to public telecommunication networks.
10.5 If the Customer was prevented from complying with the complaint period through no fault of its own, it may subsequently send a complaint within two weeks from the removal of the obstacles.
10.6 Deliveries and services for other work performed outside the agreed services shall be invoiced on the basis of actual materials, working hours and travel times expended in accordance with the respective applicable ESP price list at the time the service was provided.
10.7 In the event of taxes, fees, contributions, levies or similar governmental charges increasing or decreasing the fees for the provision of services, the current fee shall increase or decrease accordingly.
11 Customer default
11.1 In the event of the Customer defaulting on payment, ESP may charge default interest in the amount of 9 percentage points above the base rate as from the date on which the default started.
11.2 ESP may further charge a fixed fee of EUR 40.00 for covering the costs incurred for sending warning letters. The Customer may provide proof that ESP has incurred less or no damage in individual cases.
11.3 In the event of the Customer defaulting on, or culpably violating, its other duties and obligations, ESP may request compensation for the damages incurred, including any additional costs incurred. This shall not affect the assertion of further claims by ESP on the grounds of the Customer’s default, for whatever legal reason.
12.1 In the event of ESP having doubts about the Customer’s credit rating or obtaining knowledge of a significant deterioration of the Customer’s assets once the Agreement has been concluded (due to the Customer defaulting on payment, for instance), ESP may only provide any outstanding services against advance payment or securities denominated in euros in accordance with the legal provisions.
12.2 The amount of securities depends on the amount of the average fee paid by the Customer within one month and the Customer’s outstanding payment obligation as well as the agreed term of the Agreement in the case of legal enforcement ordered by a court.
12.3 The securities can be provided in the form of a guarantee issued by a bank domiciled in the European Union. ESP may utilise a security provided by the Customer at any time to pay for outstanding receivables arising from the contractual relationship. In the event of ESP utilising a security and continuing the contractual relationship, the Customer shall replenish the securities immediately up to the originally agreed amount. The securities shall be released at the end of the contractual relationship if the Customer has settled all of ESP’s receivables.
12.4 Failure to provide the securities following a corresponding warning with reference to the consequences of such failure shall entitle ESP to discontinue or block the provision of the contractually agreed services and terminate the Agreement without notice. ESP explicitly reserves the right to assert further claims.
13.1 ESP and/or the companies engaged by ESP may block the Customer’s access to ESP services in accordance with the provisions of Section 45k TKG and charge a fee to do so if the Customer is behind in payment by EUR 75.00 or more and any securities provided have been depleted and ESP has warned the Customer in writing of such block at least two weeks in advance with reference to the option to seek remedy before the court. The costs for blocking the services are stated in the respective applicable price lists.
13.2 ESP may otherwise only impose a block without granting a period of grace and without notice if
a) The Customer has given rise for termination of the contractual relationship without notice and the block is the lesser and more reasonable measure to be taken, or
b) The equipment of ESP and/or its contracting partners, particularly the network, are threatened by risks caused by backlashes from equipment or risks to public safety, or
c) The connection volume has increased significantly compared with the previous six invoicing periods and therefore the payable fee increases significantly as well and facts give rise to believe that the Customer will complain about such increased fee, or
d) ESP has backed-up knowledge that the Customer transfers or transmits illegal information, items or other services and looks likely to repeat such actions despite unheeded warning (Section 45o TKG).
13.3 In the event of a justified block, the Customer remains obliged to pay ESP any fees owed. This shall also include a monthly basic fee for the provision of the services.
13.4 Blocks shall be limited to the affected services as far as possible in terms of technology and released as soon as the reasons for their implementation cease to exist. If it is possible to implement a send block, this shall be initially implemented for one week before blocking access to the entire network.
14 Transfer to third parties
14.1 The Customer shall not transfer the services provided, in whole or part thereof, commercially or in any other manner, to third parties for a fee (reselling) or without a fee without prior written consent from ESP. Third parties within the meaning of this provisions also include companies affiliated with the Customer in accordance with Sections 15 et seqq. AktG. In the event of a violation of this rule, ESP may terminate the Agreement for good cause and without notice. ESP may further request for the Customer to place ESP in the same position it would be if the services had not been used.
