Terms and Conditions

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 or special funds under public law exclusively on the basis of these General Terms and Conditions (“GTC”), unless otherwise agreed in individual contracts. Where reference is made below to “service” or “services”, this shall be 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 deviating provisions 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 but a more recent version of the GTC that applies, 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 contents.

(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) No authorised dealer agreement or other distribution agreement shall be concluded between the parties, even in the event of repeated deliveries. Likewise, neither exclusivity nor territorial protection is agreed. Such agreements must be in writing; this also applies to any agreement waiving the requirement for the written form. The application, including analogous application, of commercial agency law 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:

Working days are Monday to Friday, excluding public holidays in the Free State of Saxony and excluding 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 specific 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 the licence terms (e.g. for open-source software under the BSD licence or for 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 beginning with the error report up to the point at which MPOWR commences rectification of the error; if the response time is specified in hours, only hours within normal business hours shall be taken into account; if days are specified, this refers to working days, unless the parties have, in individual cases, exceptionally agreed to rectify errors 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, Trojans and phishing links.

§ 3 Individual contract

An individual contract, and thus a contractual obligation regarding the specific services, is formed 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 accepting 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 thereto.

(2) MPOWR is entitled to make minor deviations from the agreed scope 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. are service descriptions 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 employees of MPOWR are not authorised to declare guarantees.

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

in the case of goods with digital elements, to provide and, where applicable, update them,
in the case of digital products (e.g. software), to update the digital products only 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 purely voluntary, 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 deployed at the customer’s premises for an extended period. MPOWR alone has the authority to issue instructions to its staff. Any instructions given by the customer shall be regarded solely as suggestions and shall be binding only if MPOWR adopts them 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 an employment relationship with the customer, even if they perform services on the customer’s premises.

§ 5 Place of performance by MPOWR

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 services.

§ 6 Remuneration, incidental 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 agreement on prices, the 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) If the parties have agreed on 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 additional man-hours in a calendar day, these shall be remunerated pro rata, unless the time overrun is contrary to 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 shipping, 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.

(5) Unless otherwise agreed, the customer shall bear, upon presentation of evidence, all expenses such as travel and accommodation costs, incidental expenses and third-party claims for remuneration 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 expect to be subject to remuneration given the circumstances, 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 deduction. 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 only perform the service after receipt of payment.

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

is independent of the extent of use or other variables, it shall be payable monthly in advance; where the contract commences or terminates during the current calendar month, the payment obligation shall be pro rata;
is dependent on the extent of use or other variables, invoicing shall take place after the end of the billing month.

(3) If the customer fails to pay by the due date, interest at a rate of 5% p.a. 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. Other rights of MPOWR 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) MPOWR is entitled, notwithstanding any provisions to the contrary on the part of the customer, 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 effected. If costs and interest have already been incurred, MPOWR is entitled to apply the payment first to the costs, then to the interest and finally to 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 that 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 the provision of security.

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

§ 8 Export controls and embargoes

(1) The goods or services are intended solely for the purposes specified in the individual contract. Unless otherwise agreed in the individual contract, the Customer warrants that the goods or services shall not, either by the Customer or its end customers, form part of any supply or service in connection with any of the following technologies: defence technology, weapons, missiles capable of delivering weapons, and/or nuclear technology.

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

(3) MPOWR may refuse to fulfil the obligations under the individual contract to the extent that such fulfilment is prohibited or impeded by foreign trade restrictions. MPOWR shall inform the customer immediately of such circumstances.

(4) If MPOWR refuses the delivery or service on the grounds of a prohibition on supply and the Customer disputes the existence of such a prohibition, the Customer shall, as far as possible and reasonable, apply to the competent authority for written confirmation that MPOWR’s fulfilment of the obligations under the individual contract does not contravene the foreign trade law applied by the 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 for confirmation from the competent authority 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, provided that 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 laws) 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 shall be governed by Section 22 (“Liability of MPOWR”).

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

in which the Customer is based,
to which the intended delivery or service is to be made, and
through which the intended delivery or service is to be made,

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

§ 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 requires an express written agreement. Where shipment has been agreed, delivery deadlines and dates refer to the time of handover to the forwarding agent, carrier or any other third party commissioned with the transport.

