§ 1 Subject matter of the contract

MD Software & Design (hereinafter: "Provider") supplies hardware and software and provides all services in the IT and telecommunications sector. All services of the Provider are subject to these General Terms and Conditions and - product-, project- and service-related - the respective additional terms and conditions.

§ 2 Scope of services

1. The scope of the Provider's services is determined by the following regulations as well as the products, services and services specifically selected by the Customer at the time of ordering, together with the respective description.
2. In the case of Internet-based services, the Provider undertakes to provide the service or service in accordance with the agreed SLA's. The provider points out that due to limited line capacities and transmission speeds, trouble-free access to the Internet may not be guaranteed. Therefore, the provider does not assume any obligation to establish a connection to the Internet at any time or to maintain a certain data transmission speed at any time. Furthermore, the provider is entitled to carry out maintenance work on the maintenance windows defined in the respective SLA. This period of time, during which access may be impaired, is generally excluded from the Provider's obligation to perform.
3. In so far as the Provider installs technical equipment and/or other technical facilities for the Customer and provides them for rent, these remain the property of the Provider. The Provider reserves the right to renew the hardware and software provided at any time. After the end of the contract or after the provision of corresponding new hardware, the customer must send the devices to the provider at his own expense. These regulations do not apply to the technical equipment purchased by the customer from the provider. These remain however up to the complete payment in the property of the offerer.
4. In so far as the Provider provides the Customer with software, it serves only for use in unchanged form on the number of computers and/or users specified in the Provider's service description. By using the software, the customer agrees to the license terms of the software manufacturer. It is the customer's responsibility to back up all existing data on his computer before installing the software. For software errors, loss of data or other damages resulting from the installation or use of the software, the provider is only liable within the scope of § 11 of these GTC.
5. The customer authorizes the provider to safeguard his interests in the context of current contracts and a possible change of provider for all telecommunications, teleservices and other software services. This power of attorney is irrevocable for the period from the beginning and until the end of 3 months after the end of the contractual relationship.

§ 3 Changes of service content and prices

1. The Provider is entitled to unilaterally change the content of the service, especially in technical terms, as long as the change does not change the contractual agreements more than insignificantly to the disadvantage of the Customer, for example, if the functionalities (e.g., transmission speeds) are maintained or improved. The Provider is free to choose the technical means to provide the agreed services, in particular the technology and infrastructure used. The Provider is entitled to change the technical means as well as the network operator, as long as there are no legitimate concerns of the
   Customer. The Provider is also entitled to change IP numbers.
2. In the event of cost increases that were not foreseeable at the time of the conclusion of the contract, in particular if third parties from whom the Provider obtains the preliminary services necessary for the provision of its services increase their prices, or if a price increase is necessary due to regulatory provisions, the Provider shall be entitled to the following rights:
   
   • The provider is entitled to pass on the cost increase to the customer by unilateral price adjustment, provided that the price increase caused by the cost increase does not exceed 5% of the annual fee within one calendar year.
   • If the cost increase amounts to more than 5%, but not more than 10% of the annual fee, the Provider is entitled to notify the Customer that he intends to increase the price in line with the cost increase due to the cost increase. The notification must be made at least two months before the intended price increase takes effect. With the notification, the customer is informed that his agreement to the price increase is deemed to have been given if he does not object to the notified change request in writing within this two-month period. If no objection is made within this period, the contract amendment shall become effective. In the event of an objection by the customer, the Provider is entitled to terminate the contract with a notice period of two months to the end of a calendar month.
   • If the cost increase amounts to more than 10% of the annual fee, the provider must obtain the customer's express consent to the contract amendment. If the customer does not agree to an adjustment to the increased costs, the provider is entitled to terminate the contract with a notice period of two months to the end of a calendar month.

§ 4 Performance obstacles

1. All services of the provider are only provided within the framework of the existing operational, organizational and technical possibilities. However, the Provider undertakes to keep its facilities serving to provide the services in good working order, to adapt them to technical progress and general market conditions and to align their capacities with the usage behaviour of its customers.
2. interruptions or delays in service due to force majeure or due to other events which make it temporarily or permanently impossible or unreasonably difficult for the Provider to provide his service, without the Provider being at fault, and which could not have been avoided with the diligence of a prudent businessman, interrupt the Provider's service obligation for the duration of their duration and to the extent of their effect. This also applies if the provider is already in default of delivery. Events in the aforementioned sense are for example strike and lockout, technical failures at other operators of telecommunication systems, transmission paths or networks, power supply failures, fire, natural disasters, acts of violence by third parties, the improper, in particular excessive, use of the services of the Provider, the occurrence of computer viruses and official interventions. If the Provider uses third parties to provide its own services, the Provider's obligation to perform shall be subject to the proviso that the contractually obligated third party performs correctly and in a timely manner; if this is not the case, the Provider shall inform the Customer without delay.
3. If events within the meaning of the preceding paragraph lead to a permanent impossibility or to a permanent and substantial impairment of performance, both parties shall be finally released from the obligation to continue to perform the contract as of the occurrence of the event.
4. If, due to the duration of the impediment to performance, it is unreasonable for one party to continue to adhere to the contract, the party is entitled to withdraw from the contract.