14.2 In the event of third-party use being approved, the Customer shall instruct such third parties in the proper use of the services.
14.3 The Customer shall assume liability for all damages and pay the fees arising from the authorised or unauthorised use of the services by third parties if such use falls within the Customer’s scope of control. The Customer shall carry the burden of proof within its scope of responsibility that it is not responsible for such use.
15 Disruption of services / maintenance / force majeure
15.1 ESP and the companies engaged by ESP may disrupt a service, limit its duration or discontinue it on any other manner, either temporarily or permanently, if this is required for reasons of public safety, the security of network operations, to prevent the misuse of the services, to maintain network integrity (particularly the prevention of severe disruptions to the network, software or stored data) to ensure the interoperability of the services, for data protection reasons, to combat spam and computer viruses / worms or to perform work which is necessary in terms of operations and technology. The Customer shall not be able to assert any claims on these grounds.
15.2 Disruptions for the performance servicing activities shall be implemented without notice if they are performed during off-peak times and ESP estimates that they will lead to only minor disruptions of the service. ESP shall notify the Customer in a suitable manner about the type, extent and duration of longer temporary limitations or restrictions. If the customer depends on the uninterrupted use of the contractual service or the ability to create a connection at any time whilst using the contractual service and has notified ESP in writing of such fact and its reasons, ESP shall also notify the Customer in advance of all discernible discontinuations or limitations of the service and their start.
15.3 ESP shall not be obliged to notify the Customer about the start of the discontinuation if such advance notification is objectively impossible under the circumstances or would delay the rectification of existing disruptions.
15.4 ESP may temporarily disrupt a service without notice for technical invoicing reasons.
15.5 ESP shall investigate disruptions of its services and technical equipment within the agreed periods and rectify them immediately within the scope of existing technical and operational possibilities. Any maintenance performed by ESP on the equipment and/or services shall not constitute a disruption in this sense.
15.6 Disruptions shall be rectified by an on-call service provided by ESP which shall record and rectify disruptions and to which the Customer has access during the agreed period.
15.7 The obligation to rectify disruptions shall not apply to disruptions that fall within the Customer’s scope of control or if a disruption reported by the Customer does not actually exist. A disruption which falls within the Customer’s scope of control shall exist, in particular, if it has been caused by unauthorised interference with the services and/or systems provided by ESP by the Customer or third parties engaged by the Customer or the improper operation or handling of the systems by the Customer or third parties engaged by the Customer. The Customer shall reimburse ESP for any costs incurred by inspecting the equipment and services.
15.8 If the Customer’s request to rectify a disruption is at the same time linked to modifications or improvements, these shall be reimbursed separately from the rectification of the disruption.
15.9 If a major obstruction within the scope of control of ESP of one, several or all of the services continuously exists for more than five consecutive days, the Customer may reduce the monthly fees for the period of the obstruction accordingly. A major obstruction exists if
a) The Customer can no longer access the ESP infrastructure for reasons that fall outside its scope of control and is unable to use the agreed services any longer as a result, or
b) The use of the agreed services is significantly impaired overall and/or the use if individual agreed services becomes impossible or is subject to comparable limitations.
15.10 Any further-reaching claims of the Customer on the grounds of disruptions shall be limited to damages in accordance with Section 18.
