GTC

General Terms and Conditions (GTC)

MPOWR IT GmbH, as of January 2023

I. General Provisions

§ 1 Scope

(1) MPOWR IT GmbH, Enderstr. 94, 01277 Dresden, Germany (“MPOWR”) provides its goods and services in its business dealings with entrepreneurs, legal entities under public law and special funds under public law exclusively on the basis of these General Terms and Conditions (“GTC”), unless otherwise stipulated in an individual contract. Where reference is made below to ‘service’ or ‘services’, this is understood to mean all goods and services of any kind supplied by MPOWR to the customer. Where the masculine form is used in reference to persons, this shall also be understood to include female and diverse persons, subject to any provision to the contrary in individual cases.

(2) MPOWR does not provide services to consumers within the meaning of Section 13 of the German Civil Code (BGB). In connection with the services referred to in paragraph 1, the GTC also apply to all pre-contractual obligations and to all future contracts, even if they are not expressly agreed upon again. For a future contract, it is not the present version of the General Terms and Conditions that applies, but a more recent version, provided that MPOWR has informed the customer, prior to or at the latest upon conclusion of the contract, of the existence of the more recent version and of how the customer can easily familiarise themselves with its content.

(3) Should the customer not wish to accept the General Terms and Conditions, they must notify MPOWR of this in writing before or at the time of conclusion of the contract. Any deviating (purchasing) terms and conditions of the customer or third parties are hereby rejected. Consequently, the terms and conditions of the customer or third parties shall not apply even if MPOWR does not specifically object to their validity in individual cases or if MPOWR refers to a letter containing or referring to the terms and conditions of the customer or a third party.

(4) Even in the event of repeated deliveries, no authorised dealer agreement or other distribution agreement shall be concluded between the parties. Likewise, neither exclusivity nor territorial protection is agreed. Such agreements must be in writing; this also applies to any agreement that waives the requirement for written form. The application, including by analogy, of the law governing commercial agents is excluded.

(5) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.

§ 2 Definition

For the purposes of these Terms and Conditions, the following term(s) means:

Working days are Monday to Friday, with the exception of public holidays in the Free State of Saxony and MPOWR’s closure on 24 and 31 December;
foreign trade restrictions: prohibitions and restrictions under the foreign trade law applicable to the specific individual contract and its performance (in particular export controls and/or customs regulations, including embargoes and prohibitions on the provision of goods or services), in particular under the foreign trade law of the Federal Republic of Germany and of the country in which the customer is based or to which and through which the intended delivery or service is to be made;
prohibition on provision: a foreign trade prohibition on the direct or indirect provision of funds, technical assistance or economic resources to certain persons, countries, institutions or organisations;
order: a binding offer by the customer to conclude an individual contract;
Individual contract: the contract concluded in a specific case within the scope of these General Terms and Conditions;
Free licence: a licence granted free of charge which permits the use, redistribution and modification of copyright-protected works under certain conditions specified in detail in the licence terms (e.g. in the case of open-source software under the BSD licence or in the case of images under the Creative Commons licence);
Custom software: a computer programme to be produced by MPOWR in accordance with the customer’s specifications, in whatever form (e.g. script, library, application, configurations), which may also consist of the adaptation or extension of another computer programme, including any documentation that may be required;
Content data: data uploaded to MPOWR’s servers by the customer or at the customer’s instigation, or otherwise transferred to MPOWR’s IT systems by the customer or at the customer’s instigation;
Deliverable: the result produced by MPOWR;
Response time: the period commencing with the fault report and ending at the point in time at which MPOWR commences rectifying the fault; if the response time is specified in hours, only hours within normal business hours shall be taken into account; if specified in days, this refers to working days, unless the parties have, in individual cases and by way of exception, agreed to fault rectification outside normal business hours; Delays for which MPOWR is not responsible shall result in a reasonable extension of the response time and shall not give rise to any claims for compensation by the customer;
Service Level: the guarantee of being available during certain times or of commencing the provision of certain services within certain response times;
Software: the generic term for standard software and custom software;
Standard software: a computer programme in any form (e.g. script, library, application, configurations) developed to meet the needs of a majority of customers on the market and not specifically for an MPOWR customer, including any documentation that may be required;
normal business hours: 09:00 to 17:00 (CET) on working days;
prohibited content: content that contravenes the law, an official order or public decency, or that contains malware or promotes its distribution; this includes, in particular, breaches of the General Equal Treatment Act and the provisions on the protection of minors and data protection, criminal and anti-competitive acts, infringements of third-party rights, namely the general right of personality, the right to one’s own image, copyright, rights to a name, trade marks, company names and other industrial property rights, breaches of trade or business secrets, as well as pornographic, violence-glorifying, discriminatory, religiously offensive, racist or far-right content, hate speech, spam and other unsolicited advertising, viruses, worms, Trojan horses and phishing links.

§ 3 Individual contract

An individual contract, and thus a contractual obligation regarding the individual services, is concluded either by an order confirmation from MPOWR, by conclusive conduct – in particular where MPOWR commences the provision of services in accordance with the contract following the order – or by the customer’s acceptance of a binding offer from MPOWR. MPOWR’s product and service descriptions do not constitute a binding offer. The customer remains bound by orders for 14 days.

§ 4 Scope of MPOWR’s services

(1) The specific content of the services to be provided by MPOWR is set out in the individual contract, together with any agreed amendments and additions to the contract.

(2) MPOWR is entitled to make minor deviations from the agreed provision of services, provided that these do not impair the quality of the service and are reasonable for the customer.

