General Terms and Conditions of DataCo GmbH

DataCo GmbH

Telefon: +49 89 4120 7033
Email: info@dataguard.de
Webseite: www.dataguard.de

Tax No.: 143/127/91162
Value added tax ID: DE315880213
Munich Local Court: HRB 235942

Represented by the Managing Directors Dr. Markus Fisseler, Thomas Regier, Kivanc Semen
Headquarters: Dachauer Str. 65, 80335 Munich, Germany

Date: 20th March 2019

1. Contractual Partner

The contractual partners are DataCo GmbH (hereinafter referred to as DataCo), represented by the managing directors Dr. Markus Fisseler, Thomas Regier and Kivanc Semen, Dachauer Straße 65, 80335 Munich (Local Court Munich HRB 235942; VAT ID: DE315880213) and the customer who is not a consumer within the scope of § 13 BGB (German Civil Code).

2. Subject Matter of the Contract

2.1 The subject matter of the contract results from these General Terms and Conditions as well as from the regulations made in the service descriptions and price lists.

2.2 Deviating regulations require a written confirmation. The granting of a guarantee also requires written confirmation by DataCo in order to be effective.

2.3 General terms and conditions of the customer shall not become part of the contract, even if requests for offers, orders, declarations of acceptance etc. are included and are not opposed.

3. Contracts and Offers

3.1 Subject to a separate provision, the contract shall come into effect upon receipt of the order confirmation by DataCo, no later however, than when DataCo commences with the execution of the order. This shall also be the case if DataCo begins to execute the order with the knowledge of the customer before an agreement has been reached on all points of an order, without the customer having immediately objected to this.

3.2 Performance dates or performance periods specified in the contracts shall only be binding if they have been determined to be binding by DataCo in writing.

3.3 All offers made by DataCo are subject to change without notice, unless expressly stated otherwise in the offer.

4. Document Dispatch and Transfer of Risk

4.1 In regard to the delivery or transfer of documents relevant to the provision of DataCo services, the responsibility will be transferred to the customer as soon as DataCo has delivered the documents to the carrier or telecommunications service provider.

4.2 The customer shall, upon receiving the documents, immediately examine the quality of the documents, notify the delivery person of any form of damage to the documents, and if damage is present, secure the evidence as such and inform DataCo immediately by telephone and in writing.

5. DataCo Services

5.1 DataCo provides consulting, auditing and other services in the areas of data protection, information technologies and security, including but not limited to the appointment of the customer’s external Data Protection Officer. The services are based on the current state of the art and the relevant legislation.

5.2 DataCo reserves the right to extend, change or improve the services agreed upon between the parties and to adjust the scope of the services (hereinafter referred to as “Service Adjustment”), provided that the fees (excluding taxes) agreed upon between the parties do not exceed 10 %. DataCo shall be entitled to adjust services, in particular if these adjustments are based on circumstances which DataCo cannot influence (e.g. changes in the area of responsibility of third parties, changes in statutory regulations or changes in market conditions). DataCo shall make its decisions at its own discretion, but with due regard to the legitimate interests of the customer and shall attempt to reach an agreement with the customer when possible. DataCo will always inform the customer immediately and in due time about the necessary adjustments. The customer has the right to object to the changes. Should the customer exercise this right, the parties shall enter into negotiations regarding an adjustment of the fees within ten (10) working days (working days: Monday to Friday). If the parties do not agree on a fee adjustment within twenty (20) working days after the start of the negotiations, DataCo may terminate the agreement extraordinarily with fourteen (14) calendar days’ notice after the day on which one of the parties declares the failure of the negotiations. The right of termination shall be declared within seven (7) days after the failure of the negotiations. In order to comply with the notice period, it is sufficient if a copy of the notice of termination is received in advance in electronic form or by fax.

5.3 The services of DataCo are provided exclusively as services to support the customer in areas that are within the customer’s sole responsibility. DataCo does not assume any responsibility for a specific result or success in connection with the provision of the services.