15.11 ESP shall not assume any liability for events of force majeure which make it extremely difficult or impossible for ESP to provide its services. In the event of ESP being prevented from proper fulfilment or an obligation by events of force majeure, ESP shall be relieved from its obligations for the duration of the obstruction and may postpone the fulfilment of its obligations for the duration of the obstruction and a reasonable start-up period. Force majeure is a term for all unforeseeable events or events that fall outside ESP’s scope of control, even if they were foreseeable, whose effects on the fulfilment of the Agreement could not have been prevented even if the Contracting Parties had made every reasonable effort to do so. These vents include industrial action (strikes and lockouts), war, natural disasters, measures implemented by government agencies, breakdown of communication networks and gateways of other operators, breakdown of means of transport or energy, disruptions to the services of a service carrier, unforeseen missing deliveries from suppliers or their subcontractors as long as they were selected with due care. This shall also apply to third parties which ESP engages to fulfil this Agreement. In the event of ESP being unable to provide the contractually agreed service due to an event of force majeure, the customer shall be relieved from its payment obligation for this period. If the end to the disruption is unforeseeable or lies more than 21 days in the future, each Party may withdraw from the Agreement and any fees paid in advance shall be reimbursed.
15.12 In the event of disruptions whose cause falls outside ESP’s scope of control (force majeure), ESP shall be relieved from its obligation to provide services and any form of liability for the duration of the breakdown / disruption. Disruptions within this sense are those that fall outside ESP’s scope of control (such as third parties’ failure to provide services, particularly third-party pipeline and electricity breakdowns, industrial action, including those experienced by third parties, mandatory official or court directives, natural disasters, war, etc.). Disruptions in this sense also include weather-related limitations on the transfer speed or the ability to receive or send data via satellite.
ESP shall not assume any liability for its services if disruptions are caused by
a) A violation of the duties and obligations of the Customer (Section 9),
b) The Customer’s technical equipment or network infrastructure,
c) The unsuitable, improper and/or incorrect connection to ESP’s telecommunication network by the Customer or third parties that fall outside ESP’s scope of control.
16.1 ESP shall assume unlimited liability for damages caused by acts of malicious intent or gross negligence performed by ESP, its legal representatives or vicarious agents and for damages arising from injury to life, limb and health. This shall not apply to loss of assets caused by act of gross negligence performed by ESP in connection with the provision of telecommunication services for the general public. ESP shall assume liability for such damages exclusively in accordance with Section 16.2.
16.2 ESP shall assume liability for the Customer’s loss of assets caused by acts of negligence performed by ESP, its legal representatives or vicarious agents in connection with the provision of telecommunication services for the general public (Section 44a TKG) up to EUR 12,500.00 per damage event. In the event of the end customers of the Customer incurring loss of assets due to acts of negligence performed by ESP or its vicarious agents or their failure to take action, ESP shall assume liability up to EUR 12,500.00 per end customer of the Customer. ESP’s total liability to all damaged parties shall be limited to EUR 10 million per damage event. In the event of the total of the individual damages payable on the grounds of the same damage event exceeding the maximum liability, compensation shall be reduced on a pro-rata basis so as to ensure that the compensation payable to all parties does not exceed the total liability.
16.3 Liability shall further be excluded if damages and breakdowns have occurred that fall outside ESP’s scope of control. This shall apply, in particular, to damages caused by errors or defects caused by third parties to products that are provided by ESP as part of its services, unless ESP should have recognised the error or defect prior to providing the service.
16.4 ESP shall not assume any liability for disruptions if the communication connection is used by third parties. In the event of ESP providing a connection with access to the public internet, the Customer shall ensure that it is not misused.
16.5 ESP shall assume liability for other damages caused by acts of slight negligence performed by ESP, its legal representatives or other vicarious agents subject to the provision in Section 16.1 and only for the violation of contractual obligations (material contractual obligations), with such liability being limited to the discernible damage that can typically be expected for such agreements.
16.6 ESP shall only assume liability for the loss of data and programs and their recovery if their loss could not have been prevented by the Customer implementing adequate and reasonable precautions, particularly by creating daily backup copies of all data and programs, and performing its duties and obligations specified in Section 7.
16.7 All other liability of ESP shall be excluded. In particular, ESP shall not assume any liability for further-reaching subsequent damages caused by disruptions and limitations, unless they were caused by ESP and could have been avoided. The Customer has the right to terminate the Agreement for good cause if the circumstances continue for more than 14 days. This shall not affect liability in accordance with mandatory legal provisions (e.g. the provisions of product liability law).