(3) Product descriptions, illustrations, test programmes, etc., constitute service specifications and do not constitute a guarantee of quality. A guarantee must be in writing to be valid. It may only be validly declared by a managing director or authorised signatory of MPOWR. Other MPOWR employees are not authorised to declare guarantees.

(4) Apart from liability for material defects and defects of title (Sections 19, 20), MPOWR shall be liable

in the case of goods with digital elements, their provision and, where applicable, their updating,
in the case of digital products (e.g. software), updates to the digital products shall only be provided to the extent that this is expressly agreed in the individual contract.

(5) As long as MPOWR’s services are provided to the customer free of charge, such services are provided on a purely voluntary basis and the customer has no claim against MPOWR for the continuation of the services. MPOWR reserves the right to discontinue the free services at any time without prior notice. In this respect, the customer also has no entitlement to receive updates, maintenance work or other assistance in relation to the services offered free of charge.

(6) MPOWR may also provide its services through third parties.

(7) All staff members deployed by MPOWR at or for the customer remain, for organisational purposes, employed by MPOWR, regardless of whether they are assigned to the customer on a long-term basis. MPOWR alone has the authority to issue instructions to its staff. Any instructions given by the customer shall be regarded merely as suggestions and shall only be binding if MPOWR adopts these suggestions and passes them on to its employees as binding instructions. The customer shall submit any suggestions regarding the service to be provided exclusively to the responsible contact person designated by MPOWR and/or their deputy (Section VI, Clause 51). The persons deployed by MPOWR shall not enter into any employment relationship with the customer, even where they perform services on the customer’s premises.

§ 5 Place where MPOWR provides its services

Unless otherwise agreed in the individual contract, MPOWR shall provide all services at locations of its choosing. Where the provision of services requires access to the customer’s systems, this shall generally be carried out via remote maintenance, provided that MPOWR’s physical presence is not required for the provision of the services.

§ 6 Remuneration, ancillary costs

(1) Prices are set out in the individual contract, together with any agreed amendments and additions thereto.

(2) In the absence of an express price agreement, prices shall be determined in accordance with the current price list in force at the time the provision of the relevant service is agreed, which may be requested from MPOWR at any time.

(3) Where the parties have specified daily rates or person-days as part of the time-and-materials remuneration, MPOWR shall be obliged to provide a maximum of eight person-hours in a calendar day. If MPOWR provides person-hours in excess of this limit on a calendar day, these shall be remunerated on a pro rata basis in addition to the standard rate, unless the excess time contravenes the customer’s discernible wishes or their objective interests. Where hourly rates are agreed, these shall be remunerated for every 30 minutes or part thereof.

(4) The prices quoted are exclusive of the costs of insurance, packaging and postage; any taxes, duties and customs charges that may arise in cross-border trade in goods and services; ancillary costs of money transfers; and the applicable statutory value-added tax (VAT).

(5) Unless otherwise agreed, the customer shall bear, upon presentation of evidence, all out-of-pocket expenses such as travel and accommodation costs, expenses and any third-party fees incurred in the performance of the contract. Travel time shall be remunerated.

(6) If the parties have not reached an agreement regarding remuneration for a service provided by MPOWR, the provision of which the customer could reasonably have expected, given the circumstances, to be subject to remuneration, the customer shall pay the customary remuneration for such a service. In case of doubt, the customary rates charged by MPOWR for its services shall apply.

§ 7 Payment and Default

(1) Unless otherwise agreed, MPOWR’s invoices are payable immediately, but no later than 14 days after receipt of the invoice, and without any deductions. In the event of a permissible partial delivery, this may be invoiced immediately. Invoices may be issued electronically. Where payment in advance has been agreed, MPOWR shall perform the service only upon receipt of payment.

(2) Unless otherwise agreed in an individual contract, the following shall apply to the payment of ongoing fees. Insofar as the fee

regardless of the extent of use or other variables, this is payable monthly in advance; if the contract commences or ends during the current calendar month, the payment obligation is pro rata;
depending on usage and other factors, invoicing occurs at the end of each billing month.

(3) If the customer fails to pay by the due date, interest at the rate of 5% per annum shall be charged on the outstanding amounts from the due date; MPOWR reserves the right to claim higher interest and further damages in the event of default.

(4) If the customer defaults, interest at the statutory rate shall be charged from the relevant date. MPOWR reserves the right to claim higher damages for delay. MPOWR’s other rights remain unaffected; this applies in particular to MPOWR’s rights to withhold performance under Sections 273 and 320 of the German Civil Code (BGB) and MPOWR’s right to terminate the contract for good cause.

(5) Notwithstanding any provisions to the contrary on the part of the customer, MPOWR is entitled to apply payments first towards the customer’s older debts and shall inform the customer of the manner in which the set-off has been made. If costs and interest have already been incurred, MPOWR is entitled to apply the payment first towards the costs, then towards the interest and finally towards the principal claim.

(6) All payments shall be made in euros and, unless otherwise agreed in the individual contract, by bank transfer to an account designated by MPOWR. A payment shall be deemed made only once MPOWR has access to the amount.

(7) If MPOWR becomes aware of circumstances which objectively call into question the customer’s creditworthiness – in particular, if the customer suspends payments or a direct debit is returned due to insufficient funds – MPOWR is entitled to declare the entire outstanding debt due and payable. In this case, MPOWR is also entitled to demand advance payments or security.

(8) MPOWR is entitled, subject to the statutory requirements, to demand instalment payments equivalent to the value of the services provided by MPOWR and owed under the contract.

