Arana AI
6.1
The provider is always liable to the customer
for damage caused intentionally or through gross negligence by him or his legal representatives or vicarious agents,
according to the Product Liability Act and
for damage resulting from injury to life, body or health for which the provider, his legal representatives or vicarious agents are responsible.
6.2
The provider is not liable for minor negligence, except insofar as he has violated an essential contractual obligation,
the fulfillment of which makes the proper execution of the contract possible in the first place or
the violation of which endangers the achievement of the purpose of the contract and on whose compliance the customer can regularly rely.
In the case of property damage and financial loss, this liability is limited to the damage typical and foreseeable for the contract.
This also applies to lost profits and missed savings. Liability for other
remote consequential damage is excluded.
For an individual case of damage, liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year, but not to less than € 50,000. Clause 4.2 applies accordingly to the statute of limitations. The contracting parties can agree on further liability in writing when concluding the contract, usually against separate remuneration. An individually agreed liability amount takes priority. Liability in accordance with Clause 6.1 remains unaffected by this paragraph. In addition and with priority, the provider's liability for slight negligence arising from the respective contract and its implementation for damages and reimbursement of expenses, regardless of the legal basis, is limited in total to the percentage of the remuneration agreed upon when the contract was concluded. Liability in accordance with Clause 6.1 b) remains unaffected by this paragraph.
6.3
The provider is only liable for damages under a guarantee declaration if this was expressly agreed in the guarantee. In the case of slight negligence, this liability is subject to the restrictions in accordance with section 6.2.
6.4
Provider is only liable for the effort required for restoration if the customer has properly backed up the data and made provision for failure. In the case of slight negligence on the part of the provider, this liability only applies if the customer has carried out data backup and failure prevention measures appropriate to the type of data and components prior to the incident. This does not apply if this is agreed as a service provided by the provider.
6.5
Sections 6.1 to 6.4 apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against the provider. Sections 3.3 and 3.4 remain unaffected.
6. General liability of the provider
5.1
The provider is only liable for infringements of third-party rights through its service if the service is used in accordance with the contract and in particular in the contractually agreed, otherwise intended, environment.
The provider is only liable for infringements of third-party rights within the European Union and the
European Economic Area and at the place where the service is used in accordance with the contract. Clause 4.1 sentence 1
applies accordingly.
5.2
If a third party claims to the customer that a service provided by the provider infringes their rights,
the customer shall notify the provider immediately. The provider and, if applicable, its suppliers are entitled, but not obliged, to defend the asserted claims at their own expense, to the extent permissible.
The customer is not entitled to acknowledge third-party claims before giving the provider a reasonable opportunity to defend the rights of third parties in another way.
5.3
If a service provided by the provider violates the rights of third parties, the provider will, at its own discretion and at its own expense,
provide the customer with the right to use the service or
make the service free of legal violations or
take back the service and reimburse the customer for the remuneration paid for it (less reasonable compensation for use) if the provider cannot achieve any other remedy with reasonable effort.
The interests of the customer will be taken into account appropriately.
5.4
The customer's claims for legal defects expire in accordance with Section 4.2. Section 6 applies in addition to claims for damages and reimbursement of expenses by the customer; Section 4.3 applies accordingly to additional expenses incurred by the provider.
5. Legal Defects
4.1
The provider guarantees the contractually owed quality of the services. If the provider's services deviate only
insignificantly from the contractual quality, no claims for material defects exist.
Claims for defects also do not exist in the case of excessive or improper use, natural
wear and tear, failure of components of the system environment. The same applies to software errors that cannot be reproduced or
otherwise proven by the customer. This also applies to damage due to
particular external influences that are not assumed under the contract. Claims for defects also do not exist in the case of subsequent modifications or repairs by the customer or third parties,
unless this does not make the analysis and elimination of a material defect more difficult.
Clause 6 applies in addition to claims for damages and reimbursement of expenses.
4.2
The limitation period for claims for material defects is one year from the start of the statutory limitation period. The statutory time limits for recourse pursuant to Section 478 of the German Civil Code remain unaffected. The same applies if the law stipulates longer time limits pursuant to Section 438 Paragraph 1 No. 2 or Section 634a Paragraph 1 No. 2 of the German Civil Code, in the event of an intentional or grossly negligent breach of duty by the provider, in the event of fraudulent concealment of a defect, in cases of injury to life, body or health, and for claims under the Product Liability Act. The processing of a customer's notification of a defect by the provider only leads to the suspension of the limitation period if the statutory requirements for this are met. This does not result in the limitation period starting again. Subsequent performance (new delivery or repair) can only influence the limitation period for the defect that triggered the subsequent performance.
4.3
Recourse claims in contracts for digital products in accordance with Section 327u of the German Civil Code remain unaffected by clauses 4.1 and 4.2.