5.4 DataCo is entitled to subcontract the services to third parties (subcontractors). DataCo is liable for the provision of services by subcontractors as if they were acting on DataCo’s own behalf.

5.5 In the event of contradictions in the contract, the following order shall apply consecutively:

– the contract with the description of services/price list
– these General Terms and Conditions in the version valid on the day the order was placed
– the BGB, in the version valid at the time of the conclusion of the contract.

6. Obligations and Duties of the Customer

6.1 The customer shall ensure that all necessary provision and cooperation services are provided on time, to the extent required and free of charge for DataCo.

6.2 The customer shall provide DataCo’s employees with all necessary support during their work at the customer’s premises. This support includes, among other things, that the customer:

– ensures that a qualified employee is available to assist at the place of performance

– ensures that the employees employed by DataCo are granted free access to the respective computer and the software at the agreed time

– ensures for the benefit of DataCo’s employees that its provisions comply with health and safety regulations

– provides DataCo employees with the information necessary for their tasks/activities in a timely manner

– ensures that DataCo’s employees are provided with sufficient and appropriate working space, including work equipment, insofar as the employees must be at the customer’s premises in order to fulfil the contract.

6.3 Portable storage devices provided by the customer must be free of content and technical defects, particularly malware (e.g. “viruses”). If this is not the case, the customer shall compensate DataCo for all damages arising from the use of these storage devices and indemnify DataCo against all claims made by third parties.

6.4 If the customer does not provide the required cooperation, does not do so in time or in the agreed manner, the consequences arising therefrom (e.g. delays, additional expenses) shall be borne by the customer.

6.5 DataCo and its mandates shall be indemnified against all claims of third parties which are based on an unlawful use of the copyrighted services by the customer or which are made with the customer’s approval or which result from data protection or other legal disputes associated with the use of the service. The customer shall inform DataCo immediately in writing if third parties assert the infringement of their rights against them. The customer shall not acknowledge the infringement of rights asserted by third parties and shall either leave any dispute to DataCo or conduct it only in agreement with DataCo.

6.6 The customer shall notify DataCo  in writing of any defects with a comprehensible description of the defects and, as far as possible, illustrate the defects by handing over written records, hard copies or other documents.

6.7 By virtue of an independent guarantee, the customer hereby guarantees to dispose of all rights necessary for the execution of the contractual agreement to the full extent and to transfer them to DataCo or grant them to DataCo to the extent required, without infringing the rights of third parties. In particular, the customer guarantees that they possess all the necessary intellectual property rights (e.g. copyrights, trademark rights) and industrial property rights to the content made available by them and that they are authorized to publish and pass them on to third parties for the purpose of publication to the extent necessary for the implementation of the contractual agreement. The customer bears the exclusive responsibility for the correctness of their content and is solely liable for possible violations. The customer guarantees that the content provided to and used by DataCo as well as links used on other pages do not violate applicable law. The customer guarantees that they will not transmit any content whose advertising or distribution violates legal prohibitions (e.g. criminal and administrative offences law, narcotics law, pharmaceutical law, weapons law), morality, or the rights of third parties (e.g. personal information, name, copyright, data protection rights). In addition, the customer shall not transmit any content that glorifies war, is obviously capable of morally endangering children or adolescents, represents people who appear to be dying or have been subjected to severe physical or mental suffering in a manner that violates human dignity especially if they reflect actual events, unless there is a predominant legitimate interest that requires this form of representation in particular. In addition, the customer shall not publish material that violates human dignity or material that is not allowed to be made public and shall refrain from making any entries that contain viruses, malware or similar programs that are capable of damaging, secretly intercepting or deleting data or systems.

6.8 If the customer violates 6.6, the customer shall immediately redress the violation, reimburse DataCo for any loss incurred as a result of the violation and indemnify DataCo against all claims of third parties asserted as a result of the violation and reimburse the incurred costs of legal defence in full. In the event of a legal dispute arising from the customer’s violation of DataCo, the customer shall join the dispute on the part of DataCo GmbH at DataCo’s request. In the event of a breach, DataCo shall be entitled to suspend the performance of the contractually agreed services with immediate effect and to terminate the contract with the customer without notice.