§ 8 Export controls and embargoes

(1) The goods or services shall be used exclusively for the purposes specified in the individual contract. Unless otherwise agreed in the individual contract, the customer warrants that neither the customer nor its end customers shall use the goods or services as part of a supply or service in connection with any of the following technologies: defence technology, weapons, missiles capable of carrying weapons, and/or nuclear technology.

(2) The customer further warrants that the delivery or service shall not be used, either by the customer or by its end customers, in breach of any foreign trade restrictions. The Customer shall examine the intended supply or service at the earliest possible opportunity – where possible and reasonable, even before placing the order – for any relevant foreign trade restrictions, and shall inform MPOWR without delay should there be any indications of such restrictions. The specific details shall be set out in the individual contract.

(3) MPOWR may refuse to fulfil its obligations under the individual contract to the extent that such fulfilment is prohibited or impeded by foreign trade restrictions. MPOWR shall inform the customer without delay of such circumstances.

(4) If MPOWR refuses to supply goods or services on the grounds of a prohibition on supply and the Customer disputes the existence of such a prohibition, the Customer shall, insofar as is possible and reasonable, apply to the competent authority for written confirmation that MPOWR’s fulfilment of its obligations under the individual contract does not contravene the foreign trade law applied by that authority. If such confirmation is not provided within a reasonable period, the parties shall assume that a prohibition on provision exists. Likewise, the parties shall assume that a prohibition on provision exists if it is impossible or unreasonable to apply to the competent authority for such confirmation and there are objective indications that a breach of a prohibition on provision is possible.

(5) Claims by the customer for damages and reimbursement of expenses arising from the aforementioned foreign trade restrictions are excluded, insofar as MPOWR is not itself responsible for the foreign trade restriction (e.g. because MPOWR is no longer classified as reliable by the export control authorities due to previous conduct in breach of export control legislation) or MPOWR has fraudulently misled the customer as to the existence of the foreign trade restriction. MPOWR shall not be liable for mere negligent ignorance of a foreign trade restriction. The scope and extent of liability for damages and reimbursement of wasted expenditure arising from a foreign trade restriction for which MPOWR is responsible are governed by Section 22 (‘Liability of MPOWR’).

(6) Without prejudice to any further statutory or contractual obligations to provide information, the customer shall immediately inform MPOWR of all circumstances and provide all documents required under the foreign trade law of the country,

in which the customer has its registered office,
into which the goods or services are to be delivered in accordance with their intended purpose, as well as
through which the goods or services are supplied in accordance with their intended purpose,

which are necessary or appropriate for the smooth fulfilment of MPOWR’s obligations. This includes, in particular, details of the end customer, the destination country, and the intended use of the goods or services.

§ 9 Dates, deadlines and impediments to performance

(1) Delivery and performance dates or deadlines are agreed to be non-binding. Should they, in exceptional cases, be binding, this shall require an express written agreement. Where dispatch has been agreed, delivery deadlines and dates shall refer to the time of handover to the forwarding agent, carrier or any other third party commissioned to carry out the transport.

(2) No liability shall be accepted for the impossibility of performance or delays in performance due to force majeure or other events unforeseeable at the time the contract was concluded – these include, in particular, operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, pandemics, strikes, lawful lockouts, delays in the granting of permits, confirmations or similar requirements, particularly in connection with foreign trade law, official orders, or failure to deliver, incorrect delivery or late delivery by suppliers – even if these occur at MPOWR’s suppliers or their sub-suppliers – or problems with third-party products (e.g. changes to or failures of interfaces with connected third-party software) – for which MPOWR is not responsible, MPOWR shall not be liable. MPOWR shall inform the customer of such circumstances without delay.

(3) Insofar as events for which MPOWR is not responsible within the meaning of paragraph 2 significantly impede or render impossible the performance of the contract, and the impediment is not merely of a temporary nature, MPOWR shall be entitled to be released from its obligation to perform the contract; MPOWR shall immediately refund any consideration already paid by the customer for the unfulfilled part. If such events lead to impediments of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the duration of the impediment plus a reasonable start-up period. MPOWR shall notify the customer of the expected new dates or periods without delay. If the hindrance lasts for more than two months, the customer shall be entitled, after setting a reasonable grace period with a threat of rejection, to terminate the relevant individual contract in respect of the part not yet performed. Any further statutory rights of the customer remain unaffected. Likewise, the statutory provisions in favour of MPOWR regarding the exclusion of the obligation to perform pursuant to Section 275 of the German Civil Code (BGB) remain unaffected.

(4) The second sentence of paragraph 3 shall apply mutatis mutandis if the customer fails to provide cooperation in breach of the contract, e.g. by failing to provide information, failing to grant access, failing to supply materials or failing to make staff available, or if the customer is in default of payment. However, the customer’s right to withdraw from or terminate the contract is excluded in such cases.

(5) If the parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period.

§ 10 Reminder and setting of a grace period by the customer; requirement of fault in the event of withdrawal or termination

(1) The termination of the further exchange of performance as a result of breaches of contract (e.g. in the event of withdrawal, termination for cause or damages in lieu of performance), as well as any reduction in the agreed remuneration by the customer, must always be threatened by giving notice of the reason and setting a reasonable grace period for rectification, without prejudice to any further legal requirements. Termination or reduction may only take effect once the grace period has expired without result. In the cases referred to in Section 323(2) of the German Civil Code (BGB), the setting of a grace period may be dispensed with.

(2) All declarations by the customer in this context, in particular reminders and the setting of grace periods, must be in writing to be valid. A grace period must be reasonable. A period of less than two weeks set by the customer is only reasonable in cases of particular urgency.