If a purchaser asserts a claim against the customer that may lead to a recourse claim, the customer will immediately inform the provider of the asserted claim and
the additional information necessary and useful for its assessment. The customer
will give the provider the opportunity to satisfy the claim asserted by the customer's purchaser, unless this is unreasonable for the customer. The customer and the provider will coordinate and work together with the aim of satisfying a legitimate claim of the customer's purchaser with as little effort and as little cost as possible.
4.4
The provider can demand compensation for its expenses if
it takes action based on a report without there being a defect, unless the customer could not reasonably have determined that there was no defect, or a reported fault cannot be reproduced or otherwise proven to be a defect by the customer, or additional expenses arise due to the customer not properly fulfilling its obligations (see also sections 2.2, 2.3, 2.4 and 5.2).
4. Material defects and reimbursement of expenses
3.1
If a cause for which the provider is not responsible, including strikes or lockouts, affects the
adherence to deadlines (“disruption”), the deadlines will be postponed by the duration of the disruption,
if necessary including an appropriate restart phase. A contracting party must immediately inform the other
contracting party of the cause of a disruption that has occurred in his area and the duration of the
postponement.
3.2
If the expenditure increases due to a disruption, the provider can also demand compensation for the additional expenditure,
unless the customer is not responsible for the disruption and its cause lies outside his
area of responsibility.
3.3
If the customer can withdraw from the contract due to improper performance by the provider and/or
demand compensation instead of performance or claims such, the customer will, at the request of the provider, declare in writing within a reasonable period of time whether he is asserting these rights or
wants the service to continue to be provided. In the event of withdrawal, the customer must reimburse the provider for the value of previously existing usage options; the same applies to deterioration due to intended use. If the provider defaults on providing the service, the customer's compensation for damages and expenses due to the delay is limited to 0.5% of the price for the part of the contractual service that cannot be used due to the delay for each completed week of the delay. The liability for delay is limited to a maximum of 5% of the remuneration for all contractual services affected by the delay; in the case of continuing obligations, this is based on the remuneration for the services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon when the contract was concluded applies. This does not apply if the delay is due to gross negligence or willful intent on the part of the provider.
3.4
If the service is delayed, the customer has a right of withdrawal within the framework of the statutory provisions only if the delay is the responsibility of the provider. If the customer justifiably claims damages or reimbursement of expenses instead of the service due to the delay, he is entitled to demand 1% of the price for the part of the contractual service that cannot be used due to the delay for each completed week of the delay, but a maximum of 10% of this price in total; in the case of continuing obligations, based on the remuneration for the services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon conclusion of the contract applies.
3. Disruptions in the provision of services
2.1
The customer and the provider each name a responsible contact person. Communication between
the customer and the provider takes place, unless otherwise agreed, via these contacts.
The contact persons must make all decisions related to the execution of the contract
immediately. The decisions must be documented in a binding manner.
2.2
The customer is obliged to support the provider as far as necessary and to create all the conditions required for the proper execution of the order in his sphere of operations. To this end, he will in particular provide the necessary information and, if possible, enable remote access to the customer system. If remote access is not possible for security reasons or other reasons, the deadlines affected will be extended accordingly; the contracting parties will agree on an appropriate arrangement for further effects. The customer also ensures that expert personnel are available to support the provider.
If the contract stipulates that services can be provided on-site at the customer's premises, the customer will provide sufficient workstations and work equipment free of charge at the request of the provider.
2.3
Unless otherwise agreed, the customer will ensure proper data backup and failure prevention for data and components (such as hardware, software) that is appropriate to their type and importance.
2.4
The customer must report defects immediately in writing in a comprehensible and detailed form, stating all information that is useful for defect detection and analysis. In particular, the work steps that led to the occurrence of the defect, the form of appearance and the effects of the defect must be stated. Unless otherwise agreed, the provider's corresponding forms and procedures will be used for this purpose.
2.5
The customer will support the provider appropriately upon request in examining and asserting claims against other parties in connection with the provision of services.
This applies in particular to the provider's recourse claims against sub-suppliers.
2.6
The contracting parties are obliged to maintain confidentiality regarding trade secrets and other information designated as confidential (e.g. in records, documents, data sets) that become known in connection with the execution of the contract and not to use or disclose them beyond the purpose of the contract without the written consent of the other contracting party.
The receiving contracting party is obliged to take appropriate confidentiality measures for trade secrets and information designated as confidential. The contracting parties are not entitled to obtain the other contracting party's trade secrets by observing, examining, dismantling or testing the subject matter of the contract. The same applies to other information or objects received during the execution of the contract.
The passing on of business secrets and other information designated as confidential to persons who are not involved in the conclusion, implementation or processing of the contract may only take place with the written consent of the other contracting party. Unless otherwise agreed, the obligation to maintain confidentiality for other information designated as confidential ends after five years from the time the respective information becomes known, but in the case of continuing obligations not before their termination. Business secrets must be kept secret for an unlimited period of time. The contracting parties will also impose these obligations on their employees and any third parties they may employ.