16.8 ESP shall not assume any liability for the information on its services transferred, neither for its completeness, accuracy nor up-to-dateness, nor that it is free from third-party rights.
16.9 Strict liability in accordance with Section 536a Paragraph 1 of the German Civil Code (Bürgerliches Gesetzbuch –BGB) shall be excluded with regard to the software and hardware provided by ESP.
16.10 The Customer shall implement adequate measures to prevent and reduce damages.
16.11 The Customer shall assume liability for damages caused by violations if its duties and obligations (to cooperate) arising from the Agreement and/or the general and specific terms and conditions of business and hold ESP harmless of all third-party claims that may be asserted against ESP on the grounds of a violation of the Customer against the above obligations. This shall not apply to any violations that fall outside the Customer’s scope of control.
17 Term and termination
17.1 The Agreement shall be concluded for the contractually agreed term. This term shall be 36 months, unless otherwise agreed on an individual basis.
17.2 Agreements with a minimum term shall start upon provision of the service or on the contractually agreed date. Both Parties may terminate them at the earliest at the end of the agreed minimum term. A written termination notice shall be sent to the other Contracting Party at least three months prior to its intended effective date. If the contractual relationship is not terminated, it shall be automatically extended by one calendar year at a time.
17.3 This shall not affect both Contracting Parties’ right to terminate the Agreement in writing for good cause. For ESP, good cause shall include, in particular, if the Customer
a) Uses the services with fraudulent intent, or
b) Violates the material provisions of these GTC and despite written warning fails to implement measures to cease such contractual violation with immediate effect, or
c) Violates criminal law whilst using the services or if there is compelling evidence of such offence being committed, or
d) Partially or fully ceases to make payment for no good reason, or
e) Defaults on payment of invoice or material invoiced amounts for two consecutive months within the meaning of Section 45k TKG if the default amounts to at least EUR 75.00, or
f) Becomes unable to make payment, issues an affidavit or insolvency proceedings regarding the Customer’s assets are opened or applied for, or
g) Fails to provide the required securities or provides only part thereof, or
h) Dies and its company is discontinued or if the Customer permanently discontinues its operations. If ESP’s good cause is founded in the fact that the Customer has violated material contractual obligations, ESP may only terminate the Agreement if the Customer has first received warning but such warning went unheeded or has been granted a period of grace in which to rectify such behaviour and has failed to do so within the period granted. However, no warnings or periods of grace have to be issued if they appear likely to be unsuccessful or if termination without notice appears to be justified in an exceptional situation to maintain the interests of both Parties.
17.4 In the event of ESP terminating the Agreement for good cause based on actions that fall within the Customer’s scope of control before the minimum contractual term having expired, the Customer shall pay compensation in the form of a fixed fee. The compensation shall amount to 75% of the total outstanding non-usage-based fee that would have been payable until the end of the regular contractual term. ESP may provide proof of, and assert, damages in excess of this amount. However, the Customer may provide proof that no or significantly less damage was incurred.
17.5 In the event of ESP terminating the Agreement on grounds that fall within the Customer’s scope of control before announcing that the services are ready for operation or before agreed modifications have been implemented, the Customer shall pay compensation for the costs of any work already completed. The Customer may provide proof that ESP has incurred no or less damage.
18 Defects and warranty
18.1 ESP shall retain the full title in all equipment, devices and materials supplied by ESP within the scope of the Agreement until full payment has been received for them. The risk shall be transferred to the Customer upon the delivery of the equipment, devices and materials to the Customer.
18.2 The following shall apply in the event of the Customer not being a natural person within the meaning of Section 310 Paragraph 1 BGB: The Customer shall inspect the items immediately upon delivery, if this is feasible within the scope of proper operations, perform a function test on them, if necessary, and report any defects found to ESP immediately. The Customer shall handle the item with the due care and diligence of a proper business person. The obligation to inspect the delivered items shall also apply to samples that have been supplied. Failure to report defects shall result in the exclusion of any form of liability for defects.