(3) In the event of a breach of duty that does not constitute a defect, the customer may only withdraw from the contract or terminate it if MPOWR is responsible for the breach of duty.

§11 Price changes in ongoing contractual relationships

(1) The ongoing remuneration under continuing contractual relationships (e.g. for Software as a Service, agreed flat-rate fees or hardware hire) may be adjusted annually in line with price trends, provided that the Federal Statistical Office’s Producer Price Index for IT Services has changed by at least one percentage point since the start of the contract or, in the event of previous changes, since the last adjustment.

(2) To this end, the party wishing to request an adjustment may, prior to the start of each new contract year, submit a written proposal to the other party regarding the amount of the price adjustment, which must be based on the trend in the Producer Price Index for IT Services published by the Federal Statistical Office, taking into account considerations of fairness; the other party may accept or reject this proposal in writing within one month.

(3) In the event of rejection, the amount of the adjustment shall be determined by a publicly appointed and sworn expert, in accordance with the criteria agreed above. At the request of the party seeking the adjustment, the expert shall be appointed by the Chamber of Industry and Commerce with local jurisdiction over MPOWR. The expert’s decision, in their capacity as an arbitrator, shall be binding on both parties; the right to challenge the decision on the grounds of manifest error remains unaffected. The parties shall each bear half of the expert’s costs.

(4) If the other party accepts the proposal or the expert reaches a determination, the new price shall apply – including retrospectively – from the first month of the new contract year.

(5) The parties’ rights to adjust or terminate the contract on the grounds of a change in the basis of the transaction (Section 313 of the German Civil Code (BGB)) remain unaffected by the preceding paragraphs. The parties agree that, in particular, inflation exceeding the usual range (e.g. as a result of a pandemic) constitutes a change in the basis of the contract, on the basis of which MPOWR may demand a price adjustment even without the conditions set out in the preceding paragraphs being met, or may terminate the continuing obligation under the conditions of Section 313(3) of the German Civil Code (BGB).

§ 12 Set-off, retention and assignment

(1) The customer shall only be entitled to set off or withhold payment if the counter-claims due have been legally established, are undisputed or are ready for a decision. However, the customer is also entitled to set-off without the further conditions set out in the first sentence if they wish to set off a claim against a claim by MPOWR which is in a reciprocal relationship to the customer’s claim (e.g. setting off a claim for damages due to non-performance or delay against the claim for payment of the remuneration owed).

(2) Except in the context of Section 354a of the German Commercial Code (HGB), the customer may only assign their claims against MPOWR to third parties with MPOWR’s prior written consent, unless MPOWR has no legitimate interest in the prohibition on assignment.

§ 13 Materials supplied by the customer, free licences

(1) If the Customer provides materials (e.g. texts, graphics, images, videos, third-party software, including those under free licences) whose use could infringe the rights of third parties (e.g. copyright and industrial property rights, rights to one’s own image), the Customer is obliged to clarify and obtain the necessary rights in advance to the extent required to fulfil the purpose of the contract. In particular, prior to providing any materials as referred to in the first sentence, the Customer shall verify whether it holds the necessary rights to use them within the scope of the Contract, both for its own purposes and in relation to the performance of the Contract by MPOWR. Upon request, the Customer shall immediately provide MPOWR with evidence of sufficient ownership of the rights or the acquisition of such rights.

(2) MPOWR shall not be obliged to verify that the Customer has acquired sufficient rights.

(3) The Customer shall indemnify MPOWR against any loss or damage resulting from claims by third parties arising from the infringement of intellectual property rights and other rights, unless the Customer is not responsible for such claims. The Customer shall hold MPOWR harmless from any detriment suffered by MPOWR as a result of claims by third parties arising from tortious acts for which the Customer is responsible.

(4) Insofar as it is appropriate for the performance of the contract, MPOWR may, on behalf of the customer, copy suitable materials from publicly available sources that are covered by a free licence and make them available to the customer. No separate authorisation from the customer is required for this. MPOWR shall, upon request, inform the Customer at any time of which materials covered by a free licence have been used by MPOWR or are to be used in future. Paragraphs 1 to 3 shall apply mutatis mutandis, but only to the extent and from the point in time at which MPOWR has informed the Customer of the use of the relevant material covered by a free licence and the Customer has had sufficient opportunity to verify the rights clearance.

§ 14 Änderungswünsche

(1) If the customer wishes to amend the contractually agreed scope of the services to be provided by MPOWR, the customer shall notify MPOWR of their request for amendment.

(2) The originally agreed deadlines and dates shall be postponed, taking into account the time required to assess the request for change and, where applicable, the time required to implement the requested changes, plus a reasonable lead time, even without the need for express notification.

(3) MPOWR may, for its part, submit proposals to the customer regarding changes to the services, the timetable and the remuneration agreed to date. The preceding paragraphs shall apply mutatis mutandis.

§ 15 General ancillary and cooperation obligations of the customer

(1) The customer shall provide MPOWR with reasonable assistance in the performance of MPOWR’s contractual obligations.

(2) In particular, the customer shall

ensure that the necessary conditions within the Customer’s sphere of operations are in place, to the extent required for MPOWR to provide the services in accordance with the contract. This includes, for example, access to the necessary premises, systems and documentation, as well as the availability of the relevant technical contacts by telephone. The customer shall provide MPOWR with detailed instructions regarding any circumstances to be taken into account whilst MPOWR is carrying out work on the customer’s premises and systems;
to provide MPOWR with all necessary information and documentation without delay upon request by MPOWR, and of its own accord as soon as the Customer becomes aware of their potential relevance; this applies in particular to information and documentation relating to hardware, software, interfaces and data sets, insofar as these items fall within the Customer’s sphere of control or responsibility and may be material to the performance of the contractual obligations.