2.7
The contracting parties are aware that electronic and unencrypted communication (e.g. by email) is subject to security risks.
With this type of communication, they will therefore not assert any claims based on the lack of encryption, unless encryption has been agreed beforehand.
2. Cooperation, duty to cooperate, confidentiality
1.1
Unless otherwise agreed, the remuneration is calculated according to the costs incurred at the provider's generally applicable prices at the time the contract is concluded. Remuneration is generally net prices plus statutory sales tax.
The provider can invoice monthly. If services are remunerated according to costs, the provider documents the type and duration of the activities and sends this documentation with the invoice., service protection, deadlines
1.2
All invoices are generally to be paid free of charge without deduction within 14 calendar days of receipt.
1.3
The customer can only offset or withhold payments due to defects if he is actually entitled to payment claims due to material or legal defects in the service. For other claims for defects, the customer can only withhold payments to a proportionate extent taking the defect into account. Clause 4.1 applies accordingly. The customer has no right of retention if his claim for defects has expired. Furthermore, the customer can only offset or exercise retention with undisputed or legally established claims.
1.4
The provider reserves ownership and rights to the services until the remuneration owed has been paid in full; justified retentions for defects in accordance with clause 1.3, sentence 2 will be taken into account. The provider also reserves ownership until all of its claims from the business relationship with the customer have been met. The provider is entitled to prohibit the customer from further using the services for the duration of a delay in payment. The provider can only assert this right for a reasonable period of time, usually for a maximum of 6 months. This does not constitute withdrawal from the contract. Section 449, paragraph 2 of the German Civil Code remains unaffected. If the customer or their purchaser returns the services, acceptance of the services does not constitute withdrawal by the provider, unless they have expressly declared their withdrawal. The same applies to the seizure of the reserved goods or rights to the reserved goods by the provider.
The customer may neither pledge nor assign as security items subject to title or legal reservation. The customer is only permitted to resell as a reseller in the ordinary course of business on the condition that the customer has effectively assigned the provider's claims against its customers in connection with the resale and that the customer transfers ownership to its customer subject to payment. By concluding this contract, the customer assigns its future claims in connection with such sales against its customers to the provider as security, who hereby accepts this assignment.
If the value of the provider's security rights exceeds the amount of the secured claims by more than 20%, the provider will release a corresponding share of the security rights at the customer's request.
1.5
The customer is obliged to impose the contractually agreed restrictions on the recipient in the event of a permissible transfer of rights of use to deliveries and services.
1.6
If the customer does not pay a due claim in full or in part by the contractual payment date,
the provider can revoke agreed payment terms for all claims. The provider is also entitled to only provide further services against advance payment or against security through a performance guarantee from a credit institution or credit insurer approved in the European Union. The advance payment must cover the respective billing period or - in the case of one-off services - the remuneration for them.
1.7
If the customer is financially unable to fulfill his obligations to the provider, the provider can terminate existing exchange contracts with the customer by withdrawing from the contract and continuing obligations by terminating them without notice, even if the customer files for insolvency. Section 321 of the German Civil Code and Section 112 of the German Insolvency Code remain unaffected. The customer will inform the provider in writing at an early stage about any impending insolvency.
1.8
Fixed delivery dates should only be agreed expressly in documented form.
The agreement of a fixed delivery date is subject to the condition that the provider receives the services from its respective suppliers on time and in accordance with the contract.
1. Remuneration, payment, performance protection, deadlines
General Terms and Conditions of Bitkom (AV Bitkom)
Letzte Aktualisierung: 12.12.2024
7. Data Protection
The customer will conclude agreements with the provider that are necessary under data protection law for the handling of personal data.
8. Miscellaneous
8.1
The customer is responsible for complying with import and export regulations applicable to deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer is responsible for any customs duties, fees and other charges. The customer is responsible for handling legal or official procedures in connection with cross-border deliveries or services, unless otherwise expressly agreed.
8.2
German law applies. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
8.3
The provider provides its services on the basis of its general terms and conditions (GTC). The customer's GTC do not apply, even if the provider has not expressly objected to them.
Acceptance of the services by the customer is deemed to constitute acceptance of the provider's GTC and waiver of the customer's GTC.
8.4
Other conditions are only binding if the provider has acknowledged them in writing; the general terms and conditions of the provider then apply in addition.
8.5
Changes and additions to this contract should only be agreed in writing. If written form has been agreed (e.g. for terminations, withdrawals), text form is not sufficient.
8.6
The place of jurisdiction for a merchant, a legal entity under public law or a special fund under public law is the registered office of the provider. The provider can also sue the customer at the customer's registered office.