18.3 The properties of the item shall be deemed to have been approved if no notice of defect has been received by ESP within 14 days from delivery of the item. Hidden defects that could not be uncovered in the period stated above can only be claimed for if they have been reported within one year from the transfer of the item.
18.4 The Customer shall inspect the item immediately upon delivery for apparent defects and send a notification of any defects found to ESP within 14 days from delivery of the item. Hidden defects that could not be uncovered in the period stated above can only be claimed for if they have been reported within one year from the transfer of the item.
18.5 The above provisions shall not apply if and insofar as ESP has issued a guarantee of quality or has fraudulently concealed a defect.
18.6 In the event of the item being defective, ESP may choose at its discretion to repair the item twice or supply a replacement delivery / part. This shall not affect Section 635 Paragraph 3 BGB.
18.7 The Customer may only choose at its discretion to request subsequent fulfilment, a decrease in the agreed fee (reduction) or rescission of the Agreement (withdrawal) if ESP has failed twice to repair the item or has sent two defective replacement deliveries / parts. In the event of a contract for work and services, the Customer may further rectify the defect itself and request compensation for any costs incurred thereby. In the case stated in Section 439 Paragraph 3 and Section 635 Paragraph 3 BGB, the Customer may request the decrease in the agreed fee (reduction) or rescission of the Agreement (withdrawal) immediately, contrary to Sentence 1.
18.8 The assertion of compensation claims against ESP within the scope of liability for defects shall be excluded with the exception of liability for damage to life, limb and health, if the damages are caused by the slightly negligent violation of immaterial contractual obligations by ESP’s bodies or vicarious agents. The assertion of compensation claims instead of the provision of services shall also be excluded within the scope of liability for defects caused by the slightly negligent violation of contractual obligations by ESP’s bodies or vicarious agents.
18.9 Liability for defects shall be excluded subject to the following paragraph for deliveries of used items, if dealing with customers within the meaning of Section 310 Paragraph 1 BGB.
18.10 Liability for defects shall not be excluded if and insofar as a guarantee of quality or guarantee has been issued, a defect has been fraudulently concealed and if injury has been caused to life, limb and health.
18.11 In the event of liability being excluded or limited as stated above, this shall also apply to the personal liability of ESP’s employees and bodies as well as its agents and vicarious agents and their employees and bodies.
18.12 In the event of the Customer being a natural person within the meaning of Section 310 Paragraph 1 BGB, the claims for defects for the manufacture and delivery of new items shall expire by limitation after one year. In the event of the Customer selling the items delivered by ESP within the scope of its ordinary operations, its recourse arising from Section 478 BGB shall remain unaffected, contrary to the statutes of limitation stated in Sentence 1.
18.13 In the event of the Customer not being a natural person within the meaning of Section 310 Paragraph 1 BGB, claims for defects for the manufacture and delivery of new items shall expire by limitation after two years and after one year for deliveries of used items.
18.14 The statutory statutes of limitation shall apply in the event of liability on the grounds of malicious intent or gross negligence and in cases of a guarantee of quality or guarantee or a fraudulently concealed defect.
19 Assignment of hardware and software
19.1 Depending on the type of agreement / product and requirements, the Customer requires hardware for the use of ESP’s services which can usually be assigned for a fee, or leased in exceptional circumstances, or purchased from ESP or other retailers. ESP shall retain the title to any assigned hardware. ESP may replace this hardware at any time if this appears necessary for technical and/or operational reasons.
19.2 ESP may request a security deposit for the assignment of hardware. Such security deposit shall be payable once and always together with the next monthly invoice. The security deposit shall be returned without any interest at the end of the contractual relationship with the following monthly (final) invoice.
19.3 ESP reserves the right to update the software / firmware of the assigned hardware and/or hardware at any time without notice and free of charge for the Customer.