(3) Unless otherwise agreed in the individual contract, the customer shall provide the hardware and software infrastructure required within the customer’s operational environment and shall take the necessary precautions against unauthorised external access to its systems, data loss, and the infection by and spread of malware (e.g. through anti-virus programmes, firewalls, penetration tests, data backup and, in particular, appropriate backup and recovery routines in accordance with the current state of the art for both data and programmes, fault diagnosis, regular review of results, and contingency planning).

(4) The Customer is obliged to protect any software provided or made available to the Customer by MPOWR from unauthorised access by third parties by taking appropriate precautions. To this end, the Customer shall, in particular, store access details and user documentation in a secure location. The Customer shall also expressly instruct its employees and vicarious agents, as well as any other users who use the software in accordance with the provisions of the individual contract, to comply with these contractual terms and conditions and the provisions of copyright law.

(5) The customer has

to provide complete and truthful information in connection with any necessary registrations and other enquiries required to fulfil the purpose of the contract,
where required during registration, to choose a username that must not infringe the rights of third parties, nor any other rights relating to names or trade marks, nor be contrary to public policy,
to keep the password confidential and not to disclose it to third parties under any circumstances; the customer must inform MPOWR immediately if there are any indications that their access is being or has been misused by third parties,
to notify MPOWR immediately in the event of any subsequent changes to the data requested.

The second sentence of paragraph 4 applies mutatis mutandis to registrations and the use of user accounts.

(6) The customer undertakes to notify MPOWR immediately in the event of any change in the person concerned, the address, the name, the legal form or the company name.

(7) All of the Customer’s obligations to cooperate are primary obligations. The Customer shall carry out any acts of cooperation at its own expense.

§ 16 Intellectual property rights

(1) Subject to any provision to the contrary in these General Terms and Conditions or in the individual contract, copyright, patent rights, trade mark rights and all other intellectual property rights in all items which MPOWR provides to or makes available to the customer in the course of the preparation and performance of the contract shall, in the relationship between the parties, vest exclusively in MPOWR.

(2) Insofar as third parties hold intellectual property rights in the items or these are subject to a free licence, MPOWR shall have the corresponding rights of use; in such cases, the applicable licence terms shall apply instead.

(3) Where MPOWR has affixed to these items – and, in the case of software, in particular to the source code and the user interface – notices regarding its authorship, other intellectual property rights (including those of third parties), terms of use and licence conditions, as well as safety and warning notices, disclaimers and limitations of liability, trademarks and logos, the Customer may not remove, falsify or otherwise alter these notices without MPOWR’s consent; MPOWR shall not withhold its consent if there is good cause for the alteration.

(4) MPOWR reserves title to and copyright in all offers and quotations issued by MPOWR, as well as in the drawings, illustrations, calculations, brochures, catalogues, models, tools, test or demonstration programmes and other documents and aids made available to the customer. The customer may not, without MPOWR’s express consent, make these items available to third parties—either in their original form or in terms of their content—disclose them, use them themselves or through third parties, or reproduce them. Upon MPOWR's request, the customer must return these items in full to MPOWR and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not result in a contract.

§ 17 Term and termination of individual contracts

(1) The start and end dates of individual contracts are set out in the respective individual contract.

(2) Where a minimum term is specified in the individual contract, the contract may be terminated for the first time by giving three months’ notice prior to the expiry of the agreed minimum term. Upon expiry of the minimum term, the individual contract shall be extended for a further year at a time, provided it is not terminated within the notice period specified in the first sentence.

(3) If a fixed term or a fixed termination date is specified in the individual contract, the individual contract shall end upon reaching that date. The parties should therefore hold discussions in good time regarding whether and how the contract might be extended.

(4) An individual contract which establishes a continuing obligation under which recurring services and consideration are to be provided, and which contains no details regarding the contract term, may be terminated by giving three months’ notice to the end of a calendar month.

(5) The right to terminate for good cause remains unaffected. Good cause for termination by MPOWR includes, in particular,

a breach by the customer of any of the main contractual obligations or of a material contractual obligation,
if signs emerge which give rise to objective doubts as to the customer’s financial standing,
a significant direct or indirect change (e.g. including through contractual agreements, control agreements or trust agreements) in the customer’s ownership structure (‘change of control’); it is clarified that the mere appointment of an insolvency administrator does not constitute a change of control; in any event, the customer must notify MPOWR of any such changes without delay,
the expiry without result of a reasonable grace period set for payment in the event of the customer’s default on payment, or where the customer is liable to pay a recurring monthly fee, if the customer is in arrears with the payment of the fee, or a significant portion thereof, for two consecutive payment dates, or is in arrears with the payment of the fee, over a period spanning more than two payment dates, for an amount equivalent to two months’ fees,
a breach of the employee protection provisions under Section 24 of these General Terms and Conditions,
a breach of the obligation of confidentiality and data protection under Section 25 of these Terms and Conditions, or
any other material breach of the obligations set out in these Terms and Conditions.

(6) Any termination of an individual contract must be in writing.

§ 18 Error classes

(1) The parties define the following error classes:

Fault Class 1 — Faults preventing operation

The defect prevents the goods or services covered by the contract from operating; there is no workaround. Malfunctions of key functions leading to a complete breakdown.

Defect Class 2 — Defects that impede operation

The fault significantly impedes the operation of the delivery or service covered by the contract; however, use is still possible through workarounds or with temporarily acceptable restrictions or difficulties. Despite the disruption to a central function, the intended effects can be achieved through a workaround. A less central function is unavailable; although no workaround is available, it is still possible to work effectively with certain restrictions. Frequent failures or system crashes; significantly reduced performance.