§ 5 Duties and obligations of the customer

1. The customer is responsible for the technical equipment (hardware and software) available at the customer's site and its compatibility with the services of the provider.
2. The customer is obliged to use the services exclusively for the purpose intended and in compliance with the restrictions resulting from the selected tariff.
3. The customer must refrain from any violation of legal regulations and any abuse when using the services. In particular, he is obliged,
   • not to send any data or place it on the Internet or to refer to information that violates the law or the rights of third parties or is immoral,
   • to take into account the recognized principles of data security, e.g. to keep passwords secret, not to pass them on to third parties and to protect them from access by third parties and, if necessary, to ensure that they are changed, as well as to prevent the misuse of own systems by third parties,
   • to comply with all legal requirements applicable to Internet pages, in particular to keep a proper provider identification or an imprint available (§ 5 TMG),
   • to observe the national and international copyrights and trademark rights as well as other industrial property rights and personal rights of third parties.
4. In addition, the customer is obliged,
   • to notify the provider of any change in his circumstances, in particular his address, or his intention to use the services, which may be of recognizable importance for the tariff classification, the billing of the services or for the provision of the services of the provider, and
   • to release IP numbers assigned to him upon termination of the contract for Internet access, i.e. to change the computer configurations accordingly or otherwise to cease using the numbers as computer addresses.
5. Furthermore it is the responsibility of the customer,
   • to enable the Provider to install technical equipment, as far as this is necessary for the execution of the contract;
   • regularly check the message pages of the provider's Internet offering for important messages and regularly check the e-mail address or mailbox provided to the provider for the delivery of messages for the receipt of messages;
   • to immediately notify the provider of any malfunctions that may have their cause in the provider's area of responsibility and to support the provider in determining the causes and in eliminating them to a reasonable extent and to take all reasonable measures to prevent and reduce damage;
   • before the installation of the access software and the execution of installation or maintenance work by the provider to secure his data stocks against loss and to inform the provider of unsecured data stocks;
   • to provide the provider in case of technical difficulties on request with information about the technical equipment used by the provider to use the services of the provider and to follow reasonable recommendations of the provider in this respect.

§ 6 Liability and indemnity obligation of the customer, blocking of access and termination due to breaches of contract by the customer

1. The Customer undertakes to indemnify the Provider from all claims of third parties which are raised by third parties due to possible infringements of their rights or statutory provisions by the Customer's use of the Provider's services, and to reimburse all damages and expenses associated with such claims by third parties. The obligation to indemnify also includes in particular the obligation to indemnify the Provider from necessary legal defense costs. The customer is obligated to inform the provider immediately if he recognizes a violation of rights by third parties or if he has evidence of such a violation.
2. The Provider is entitled to temporarily interrupt the connection to the Internet if the Customer is guilty of serious breaches of contract, in particular breaches of the obligations listed in § 4 (3) or if there is sufficient suspicion. A sufficient suspicion of illegality is given, for example, if the Provider receives a warning from the allegedly infringed party or otherwise is held liable for the illegality of the posted content (in particular for injunction) and the warning or the request for injunction is not obviously unfounded. As far as possible, the customer is to be heard beforehand, otherwise he is to be informed immediately. The blocking must be limited to the possibly illegal content, as far as this is technically possible and reasonable. If the customer continues the violation despite a warning or if the violation is so serious that the provider cannot reasonably be expected to continue the contractual relationship, the provider is entitled to terminate the contract without notice.

§ 7 Use by third parties

1. The use of the services of the Provider is exclusively entitled to the Customer as well as the personnel employed by him. Any use by other third parties, in particular the further marketing of the services of the Provider, requires the written consent of the Provider.
2. The customer is obliged to instruct all persons who use the services of the provider via his connection and to require them to comply with all contractual agreements and all legal regulations. The customer shall be liable for any fault of such persons in relation to the provider.
3. time or volume-dependent fees must also be paid by the customer if they are based on unauthorized use of his access or on technical defects of his systems or the systems of his communication partners. However, if the customer proves that the use of the services of the provider is not attributable to him, the provider is not entitled to claim payment of fees in this respect.