19.4 The Customer shall notify ESP immediately on the phone about all impairments of its rights to the title of the assigned hardware, such as by way of seizure, damage or loss and in writing within two days from the original phone call. In the event of the impairment falling within the Customer’s scope of control, ESP may terminate the Agreement for good cause and claim compensation for damages.
19.5 Upon termination or expiry of the Agreement, the Customer shall, at its own cost, return any hardware assigned, including the leads and other accessories provided to the Customer, to ESP immediately, but no later than 14 days from the date of termination or expiry. Failure to return the hardware shall entitle ESP to invoice the Customer for it, including the accessories stated above.
19.6 The Customer shall assume liability for all damages to, or loss of, the assigned hardware that fall within its own scope of control and pay compensation in the amount of the net replacement value. In the event of these devices being used for more than one year, 15% of the net replacement value per full contractual year shall be credited to the amount of compensation to the benefit of the Customer. The Customer may provide proof that ESP has incurred no or less damage.
19.7 In the event of ESP providing the Customer with access software, this shall be exclusively used on the Customer’s computer and not be modified. By using the software, the Customer shall automatically agree to the licensing terms and conditions of the software manufacturer.
19.8 In the event of the technical equipment, computer and software programs supplied by ESP in connection with the provision of services being protected by industrial property rights (such as trademark rights or copyright for software licenses), the resulting rights of exploitation and subsequent rights shall not be transferred to the Customer, unless explicitly agreed in writing. ESP or its contracting partners shall hold the sole ownership of industrial property rights of any kind.
19.9 The Customer shall not illegitimately publish industrial property rights which ESP has provided to a third party nor use them for its own purposes.
19.10 Rights of use that have been granted may not, and cannot, be assigned. However, ESP shall grant the Customer a non- exclusive and non-transferable right of use for computer / software programs for the purpose of using the services for the term of the Agreement. The Customer shall not make any copies of the software provided, in whole or part thereof, except one backup copy. The Customer shall categorically refrain from modifying or determining the source code of the software, in whole or part thereof. The Customer furthermore shall not process or edit the software in any other manner or implement the software in other software programs. The Customer shall delete any backup copies immediately upon termination or expiry of the Agreement.
19.11 In the event of ESP providing the Customer with written solution proposals and/or approaches for the implementation of the services to be provided by ESP within the scope of the offer, ESP shall retain the title to these written documents. ESP shall generally hold the exclusive copyright in these documents, unless explicitly and otherwise agreed. However, the Customer shall be granted a simple, non-exclusive and non-transferable right of use. The Customer shall not make any copies of the documents provided to the Customer, in whole or part thereof. The Customer shall categorically refrain from providing these documents to third parties without explicit prior consent from ESP.
20 Data protection
20.1 ESP may collect, process and use the data relating to the contractual relationship in accordance with the EU General Data Protection Regulation (GDPR) in its respective applicable version and to transfer this data to companies affiliated with ESP in accordance with Sections 15 et seqq. AktG.
20.2 To secure the operational processes and security requirements of ESP, personal data is collected, processed and used within the scope of the fulfilment of the order in accordance with the GDPR. This applies, in particular, to data and images of security components (such as ID cards, ID card management systems, time / access and video systems, etc.) and the respective related infrastructure.
20.3 The Customer shall authorise ESP process, store and analyse the data obtained within the scope of the business relationship in accordance with data protection law for the purpose of processing the agreements and/or complaints.
20.4 Unless explicitly agreed otherwise and in writing, the Customer’s information provided to ESP shall not be deemed to be confidential, with the exception of personal data. The Parties shall not disclose any information and documents marked, or discernible, as confidential or as business or operating secrets, even once the Agreement has been terminated or expired, unless one of the Parties is obliged by law to disclose it.
20.5 ESP shall undertake to comply with data protection laws, particularly the EU General Data Protection Regulation (GDPR), the German Telecommunication Act (Telekommunikationsgesetz – TKG) and the German Teleservices Act (Telemediengesetz – TMG) as well as telecommunications secrecy and ensure that all persons engaged by ESP with the fulfilment of this Agreement also comply with the relevant regulations.