Defect Class 3 — Other defects

Other defects (cosmetic). Errors in the documentation (insofar as this is contractually required) which do not cause any consequential errors. Defects relating to user-friendliness. Individual functions take too long, relative to the state of the art, without causing unreasonable disruption. Short-term or other acceptable performance losses; faults that can be easily resolved using workarounds; faults that have no direct impact on operation.

(2) If the Class 3 defects collectively result in a restriction of usability that is not merely insignificant, the defects taken as a whole may constitute a Class 1 or Class 2 defect.

§ 19 Material defects

(1) The goods or services shall be of the agreed quality, shall be fit for the purpose specified in the contract or, failing that, for their normal use, and shall be of the quality customary for goods or services of this kind.

(2) Claims for defects in the goods or services are excluded in particular in the following cases:

Contractual relationships for which the law does not provide for claims for defects in goods, such as service contracts;
Deliveries and services provided by MPOWR for which the customer is not required to make any payment;
where there are only minor deviations from the agreed quality and only minor impairments to usability;
Faults resulting from use outside the agreed environmental conditions, incorrect operation, modifications contrary to the contract, improper transport, incorrect installation, incorrect storage, or the use by the customer of spare parts or consumables that do not comply with the original specifications, or of any item supplied by the customer or any assistance provided by the customer, insofar as MPOWR is not responsible for this;
defects of which the customer was unaware at the time the contract was concluded as a result of gross negligence;
a delivery or service to a territory outside the Federal Republic of Germany, and in the event that the delivery or service is intended to be resold or used in a territory outside the Federal Republic of Germany in accordance with its intended purpose, insofar as the delivery or service contravenes technical standards, statutory or other regulatory provisions in the territory in question of which MPOWR was neither aware nor could reasonably have been expected to be aware; MPOWR is under no obligation to examine the specific features of foreign law;
a contract for the supply of second-hand goods. All other statutory or contractual exclusions of claims for defects remain unaffected.

(3) The Customer shall assist MPOWR in fault analysis and rectification of defects by providing a detailed description of any problems that arise and keeping MPOWR fully informed. In particular, the Customer shall notify MPOWR of any defects, providing a precise description of the fault symptoms and the expected behaviour of the application, and shall also, where possible and reasonable, provide relevant log files and screenshots; The Customer shall immediately notify MPOWR of any changes to the fault symptoms, providing a precise description of such changes. The Customer shall grant MPOWR the time and opportunity necessary to investigate the alleged defect and to rectify it. In the case of a movable item, the Customer shall, at MPOWR’s discretion, either send the item in question to MPOWR for examination or make it available on site for examination.

(4) The defect shall be rectified, at MPOWR’s discretion, either by rectifying the defect on site or at a location of MPOWR’s choosing, or by supplying an item that is free from the defect. At least three attempts at rectification must be accepted for any defect. Insofar as rectification is possible via remote maintenance and is reasonable for the customer, MPOWR may carry out the rectification via remote maintenance; in this case, the customer must ensure, at their own expense, that the necessary technical requirements are met and grant MPOWR the appropriate electronic access following prior notification.

(5) Until the defect is finally rectified – which must be done within a reasonable period – the defect may also be temporarily remedied by MPOWR demonstrating ways to avoid the effects of the defect by means of a workaround, insofar as and for as long as this is reasonable for the customer. In the case of a defect in standard software, the Customer must accept a new or previous version of the programme that does not contain the defect, provided this is reasonable for the Customer.

(6) If the item is located at a place other than the place of intended use, the customer shall bear any additional costs arising from this in connection with the examination of the defect and its rectification.

(7) Insofar as a defect reported by the customer cannot be established, or MPOWR is not responsible for the impairment, in particular pursuant to paragraph 2, sentence 1, no. 4, the customer shall bear MPOWR’s costs in accordance with the agreed or customary prices, unless the absence of a defect was not apparent to the customer.

(8) In the event of defects in goods manufactured or supplied by third parties which form part of MPOWR’s delivery or service and which MPOWR is unable to remedy for reasons relating to licensing or factual circumstances, MPOWR shall, at its discretion, either assert its claims for defects against the third party or assign them to the customer. Claims for defects against MPOWR pursuant to this Section 19 shall, in the event of the assignment of such claims to the customer, only exist to the extent that MPOWR’s judicial enforcement of the aforementioned claims against the third party has been unsuccessful through no fault of the customer, or is, for example, futile due to insolvency. For the duration of the legal proceedings, the limitation period for the Customer’s relevant claims for defects against MPOWR shall be suspended. MPOWR shall reimburse the Customer for the costs of the legal proceedings that are recoverable under the relevant cost laws, in so far as the Customer and its legal representatives were entitled to consider such costs necessary in the circumstances and were unable to recover them from the third party.

(9) In the event of the transfer of an item or the granting of temporary use in any other form, the customer may not reduce the current remuneration in the event of defects. Any existing right to reclaim remuneration paid, subject to reservation, remains unaffected. A claim for damages or reimbursement of futile expenditure due to a defect that already existed at the time the contract was concluded shall only arise if MPOWR is responsible for the defect; liability for initial defects under Section 536a(1) of the German Civil Code (BGB), where applicable in conjunction with Section 548a BGB, is excluded.

(10) The exclusions and limitations of the customer’s rights under this Section 19 shall not apply where MPOWR has acted fraudulently or has given a guarantee as to the quality of the item.