7. Right of Use

7.1 Unless otherwise agreed, the customer shall be granted the exclusive, transferable right, although subject to DataCo’s own use for its own purposes and future customer projects, to use the respective services in all known ways with respect to the documents produced from the services provided by DataCo to the customer, subject to the condition precedent of full payment of the remuneration agreed upon between the parties, unlimited in time, space and content. This particularly includes the right of the customer to process the respective document at its own discretion or to otherwise redesign it and to exploit the performance results created thereby in the same manner as the original version of the results and services. Notwithstanding the foregoing, the customer’s right to use any seals or certificates issued shall terminate upon termination of the contract.

7.2 In the event of premature termination of the contract, paragraph 7.1 shall apply mutatis mutandis to the part of the services that has already been completed.

7.3 Copyright notices, serial numbers and other features serving to identify the program shall under no circumstances be removed or changed. The same applies to the suppression of the screen display of corresponding features.

8. Reservation of Ownership

DataCo shall retain ownership of the documents and rights to be granted until full payment of the remuneration owed. Prior to this, the rights are always only provisional and may be freely revoked by DataCo.

9. Remuneration and Maturity

9.1 Remuneration and additional costs are net prices excluding statutory taxes and levies.

9.2 Monthly prices are to be paid for the remainder of the month on a pro rata basis with the agreed commencement of service provision. Thereafter these prices are to be paid monthly in advance. If the price is to be calculated for parts of a calendar month, it shall be calculated pro rata for each half calendar month commenced. A full monthly price shall be charged if the customer terminates the contractual relationship before the end of one month; this shall not apply in the event of termination for good cause.

9.3 If the remuneration is calculated on the basis of expenditure, this shall be based on the prices agreed at the time of the conclusion of the contract, in particular in the DataCo service description/price list, unless otherwise agreed. In this case, DataCo shall document the type and duration of the activities and attach them to the invoice.

9.4 In addition to the remuneration, DataCo shall charge the customer for travel expenses that are incurred monthly as an additional cost. Subject to any other contractual agreement, travel costs and expenses (travel costs including parking costs, accommodation costs, additional board and lodging, incidental travel expenses, etc.) shall be passed on by means of customary travel expense accounting. Rental vehicles are rented at customary prices. Trips carried out with a company car will be charged at 0.35 € / km. If damage is caused, but unintentionally and not due to gross negligence, damage costs will be charged to the customer. If customer projects require flights or hotel accommodation, arrangements will be agreed in advance with the customer. Up to a flight duration of four hours, the booking will be made in economy class – anything longer than four hours will be booked in business class. Rail journeys are to be invoiced at the flex price for the second class carriage of Deutsche Bahn. Travel times will be charged at the agreed hourly rate. If the working time or travel time is outside normal working hours, the following surcharges shall be levied on the remuneration per working hour: a) 50% on working days (Mondays to Fridays) from 0.00 to 6.00 and from 20.00 to 0.00 b) 100% on Saturdays, Sundays and public holidays.  

9.5 The invoice amount is to be paid into the account specified in the invoice. It must be credited, at the latest, on the tenth day after receipt of the invoice. If a SEPA Direct Debit Mandate is issued by the Customer, DataCo shall not debit the agreed account with the invoice amount before the seventh day after the invoice and the SEPA pre-notification have been received.

9.6 The customer shall reimburse DataCo for any costs incurred for any direct debit not redeemed or returned to DataCo to the extent that the customer is responsible for the event resulting in the costs.

9.7 The customer is only entitled to a right of retention if their counterclaim has been legally established or is undisputed. The customer shall only be entitled to assert a right of retention on the basis of counterclaims arising from this contractual relationship.