(2) In the event of impossibility of performance or delays in performance due to force majeure or other events unforeseeable at the time of conclusion of the contract – including, 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 suppliers of MPOWR or their sub-suppliers, problems with third-party products (e.g. changes or failures of interfaces of 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 service and the impediment is not merely of a temporary nature, MPOWR shall be entitled to withdraw from the 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 warning of termination, to terminate the relevant individual contract with regard to the part not yet fulfilled. 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) Paragraph 3, sentence 2 shall apply mutatis mutandis if the customer fails to provide a service required under the contract, e.g. fails to provide information, fails to provide access, fails to supply materials or fails 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 Notice of default 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 take effect only after 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 for continuing obligations (e.g. for Software as a Service, agreed flat-rate fees or hardware rental) may be adjusted annually in line with price trends if, since the start of the contract or, in the event of previous changes, since the last adjustment, the Producer Price Index for IT Services published by the Federal Statistical Office has changed by at least one percentage point.

(2) To this end, the party wishing to make an adjustment may, prior to the start of the new contract year, submit a written proposal to the other party regarding the amount of the price adjustment, which, taking into account considerations of fairness, must be based on the development of the Producer Price Index for IT Services published by the Federal Statistical Office; 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, taking into account 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 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) In the event that the other party accepts the proposal or the expert reaches a determination, the new price shall apply – including retroactively – from the first month of the new contract year.

(5) The parties’ rights to adjust or terminate the contract due to 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 limits (e.g. as a result of a pandemic) constitutes a change in the basis of the transaction, 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 is only entitled to set off or withhold payment if the counterclaims due have been legally established, are undisputed or are ready for a decision. However, the Customer shall also be entitled to set off without the further conditions set out in sentence 1 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 of assignment.

§ 13 Materials provided by the customer, royalty-free licences

(1) If the Customer provides materials (e.g. texts, graphics, images, videos, third-party software, including open-source 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 per sentence 1, the Customer shall verify whether the Customer holds the necessary rights to their use within the scope of the Contract, both personally and in relation to the performance of the Contract by MPOWR. Upon request, the Customer shall immediately provide MPOWR with proof of sufficient ownership of rights or the acquisition of sufficient rights.

(2) MPOWR shall not be obliged to verify the Customer’s acquisition of sufficient rights.

(3) The Customer shall indemnify MPOWR against any damage resulting from claims by third parties for infringement of intellectual property rights and other rights, unless the Customer is not responsible for such damage. The Customer shall hold MPOWR harmless from any disadvantages incurred by MPOWR as a result of claims by third parties arising from harmful 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 subject to 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 available under a free licence have been used by MPOWR or are to be used in the 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 available under a free licence and the Customer has had sufficient opportunity to verify the rights clearance.

§ 14 Requests for changes

(1) If the Customer wishes to amend the scope of services to be provided by MPOWR as specified in the contract, 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 review 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 schedule and the previously agreed remuneration. 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, insofar as this is required for the performance of MPOWR’s 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 circumstances to be observed during MPOWR’s work on the Customer’s premises and systems;
provide MPOWR with all necessary information and documents without delay upon request by MPOWR and, without being asked, as soon as the potential relevance becomes apparent to the Customer; this applies in particular to information regarding hardware, software, interfaces and data sets, insofar as these items fall within the Customer’s sphere of control or responsibility and may be relevant to the fulfilment of the contractual services.

(3) Unless otherwise agreed in the individual contract, the Customer shall provide the hardware and software infrastructure required within the Customer’s operational sphere 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 antivirus 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 data and user documentation in a secure location. The Customer shall also expressly instruct its employees and vicarious agents, as well as other users who use the software in accordance with the provisions of the individual contract, to comply with these contractual terms and the provisions of copyright law.

(5) The Customer shall

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, choose a username that does not infringe the rights of third parties, nor any other name or trademark rights, nor violate public policy,
keep the password confidential and under no circumstances disclose it to third parties; the Customer must inform MPOWR immediately if there are indications that their access is being or has been misused by third parties,
to notify MPOWR immediately of any subsequent changes to the data requested.

Paragraph 4, sentence 2 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, address, name, legal form or company name.

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

§ 16 Intellectual Property Rights

(1) Unless otherwise provided for 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 property rights to the items or these are subject to a free licence, MPOWR shall have the corresponding rights of use; in this case, the applicable licence terms shall apply instead.