(11) Section 22 (‘Liability of MPOWR’) shall apply to the scope and extent of liability for damages and reimbursement of wasted expenditure arising from a material defect for which MPOWR is responsible.

§ 20 Legal defects

(1) Subject to any agreement to the contrary in the individual contract, MPOWR warrants that the delivery or service is not subject to any third-party rights within the Federal Republic of Germany. MPOWR is only obliged to check for conflicting industrial property rights or other intellectual property rights of third parties within the territory of the Federal Republic of Germany.

(2) In the event of a delivery or service to a territory outside the Federal Republic of Germany, and in the event that the delivery or service is intended to be resold or used in a territory outside the Federal Republic of Germany in accordance with its intended purpose, a legal defect arising from a conflicting industrial property right or other intellectual property of third parties shall only exist if MPOWR was aware of this at the time of conclusion of the contract or ought to have been aware of it. The customer shall therefore carry out the necessary intellectual property searches themselves prior to delivery or use abroad.

(3) In the event of legal defects, MPOWR shall provide a warranty by, at MPOWR’s discretion,

modifies or replaces the goods or services in such a way that the legal defect is remedied, provided that this does not result in any reduction in quality, quantity or value and is otherwise reasonable for the customer, or
the customer obtains the right to use the software by entering into a licence agreement.

(4) The Customer shall notify MPOWR in writing without delay should any third party assert intellectual property rights (e.g. copyright, trade mark or patent rights) in relation to the goods or services supplied. The customer authorises MPOWR to conduct the dispute with the third party solely on its own behalf. If MPOWR makes use of this authorisation, the customer must not, on its own initiative, acknowledge the third party’s claims without MPOWR’s consent. MPOWR shall then defend against the third party’s claims. Insofar as the customer is responsible for the assertion of the infringement of intellectual property rights (e.g. as a result of use in breach of contract or the customer’s failure to carry out intellectual property searches), the customer shall indemnify MPOWR against all reasonable costs associated with defending against these claims and shall reimburse MPOWR for all further damages and expenses; In this case, MPOWR shall be entitled to payment of a reasonable advance.

(5) The scope and extent of liability for damages and reimbursement of futile expenses arising from a legal defect for which MPOWR is responsible shall be governed by Section 22 (‘Liability of MPOWR’).

(6) Section 19(2), first sentence, points 1, 2, 4 and 5, second sentence, and paragraphs 8, 9 and 10 shall apply mutatis mutandis.

§ 21 Supplier recourse

(1) The statutory provisions governing recourse against suppliers are excluded to the following extent:

Sections 478, 445a, 445b and Sections 445c, 327(5) and 327u of the German Civil Code (BGB) shall not apply if, for example, within the framework of a quality assurance agreement, MPOWR and the customer have agreed on equivalent compensation.
Section 445a(1) and (2) of the German Civil Code (BGB) shall not apply where the final delivery of the newly manufactured goods is made to a trader. Under no circumstances shall the parties apply Section 445a(1) or (2) of the German Civil Code (BGB) in the case of final delivery to a business if the newly manufactured goods have been traded across borders at any point in the supply chain (international supply chain).
If the final delivery of the newly manufactured goods is made to a business, the limitation period set out in Section 445b(1) of the German Civil Code (BGB) is reduced to six months.
If the final delivery of the newly manufactured goods is made to a business, the suspension of the limitation period under section 445b(2) of the German Civil Code (BGB) shall end no later than three years after MPOWR has delivered the goods to the customer.

(2) In all other respects, the statutory provisions governing recourse against suppliers shall continue to apply.

(3) Section 22 (‘Liability of MPOWR’) shall apply to the scope and extent of liability for damages and reimbursement of wasted expenditure.

§ 22 MPOWR’s liability

(1) MPOWR’s liability for damages, regardless of the legal basis (e.g. arising from impossibility of performance, delay, defective or incorrect delivery or performance, breach of contract and tort), is limited in accordance with this Section 22 (“MPOWR’s Liability”), provided that such liability presupposes fault on the part of MPOWR.

(2) MPOWR’s liability for simple negligence is excluded, unless there has been a breach of an essential contractual obligation, the fulfilment of which is indispensable for the proper performance of the contract, on the observance of which the customer was entitled to rely, and the non-fulfilment of which jeopardises the achievement of the purpose of the contract (a so-called “cardinal obligation”). In the event of a breach of such an essential contractual obligation, MPOWR’s liability in cases of simple negligence is limited to damages typical of the contract and foreseeable at the time the contract was concluded. However, MPOWR’s liability in cases of simple negligence shall not exceed the liability limits agreed in the individual contract.

(3) In the event of gross negligence, MPOWR’s liability is limited to damages typical of the contract and foreseeable at the time the contract was concluded.

(4) The above exclusions and limitations of liability set out in paragraphs 2 and 3 apply, including retrospectively, to the same extent to claims arising from a breach of duties during contract negotiations.

(5) Insofar as MPOWR is not itself obliged to carry out data backup measures, the damage typical of the contract and foreseeable at the time the contract was concluded in the event of data loss corresponds to the typical cost of recovery. The typical cost of recovery is measured by the damage that would have occurred had the customer carried out reasonable backup measures with the diligence of a prudent businessman.

(6) Insofar as MPOWR’s breach of duty relates to supplies and services which MPOWR provides to the customer free of charge (e.g. in the context of a gift, loan or gratuitous agency, as well as in the case of mere acts of goodwill), liability for simple negligence is excluded in its entirety. In this case, MPOWR’s liability for gross negligence is also excluded if the customer is an entrepreneur, a legal entity under public law or a special fund under public law. Insofar as MPOWR provides technical information or acts in an advisory capacity after the conclusion of the contract, and such information or advice does not form part of the contractually agreed scope of services owed by MPOWR, this is provided free of charge and subject to the exclusion of any liability for negligent provision of incorrect information or advice.