9.8 When payments are past due, DataCo has the right to charge interest in the amount of 9% above the base rate. In addition, DataCo shall charge a lump sum of 40 € for the expenses incurred, whereby the customer reserves the right to demonstrate lesser damage. Notwithstanding the foregoing, DataCo shall be entitled to assert higher damages caused by default as well as other rights.

10. Complaints

Complaints regarding the amount of DataCo’s prices must be made to DataCo immediately after receipt of the invoice. Complaints must be received by DataCo within eight weeks of receipt of the invoice. Failure to make complaints in due time shall be regarded as acceptance; DataCo shall make special references in the invoices to the consequences of failure to make complaints in due time. Legal claims of the customer in the event of complaints after expiry of the deadline shall remain unaffected.

11. Changes to the General Terms and Conditions, Service Descriptions and Prices

DataCo is entitled to amend the General Terms and Conditions or the respective service descriptions with a reasonable period of notice. The customer shall be notified of such changes in writing. If changes are made to the customer’s disadvantage, the customer shall have a right of objection at the time the change takes effect. DataCo shall inform the customer of this right of objection in the notification of change as well as that the change will become effective if the customer does not make use of the right of objection within the stipulated period.

12. Warranty

12.1 Kommt der Kunde für zwei aufeinander folgende Monate mit der Bezahlung der Preise bzw. eines nicht unerheblichen Teils der Preise in Verzug, so kann die DataCo das Vertragsverhältnis ohne Einhaltung einer Frist kündigen.

12.2 Die Geltendmachung weiterer Ansprüche wegen Zahlungsverzugs bleibt der DataCo vorbehalten.

13. Gewährleistung

13.1 DataCo shall provide the contractual services in such a way that they correspond to the agreed characteristics. Should there be defects, the customer shall be obliged to immediately notify DataCo in writing with a precise description of the problem and the information required for the elimination of the defect. § 377 HGB shall be applied accordingly. DataCo does not assume any guarantees, not even with regard to certain characteristics or properties.

13.2 DataCo pays particular attention to the utmost care and accuracy at all times when providing its services, particularly in the area of data protection analysis. However, DataCo cannot always comprehensively assess the quality of the data and information available to the analyses. Therefore, DataCo does not guarantee the representation and completeness of the results provided as they are based on certain assumptions, specific estimates and individual conclusions.

13.3 In the event of substantial defects demonstrated by the customer, DataCo shall provide subsequent services in such a way that DataCo shall, at its own discretion and within a reasonable period of time, provide the customer with a new defect-free service or otherwise, remedy the defect. DataCo shall be entitled to at least two attempts at subsequent rectification. Unless this would be unreasonable in the respective individual case (e.g. in the case of particular urgency), the customer shall not be entitled to claim compensation. In the event of the final failure of subsequent improvement, the customer may reduce the purchase price or withdraw from the contract and assert other rights granted to them in accordance with these General Terms and Conditions.

13.4 DataCo shall only bear the expenses necessary for subsequent services, in particular transport, travel, labour and material costs, if it is determined thereafter that a defect actually exists.

13.5 The customer shall not have any rights other than those expressly stated in these General Terms and Conditions, unless otherwise contractually agreed in individual cases.

14. Confidentiality

14.1  The contracting parties shall be obliged to maintain confidentiality with respect to business and trade secrets as well as information designated as confidential which becomes known in connection with the execution of the contract. The contracting parties shall also impose these obligations on their employees and any third parties employed.

14.2 DataCo is under no obligation to maintain secrecy if the information or data is generally known or becomes known through no fault of DataCo, if DataCo has independently compiled the information requiring confidentiality without using the customer’s data, or if the law or any authority requires disclosure on the basis of mandatory statutory provisions.

14.3 DataCo shall be entitled to disclose confidential information to subcontractors if they have been legally obligated to maintain confidentiality.