20.6 Personal data of the Customer is only collected, stored, used or transferred to third parties engaged with the fulfilment of the Agreement if the data subject has given permission to do so or the GDPR, TKG, TMG or other legal provision require or permit such actions. ESP shall collect, store and use the Customer’s personal data exclusively within the scope of the contractual purpose. All permissions given can be withdrawn with future effect at any time.
20.7 ESP may further collect, store and use the phone number and postal address so as to provide the Customer with advise, to send advertising and to conduct market research for its own purposes, unless the Customer objects to such use in writing or electronically.
20.8 The Customer’s personal data is stored for direct advertising purposes and market research for as long as ESP has a greater legal interest in the processing of this data in accordance with the relevant legal provisions, but no longer than for a period of two years from the date of termination or expiry of the Agreement.
20.9 The Customer has the right to request information, correction, deletion, restriction of processing and data transferability from ESP in accordance with the relevant legal provisions, particularly Art. 15 to 20 GDPR.
20.10 The Customer may object to the processing of its data for the purpose of direct advertising and/or market research at an time. ESP may furthermore only engage in telephone advertising with explicit prior consent from the Customer.
20.11 The Customer may complain to the responsible supervisory authority if it is of the opinion that the processing of its personal data violates data protection regulations.
20.12 ESP may store and transfer connection data if this is required for ESP invoicing its services to other companies.
20.13 ESP reserves the right to engage third parties (such as law firms or debt collection agencies) with the collection of outstanding receivables. During this process, the invoicing date required for such collection is disclosed in accordance with the legal provisions.
20.14 Personal Customer data may have to be collected, stored and processed, in particular, for
a) Providing, using and invoicing ESP services,
b) Processing fault reports within the scope of support services or for uncovering and preventing theft of services (Section 9 of the German Telecommunication Data Protection Regulation; Telekommunikations-Datenschutzverordnung).
20.15 The connection data stored for invoicing purposes are deleted in accordance with the relevant legal provisions, unless the Customer explicitly requests a longer storage period.
20.16 After the deletion of the data required for invoicing purposes in accordance with legal requirements or the Customer’s request, the Customer shall henceforth carry the burden of proof that this data is accurate. This means that ESP is no longer obliged to prove the accuracy of the deleted data, but the Customer instead has to prove the inaccuracy of the deleted data.
20.17 The Customer’s partial network operator’s (Section 4 paragraph 1) compliance with data protection regulations falls outside ESP’s scope of control. ESP shall be held harmless of any form of liability in this respect.
In the event of ESP and the Customer engaging in a dispute about ESP having fulfilled an obligation for the Customer relating to the terms and conditions or the performance of the agreements for the provision of the networks or services and relating to Sections 43a, 43b, 45 to 46 TKG or the legal ordinances issued on the basis of these provisions and Section 84 TKG, the Customer may apply to commence arbitration proceedings before the consumer arbitration office of the Federal Network Agency.
Applications for arbitration proceedings can be sent to: “Bundesnetzagentur, Verbraucherschlichtungsstelle (Referat 216), Postfach 8001, 53105 Bonn, Germany” or faxed to: (+49 (0)30 22 480 518 or submitted online at: http://www.bundesnetzagentur.de. The Federal Network Agency regulates the further details regarding the proceedings in an arbitration order which it publishes. Participation shall be voluntary for ESP.
22 Place of fulfilment / place of jurisdiction / governing law
The place of fulfilment for all deliveries and services provided by ESP shall be the forwarding address / place of use specified by the Customer and/or the agreed location of the service provision. The place of jurisdiction for all disputes arising from or in connection with this Agreement shall be Saarbrücken, Germany, unless otherwise stipulated by law. This Agreement shall be exclusively governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall be excluded.
23 Severability clause
Should individual provisions of these General Terms and Conditions, in whole or part thereof, violate mandatory provisions or be otherwise ineffective or void, this shall not affect the effectiveness of the remaining provisions.