(3) Insofar as MPOWR has affixed to these items, and in the case of software in particular also 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 consent if there is good cause for the alteration.

(4) MPOWR reserves ownership 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 the express consent of MPOWR, 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 request by MPOWR, 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 lead to the conclusion of a contract.

§ 17 Term and termination of individual contracts

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

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

(4) An individual contract which establishes a continuing obligation under which recurring services and consideration are to be provided, and which contains no information 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 cause remains unaffected. The following, in particular, shall constitute cause for termination by MPOWR:

a breach by the customer of key contractual obligations or a material contractual obligation,
where signs become apparent which give rise to objective doubts as to the customer’s financial capacity,
a significant direct or indirect (e.g. also through contractual agreements, control agreements, trust agreements) change 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 inform MPOWR of any changes without delay,
the unsuccessful expiry of a reasonable grace period set for payment in the event of the Customer’s default, or where the Customer owes payment of a current monthly fee, if the customer is in default of payment of the remuneration or a significant portion thereof for two consecutive payment dates, or is in default of payment of remuneration amounting to two months’ remuneration over a period spanning more than two payment dates,
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 General Terms and Conditions; or
any other material breach of obligations under these General Terms and Conditions.

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

Section 18: Error classes

(1) The parties define the following error classes:

Defect Class 1 — Defects preventing operation

The defect prevents the contractual goods or services from functioning; there is no workaround. Malfunctions in key functions lead to a complete failure.

Defect Class 2 — Defects that impede operation

The defect significantly impedes the operation of the contractual goods or services, but use is still possible through workarounds or with temporarily acceptable restrictions or difficulties. Despite the disruption of a central function, the intended effects can be achieved through a workaround. A less central function is unavailable; although no workaround exists, it is still possible to work effectively with the restrictions. Frequent failures or system crashes, significantly reduced performance.

Defect category 3 — Other defects

Other defects, (cosmetic) defects. Errors in the documentation (where contractually required) that do not cause consequential errors. Defects relating to user-friendliness. Individual functions take too long to execute by current technical standards, without this leading to 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 more than minor restriction of usability, the defects as a whole may constitute a Class 1 or Class 2 defect.

Section 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 are excluded in particular in the case of

contractual relationships for which the law does not provide for claims for defects, such as service contracts;
deliveries and services provided by MPOWR for which the customer owes no consideration;
only minor deviations from the agreed quality and only minor impairments to usability;
impairments resulting from use outside the agreed environmental conditions, incorrect operation, modifications contrary to the contract, faulty transport, faulty installation, faulty storage or the use by the customer of spare parts or consumables that do not comply with the original specifications, or of an item provided by the customer or cooperation rendered by the customer, insofar as MPOWR is not responsible for this;
Defects of which the customer was unaware at the time of conclusion of the contract as a result of gross negligence;
a delivery or service to an area outside the Federal Republic of Germany, as well as in the event that the delivery or service is intended to be resold or used in an area outside the Federal Republic of Germany in accordance with its intended purpose, insofar as the delivery or service in the area in question contravenes technical standards, statutory or other regulatory provisions of which MPOWR was neither aware nor required to be aware; MPOWR is not obliged to examine the particularities of foreign law;
a contract for the supply of used goods. All other statutory or contractual exclusions of claims for defects remain unaffected.

(3) The Customer shall assist MPOWR in the fault analysis and rectification of defects by providing a detailed description of any problems that arise and by keeping MPOWR fully informed. In particular, the Customer shall notify MPOWR of 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 remedy it. In the case of a movable item, the Customer shall, at MPOWR’s discretion, send the item in question to MPOWR for inspection or make it available on-site for inspection.

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

(5) The rectification of the defect may also be carried out on a temporary basis until the final rectification, which must be carried out within a reasonable period, 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 shall accept a new or previous version of the software 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 the additional costs arising from this for the examination of the defect and the rectification of the defect.

(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 rights or factual circumstances, MPOWR shall, at its discretion, either assert its claims for defects against the third party or assign such claims 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. During the duration of the legal dispute, 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 dispute that are recoverable under the relevant cost laws, insofar as the Customer and its legal representatives were entitled to deem such costs necessary under 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 other temporary use, 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 expenses due to a defect that already existed at the time of conclusion of the contract shall only exist if MPOWR is responsible for the defect; liability for initial defects pursuant to 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 insofar as MPOWR has acted fraudulently or has assumed a guarantee for the quality of the item.