15. Force Majeure

If DataCo is unable to render the service due to force majeure, in particular due to raw materials, shortage of energy and labour, labour disputes, serious transport disruptions, operational disruptions through no fault of DataCo’s own or unforeseeable, official measures not attributable to DataCo, pandemics or other events for which DataCo is not responsible, DataCo shall not be obliged to render the service as long as the impediment to performance persists and DataCo has informed the customer immediately of this circumstance. In the event that the impediment persists for more than four months, DataCo shall have the right to withdraw from the contract if the performance of the contract is no longer of interest to DataCo as a result of the impediment and DataCo has not assumed the procurement or manufacturing risk. The customer shall be informed at his request after the expiry of the period whether DataCo is withdrawing from the contract or fulfilling its obligations within a reasonable period of time.

16. Limitation of the Liability of DataCo and its Subcontractors

16.1  DataCo is liable without limitation

a) for willful intent and gross negligence

b) for injury to life, limb or health

c)  according to the regulations of the Product Liability Act.

16.2 DataCo shall only be liable for minor negligence, except in the case of injury to life, limb or health, if essential contractual obligations (cardinal obligations) are breached. Cardinal obligations are obligations that must be fulfilled in order for the contract to be properly performed as is and on the observance of which the customer may regularly rely. In this case, liability shall be limited to typical and foreseeable damages, up to a maximum of ten times the remuneration agreed for the relevant year of the infringement. Liability for indirect and unforeseen damages, loss of production and use, loss of profit, loss of savings and financial loss due to claims by third parties shall be excluded in the event of minor negligence.

16.3 Any further liability is excluded unless otherwise agreed in writing.

16.4 The above limitation of liability also applies to the personal liability of the employees, representatives and executive bodies of DataCo, in particular the data protection officers employed by DataCo (contract in favour of third parties).

16.5 Notwithstanding any shorter statutory periods, any contractual or non-contractual claims against the contractors based on a defect must be asserted within one year of its occurrence.

17. References

17.1  If the customer allows DataCo to use them as a reference, DataCo shall be entitled to use the customer as a reference by naming the company name, displaying the company logo, naming the contact person and describing the services provided by their company. The use of the customer as a reference includes the display of such a reference on all websites, blogs and social media channels, which DataCo can control in terms of content. The reference will also be allowed for the use of press releases, print advertisements and internal company documents, for decoration purposes in company rooms and at trade fairs, conferences, as well as for tenders and presentations. Other uses, such as the use of a testimonial by the customer or the detailed description of services as a so-called “Customer Success Story”, will require a separate agreement and prior approval by the customer.

17.2 The above provision on reference shall also apply for a period of five years after termination of the contract.

18. Other Terms and Conditions

18.1  The contract concluded between DataCo and the customer and its execution shall be governed solely by the law of the Federal Republic of Germany to the exclusion of international uniform law including the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (the so-called UN Sales Convention).

18.2 The place of jurisdiction for all legal disputes arising from the contract between DataCo and the customer shall be the registered office of DataCo (Munich, Germany), unless a different exclusive place of jurisdiction exists.

18.3 The place of jurisdiction for all legal disputes arising from the contract between DataCo and the customer shall be the registered office of DataCo (Munich, Germany), unless a different exclusive place of jurisdiction exists.

18.4 If one or more provisions of the contract between DataCo and the customer is or becomes invalid or unenforceable in whole or in part, the validity of the remaining provisions of the contract shall not be affected thereby. In place of the invalid or unenforceable provision(s), the parties to the contract shall agree on a provision which comes closest in law and in fact to the economic purpose of the invalid or unenforceable provision. If a loophole arises from the contract which cannot be closed by interpreting the remaining provisions, the provision agreed between the parties to the contract which comes closest to the economic interests of the parties to the contract, provided that this point had been considered, shall be used to close the loophole.

DISCLAIMER: The translation of this document into languages other than German are intended solely as a convenience to the non-German-reading recipient of this document and is not legally binding. We have attempted to provide an accurate translation of the original German material, but due to the nuances in translating to a foreign language, slight differences may exist. In case of a discrepancy, the original German version of this document will prevail.

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