(7) The exclusions and limitations of liability set out in this Section 22 (“Liability of MPOWR”) shall apply mutatis mutandis to claims for reimbursement of wasted expenditure and to claims for indemnification.

(8) The exclusions and limitations of liability set out in this Section 22 (“Liability of MPOWR”) shall apply to the same extent in favour of MPOWR’s organs, legal representatives, employees and other vicarious agents.

(9) The exclusions and limitations of liability set out in this Section 22 (“MPOWR’s Liability”) shall not apply to MPOWR’s liability arising from wilful misconduct, from injury to life, limb or health, in cases of fraud, where a guarantee has been given, or in respect of claims under the Product Liability Act.

§ 23 Limitation period for the customer’s claims

(1) The limitation period for claims by the customer against MPOWR is

for claims arising from material defects or defects of title relating to a refund of the consideration following withdrawal or a reduction in price, one year from the date on which the valid notice of withdrawal or reduction in price was given; withdrawal or a reduction in price shall only be valid if they are declared within the time limit specified in paragraph 2 for material defects or the time limit specified in paragraph 3 for defects of title;
in the case of claims arising from defects in the goods which do not relate to the repayment of the consideration following withdrawal or a reduction in price, one year;
in the case of claims arising from defects in title which do not relate to the repayment of consideration following withdrawal or a reduction in price, two years; however, if the defect in title consists of a third party’s exclusive right, on the basis of which the third party may demand the return or destruction of the items made available to the customer, the statutory limitation period shall apply;
in the case of claims for repayment of remuneration, damages or reimbursement of wasted expenditure not based on material defects or defects of title, two years.

(2) Subject to any contrary provisions in an individual contract, the limitation period shall commence, in the cases referred to in paragraph 1(2) and (3), in accordance with the statutory provisions, in particular the applicable law on liability for defects; in the case referred to in paragraph 1(4), it shall commence from the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware of them had it not been for gross negligence. Subsequent delivery or rectification shall not result in the commencement of a new limitation period or an extension of the existing limitation period, unless MPOWR has, in exceptional circumstances, made a declaration of acknowledgement within the meaning of Section 212(1)(1) of the German Civil Code (BGB). The limitation period shall expire at the latest upon the expiry of the maximum periods specified in Section 199 of the German Civil Code (BGB).

(3) Notwithstanding the foregoing, the statutory limitation provisions shall apply

in the case of claims for damages and reimbursement of wasted expenditure arising from gross negligence and in the cases referred to in Section 22(9),
in the case of claims for reimbursement of expenses following the termination of a tenancy agreement,
for all claims other than those referred to in paragraph 1.

§ 24 Poaching of staff

The customer undertakes not, for a period of two years following the termination of the contractual relationship, to poach MPOWR employees, whether directly or through third parties, or to allow third parties to poach such employees, or to encourage or assist third parties in carrying out such poaching activities.

§ 25 Confidentiality and Data Protection

(1) The Customer undertakes to treat as confidential the content of the individual contracts concluded on the basis of these General Terms and Conditions, as well as all information and knowledge obtained in connection with the negotiation and performance of the contract, insofar as such information is recognisably subject to confidentiality at the express request of MPOWR and/or in light of the circumstances of the individual case, and not to disclose it to any third party, unless such disclosure is necessary for the performance of the contract, or is required by law, or has been bindingly ordered by a court or a public authority. The Customer shall inform MPOWR in advance of any such compelled disclosure, insofar as this is lawful, and shall limit the disclosure to the extent strictly necessary. Advisers, auditors, banks or insurance companies bound by a duty of confidentiality shall not be regarded as third parties. Any further statutory obligations regarding confidentiality remain unaffected.

(2) The Customer shall comply with the data protection regulations currently in force. This also includes technical security measures adapted to the current state of the art (Article 32 of the GDPR) and the obligation on employees to maintain the confidentiality of personal data (Article 28(3)(b) of the GDPR). Where data processing on behalf of a controller (Article 28 of the GDPR) or joint controllership (Article 26 of the GDPR) applies, the Customer is obliged, at MPOWR’s request, to enter into a data protection agreement at any time that complies with the requirements of the EU General Data Protection Regulation.

(3) The obligations regarding confidentiality under paragraph 1 and compliance with data protection obligations under paragraph 2 shall apply indefinitely.

(4) In the event of any doubt, any confidentiality agreement already concluded or to be concluded between the parties shall take precedence over this Section 25.

§ 26 Contractual penalty

In the event of a culpable breach of an obligation under Section 24 (‘Poaching of Employees’) or Section 25 (‘Confidentiality and Data Protection’), the Customer undertakes to pay MPOWR a contractual penalty to be determined by MPOWR at its reasonable discretion in each individual case and, in the event of a dispute regarding its reasonableness, to be reviewed by the competent court; however, in the event of a breach of an obligation under Section 25 (‘Confidentiality and Data Protection’), the obligation to pay a contractual penalty is limited to breaches occurring within five years of the performance of the last individual contract concluded on the basis of these General Terms and Conditions. Further claims for damages are not precluded by the contractual penalty.

§ 27 MPOWR is under no obligation to pay contractual penalties

MPOWR is under no obligation to pay a contractual penalty to the customer, regardless of the legal basis. This also applies, in particular, in the event of default by MPOWR.