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

Section 20: Legal defects

(1) Unless otherwise agreed 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 due to 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 should 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,

modifying or replacing the goods or services in such a way that the legal defect is remedied and this does not result in any reduction in quality, quantity or value and is otherwise reasonable for the customer, or
securing the right of use for the customer by concluding a licence agreement.

(4) The Customer shall notify MPOWR immediately in writing if third parties assert intellectual property rights (e.g. copyright, trade mark or patent rights) in relation to the delivery or service. The customer authorises MPOWR to conduct the dispute with the third party alone. If MPOWR makes use of this authorisation, the customer may not acknowledge the third party’s claims on its own initiative 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 such 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) Section 22 (“Liability of MPOWR”) shall apply to the scope and extent of liability for damages and reimbursement of futile expenses arising from a legal defect for which MPOWR is responsible.

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

Section 21: Supplier’s right of recourse

(1) The statutory provisions governing supplier recourse 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 if the final delivery of the newly manufactured goods is made to a business. Under no circumstances shall the parties apply Section 445a(1) or (2) of the BGB in the event of final delivery to a business operator 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 under 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) ends no later than three years after MPOWR has delivered the goods to the customer.

(2) In all other respects, the statutory provisions on supplier recourse shall remain applicable.

(3) Section 22 (“Liability of MPOWR”) shall apply to the scope and extent of liability for damages and reimbursement of futile expenses.

§ 22 Liability of MPOWR

(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 or 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 is a breach of an essential contractual obligation, the fulfilment of which is essential 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 (so-called “cardinal obligation”). In the event of a breach of such an essential contractual obligation, MPOWR’s liability for simple negligence is limited to damages typical of the contract and foreseeable at the time of conclusion of the contract. However, MPOWR’s liability for 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 of conclusion of the contract.

(4) The above exclusions and limitations of liability in paragraphs 2 and 3 apply, including retroactively, to the same extent to claims arising from the breach of obligations 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 of conclusion of the contract in the event of data loss corresponds to the typical cost of restoration. The typical cost of restoration is measured by the damage that would have occurred had the customer taken 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 favours), 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 shall be 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 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”) apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of MPOWR.

(9) The exclusions and limitations of liability set out in this Section 22 (“Liability of MPOWR”) shall not apply to MPOWR’s liability arising from wilful misconduct, 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 the Customer’s claims against MPOWR is

for claims arising from material defects or defects of title relating to the repayment of the consideration following withdrawal or reduction, one year from the date of delivery of the effective notice of withdrawal or reduction; withdrawal or reduction shall only be effective if declared within the time limit specified in paragraph 2 for material defects or the time limit specified in paragraph 3 for defects of title;
for claims arising from material defects which do not relate to the repayment of the consideration due to withdrawal or reduction, one year;
for claims arising from defects of title which do not relate to the repayment of the consideration due to withdrawal or reduction, two years; if the defect of title consists of an exclusive right of a third party, on the basis of which the third party may demand the surrender or destruction of the items provided to the customer, the statutory limitation period shall apply;
for claims for repayment of the consideration, damages or reimbursement of futile expenses not based on material defects or defects of title, two years.

(2) Subject to any deviating provisions in individual contracts, 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 of paragraph 1(4), 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 limitation period, unless MPOWR has, in exceptional cases, made an acknowledgement within the meaning of Section 212(1)(1) of the German Civil Code (BGB). The limitation period shall expire at the latest upon 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

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

Section 24: Poaching of employees

The customer undertakes not to poach MPOWR employees, either directly or through third parties, or to allow them to be poached, nor to encourage or assist third parties in such poaching activities, for a period of two years following the termination of the contractual relationship.