§ 8 Accounting, complaints and payment

1. Similar monthly fees are due by the 10th working day of the current calendar month, unless otherwise agreed. In all other respects, the Provider's claims are due immediately upon receipt of the invoice. The Provider may send invoices as e-mail attachments or make them available for retrieval on its Internet pages.
2. The customer receives a monthly invoice for services that are billed by volume or volume. The bill only contains data on the connections for which the customer is liable to pay charges if the customer has requested itemized bills in text form for the relevant billing period in accordance with § 99 TKG or if he has raised objections to the amount of the connection charges.
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3. Complaints against invoices - including those issued by e-mail or made available by means of a retrieval option - must be made in writing to the Provider by the Customer within four weeks of receipt of the respective invoice. The omission of timely complaints shall be deemed to constitute approval of the invoice.
4. If the customer's payment obligation becomes due upon receipt of an invoice, the customer is in default if he does not pay within 14 days of the invoice date.
5. Even if the provider is obliged to pay in advance, he can demand advance payment or the provision of security if a significant deterioration in the financial circumstances of the customer becomes apparent after conclusion of the contract. Conspicuous features in payment transactions, such as exceeding payment deadlines at least twice, shall also be considered as such. If the customer does not comply with his obligation to pay or provide security, the provider is entitled to block network access or withhold other services without prejudice to his contractual claims.
6. If the customer defaults on a substantial part of the payment, the Provider is entitled to temporarily block the connection. The customer remains obligated to pay the monthly fees.
7. Customer comes
   • for two consecutive dates with the payment of the fee or a not inconsiderable part of the fee or
   • in a period extending over more than two payment dates, the Provider is in default with the payment of fees in an amount equal to the monthly basic price for two months, the Provider is entitled to terminate the contract extraordinarily without notice.
8. The customer may only offset with claims that are legally binding or undisputed.
9. The Provider is entitled to change the price list on which his services are based at his reasonable discretion (§ 315 (3) BGB). The Provider shall inform the Customer about changes in the price list in text form at least six weeks before the changes come into effect.

§ 9 Downtimes, unauthorized fault indications

1. Due to downtimes which the provider cannot prevent despite reasonable efforts, a reduction of the constant remuneration owed is not permissible.
2. If the Provider provides a fault clearance service based on the fault report and it is shown that either there was no fault or that the fault was caused exclusively within the Customer's area of responsibility (e.g. operating errors, configuration errors, defects in the hardware, software or line connection used by the Customer), the Provider is entitled to charge the Customer for all expenses and material costs as well as the time spent at reasonable hourly rates.

§ 10 Liability of the provider

1. If the provider provides telecommunication services for the public, the limitations of liability according to § 44a TKG apply.
2. Außerhalb des Anwendungsbereichs des § 44a TKG gelten für eine Haftung des Anbieters auf Schadensersatz – unbeschadet der sonstigen gesetzlichen Anspruchsvoraussetzungen – die folgenden Haftungsausschlüsse und –Begrenzungen:
   • The provider is liable if he is guilty of intent or gross negligence. In all other respects, liability for damages of any kind, regardless of the basis for the claim, including liability for culpa in contrahendo, is excluded. The liability for negligence is limited to an amount of 5000,00 € (five thousand Euro).
   • The provider is only liable for the loss of data as consequential harm caused by a defect if the customer backs up his data in a suitable form at intervals appropriate to the application, but at least once a day, so that it can be restored with reasonable effort.
   • The above exclusions and limitations of liability do not apply if the supplier has given a guarantee for the quality of a product, nor for damages that must be compensated according to the product liability law, nor for damages to life, body or health, nor for legal claims.
   • The above exclusions and limitations of liability also apply to the employees of the provider, vicarious agents and other third parties whose services the provider uses for the fulfilment of the contract.

§ 11 Term of contract and termination

1. The duration of the contract - depending on the service provided - is defined in the respective offer for the product, service or service or in our SLA's.
2. The contract can be terminated in writing by giving 6 calendar months' notice at the earliest at the end of the contract term, otherwise it will be automatically renewed for a further year.
3. If the contract is terminated before the end of the minimum lease period, a one-time uninstallation fee in the amount of the installation fee as well as a redemption amount corresponding to 50% of the monthly fees still due until the end of the agreed minimum lease period must be paid. These claims arise upon conclusion of the contract and are due immediately. However, the Provider shall tolerate non-payment without interest until the premature end of the contract.
4. The right to terminate the contract for good cause remains unaffected for both parties. In particular, the Provider shall be entitled to terminate the contract without notice in the event of serious breaches of contract by the Customer in accordance with § 6 (2) sentence 5 as well as in the event of default of payment by the Customer in accordance with § 8 (7).
5. The cancellation must be in writing.
6. If the contractual relationship is extraordinarily terminated for reasons for which the customer is responsible, the customer is obliged to pay a contractual penalty amounting to one quarter of the remaining remuneration still to be paid until the expiry of the agreed contractual term. The amount is due in one sum. The possibility of proving a higher damage remains unaffected.

§ 12 Final provisions

1. For these terms and conditions and the entire legal relationship between the contractual partners, the law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods. If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction is the registered office of the provider.
2. The entire present and future business relations between the Provider and the Customer are subject to these General Terms and Conditions of Business in their currently valid version, even without express reference. The inclusion of the general business relations of the customer is expressly contradicted.
3. If individual provisions of the contract or the General Terms and Conditions of Business are invalid or impracticable, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that comes closest to the invalid or unenforceable provision in economic terms.