Section 25 Confidentiality and Data Protection

(1) The Customer undertakes to treat as confidential and not to disclose to any third party the content of 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, unless this is necessary for the performance of the contract or the disclosure 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 compelled disclosure, to the extent lawful, and shall limit the disclosure to the extent necessary. Advisors, auditors, banks or insurance companies bound by confidentiality are not considered third parties. 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 (Art. 32 GDPR) and the obligation of employees to maintain the confidentiality of personal data (Art. 28(3)(b) GDPR). Where data processing on behalf of a controller (Art. 28 GDPR) or joint controllership (Art. 26 GDPR) applies, the Customer shall, at MPOWR’s request, be obliged at any time to conclude a data protection agreement 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 case of 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 excluded by the contractual penalty.

§ 27 No obligation on the part of MPOWR to pay contractual penalties

MPOWR is not obliged to pay any contractual penalty to the customer, regardless of the legal basis. This applies in particular in the event of a default by MPOWR.

II. Software as a Service

§ 28 Subject matter of the contract

(1) Where MPOWR provides the Customer with standard software for access via the iInternetwithin the scope of the agreed availability (Section 31) (“Software as a Service” – SaaS), the specific details – in particular regarding the nature and scope of services, the type and number of licences, and the rights of use granted under the relevant licences – shall be set out in the individual contract.

(2) The Customer shall have no entitlement to the source code. Where documentation is required, this shall be provided within the programme functions via the “Help” menu or a comparable function.

(3) Unless otherwise agreed in the individual contract, MPOWR shall not be obliged to

adapt the software to changing external conditions of a technical, economic or legal nature,
adapt the software to other changing conditions,
or undertake further development with regard to quality and modernity.

The obligation to provide new programme versions, in particular bug fixes and patches, with which existing material defects, in particular security flaws or functional errors, as well as defects of title, are remedied, remains unaffected by this.

(4) MPOWR is only obliged to carry out data backups and recovery services if and to the extent that this is agreed in the individual contract.

Section 29: Commencement of service

(1) MPOWR shall notify the Customer of the date on which access to the standard software subject to a fee will be activated within a reasonable period of time following the conclusion of the individual contract, or, where advance payment has been agreed, following receipt of payment.

(2) The obligation to pay the agreed remuneration shall commence from the date notified by MPOWR. If monthly billing is agreed under the individual contract and the activation date does not fall on the first day of the month, billing for the first and last calendar months shall be pro rata.

(3) If MPOWR is prevented from activating access because the Customer fails to provide the cooperation required under the individual contract, this shall not affect the Customer’s obligation to pay from the date notified by MPOWR.

Section 30: Downloading mobile apps

(1) Where the standard software includes mobile apps, MPOWR shall make these available to the customer for download via the relevant app download platforms (e.g. Google Play Store, Apple App Store).

(2) MPOWR has no influence over the operation of app download platforms provided by third parties. MPOWR therefore neither guarantees the Customer unimpeded access to the app download platform nor assumes responsibility for its availability. MPOWR’s obligations do not extend to the availability of the download options provided by the operator of the app download platform. MPOWR therefore accepts no responsibility for the functionality of the app download platform.

§ 31 Availability of the standard software

(1) MPOWR shall make the standard software available to the customer for use with an average annual availability of 98%. This does not include periods during which the use of the standard software is interrupted or impaired due to necessary maintenance work (Section 32) or for reasons for which MPOWR is not responsible.

(2) MPOWR’s obligations do not include the Customer’s access to the internet or the operation of data lines or data networks forming part of the public internet. MPOWR therefore accepts no responsibility for the functionality of such data networks or data lines to its servers, with the exception of the data lines between its servers and the respective point of connection to the public internet. In particular, MPOWR accepts no responsibility for power failures or for failures of networks or servers insofar as these relate to the public internet.

(3) MPOWR is also not responsible for the content data to be provided by or at the instigation of the customer for the trouble-free functioning of the standard software. Nor is MPOWR responsible for the Customer’s third-party software connected via interfaces. In particular, malfunctions and failures resulting from the failure to provide, or the poor quality of, the content data or the Customer’s connected third-party software, for which MPOWR is not responsible, shall be disregarded when calculating availability.

§ 32 Maintenance work

MPOWR’s regular maintenance window is between 9.00 pm and midnight CET. MPOWR will notify the customer of the exact time and duration of the work, as well as the specific extent of any disruption to service, three working days in advance. In justified individual cases, particularly to address IT security risks, maintenance work may also be carried out outside the regular maintenance window, with a shorter notice period, or without notice. The total duration of maintenance work may not exceed twelve hours per quarter.

Section 33: Response times for rectifying defects

Unless otherwise specified in individual contracts, the parties agree on the following service levels:

Defect Class 1 — Defects preventing operation

1 working day

Defect Class 2 — Defects that hinder operations

3 working days

Defect Class 3 — Other defects

14 working days

§ 34 Updates

(1) MPOWR shall adapt the standard software made available as "Software as a Service" to changing general technical, economic and legal conditions in accordance with the schedule agreed in the individual contract or, in the absence of such a schedule, within a reasonable period in each case, insofar as these changes are material to the contractual use of the software. This obligation shall apply within the limits of MPOWR’s operational and economic capabilities and shall not apply where the adaptation would entail unreasonable effort on the part of MPOWR. Any further development beyond this in terms of quality and modernity shall only be required to the extent agreed in the individual contract.

(2) In particular, there shall be no obligation to adapt the software in accordance with paragraph 1 where changes occur to third-party software provided by the customer or to the configuration of its interfaces which affect or could affect the functionality of MPOWR’s software. The Customer shall notify MPOWR of any such impending changes without delay so that MPOWR can offer the Customer a solution, for which the Customer shall pay a separate fee should MPOWR be commissioned to implement the solution; the parties shall agree on the details in an individual contract.

(3) Subject to any contrary agreement in the individual contract

the obligation to provide updates does not include new versions that feature an extended range of functions or other enhanced performance characteristics, in particular upgrades and major releases; MPOWR may offer the customer the provision of such programme versions at a reasonable price, which shall be based on the scope of the extended functions and features compared to the current programme version;
the provisions regarding the rights of use for the previous programme version shall apply mutatis mutandis to the rights of use for a new programme version.

§ 35 Support

(1) Where the individual contract includes support, MPOWR shall respond to enquiries from the customer and its employees regarding the standard software and how it works.

(2) Support may be limited to a maximum number of hours per month in the individual contract.

(3) Unless otherwise agreed in the individual contract, the following applies to support:

Support is provided via email. Email support is provided within three working days of receipt of the email.
In addition, telephone support may be agreed in the individual contract. This is available on working days from 09:00 to 17:00 (CET).

(4) Further details regarding the nature and scope of support may be agreed in the individual contract, in particular through the agreement of appropriate service levels.

§ 36 Specific ancillary obligations of the customer

(1) The Customer is subject to certain obligations of conduct designed to ensure the proper use of the Software; failure to comply with these obligations may result in adverse consequences, in particular the termination of the individual contract and claims for damages.

(2) In particular, the Customer is obliged not to use the Software in an abusive or immoral manner and to respect the law and the rights of third parties. This includes the following obligations:

Prior to any processing of content data, the Customer shall ensure that they do not process any impermissible content data.
Content data may only contain personal data to the extent that this is strictly necessary to achieve the relevant processing purpose and where anonymisation or pseudonymisation is impossible or unreasonable. If content data contains personal data, the Customer shall comply with all data protection requirements, in particular by providing the data subject with sufficient information about the data processing, obtaining any necessary consent from the data subject, and documenting and retaining evidence of compliance with data protection requirements in a manner that provides a reliable record. The records must be destroyed as soon as they are no longer required. Furthermore, with regard to the content data, the Customer is the “controller” within the meaning of the EU General Data Protection Regulation and is therefore responsible for complying with all other obligations of the controller under the EU General Data Protection Regulation.
Prior to any processing of content data, the Customer shall verify whether the Customer holds the necessary rights to the work (e.g. texts, photographs, images, graphics) as well as to brand names, company names, logos and other trademarks and rights. In the case of photographs, a further check is required to ensure that the necessary consent has been obtained from the persons depicted; processing may not take place without this consent. The Customer grants MPOWR the rights of use necessary to properly provide MPOWR services.
The Customer must refrain from placing an excessive load on MPOWR’s systems through improper use.

(3) The Customer shall compensate MPOWR for any damage resulting from a breach of an obligation under paragraph 2, unless the Customer is not responsible for such damage. The Customer shall indemnify MPOWR against all losses incurred by MPOWR as a result of claims by third parties arising from harmful acts of the Customer for which the Customer is responsible. MPOWR is entitled to demand payment of a reasonable advance towards any legal defence and/or legal advice costs.

Section 37: Suspension, interruption, deletion

(1) MPOWR may temporarily suspend the Customer’s access and/or interrupt the connection between the resources provided to the Customer by MPOWR and the Internet for good cause. Good cause for such suspension or interruption shall be deemed to exist, in particular, if

the Customer breaches any of the obligations set out in Section 36 (“Special ancillary obligations of the Customer”), paragraph 2,
MPOWR is notified by third parties that the customer is hosting or distributing unauthorised content, provided that the allegation of an infringement is not manifestly incorrect, or
the customer, insofar as the service is provided to them for a fee, is in default of payment of the fee or a significant portion thereof. In the cases referred to in sentence 2, nos. 1 and 2, MPOWR may, instead of suspending the service, temporarily block or permanently delete the relevant content data. The obligation to continue paying the fee remains unaffected in the case of a service provided to the customer for a fee, unless the customer is not responsible for the blocking, suspension, or deletion.

(2) The blocking of access, the suspension of the connection, and the blocking and deletion of content data are only permissible after the unsuccessful expiry of a deadline set for remedial action or following an unsuccessful warning. The setting of a deadline for rectification and a warning are dispensable in the event of a definitive refusal to perform or if other special circumstances exist which, upon weighing up the interests of both parties, justify the action in question.

(3) Insofar as the service is provided free of charge, MPOWR may temporarily block the customer’s access at any time and/or interrupt the connection of the resources made available to the customer by MPOWR to the Internet. Instead of an interruption, MPOWR may temporarily block or permanently delete the content data concerned. In doing so, MPOWR shall take the users’ interests into account in an appropriate manner and, at the user’s request, shall communicate the reasons for the measure. The user shall always store all data required by them separately so that they may continue to use it even after the free service has been discontinued.

(4) Further claims and rights of MPOWR, in particular regarding the discontinuation of the service, termination and compensation for damages, remain unaffected.

III. Sale of goods

§ 38 Subject matter of the contract

(1) Where MPOWR sells goods to the customer, including those manufactured to the customer’s specifications (e.g. hardware or software), the specific details, in particular regarding the nature of the goods and the scope of services, shall be set out in the individual contract.

(2) Where a user manual or other documentation is required in connection with the delivery of goods, such documentation shall be provided in a standard file format (e.g. PDF, Word, TXT), unless otherwise agreed in the individual contract.

(3) Other services relating to hardware, in particular the assembly, installation, configuration and maintenance of the hardware, are only to be provided if this is specified in the individual contract.

§ 39 Delivery, transfer of risk, allocation of costs, partial delivery, retention of title

(1) Unless otherwise agreed (e.g. in accordance with INCOTERMS) in the individual contract, all deliveries shall be made at the customer’s risk and expense in accordance with the terms of a sale by delivery. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer as soon as MPOWR hands the goods over to the person designated to carry out the transport.

(2) Insofar as the details of the delivery are not specified in the individual contract, MPOWR is entitled to determine the method of dispatch itself, in particular the carrier, packaging and route of dispatch. Shipping is generally only available within the European Union. If, in individual cases, goods are shipped to a country outside the European Union, the customer is responsible for ensuring proper customs clearance upon import and shall bear the costs thereof and all other costs associated with the import.

(3) MPOWR is entitled to make partial deliveries if the partial delivery is usable by the customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and this does not result in any significant additional effort or costs for the customer, unless MPOWR agrees to bear these costs. This shall not affect the Customer’s statutory rights regarding timely delivery.

(4) Delivered goods shall remain the property of MPOWR until full payment has been made by the Customer.

Section 40: Take-back of special packaging

The customer is entitled to return transport packaging and other special packaging within the meaning of Section 15(1), first sentence, of the Packaging Act (VerpackG) to MPOWR. Unless otherwise agreed in the individual contract, the place of return is MPOWR’s registered office. The customer shall bear the costs of returning the packaging. The customer shall agree in advance with MPOWR on the date and method of return. MPOWR shall reuse the returned packaging or dispose of it properly. Sentences 1, 2, 3, 4 and 5 shall apply mutatis mutandis if MPOWR’s obligation to take back packaging arises from a comparable legal provision (e.g. a foreign law applicable in a specific case).

Section 41 Duty to inspect and raise objections

The Customer’s claims for defects are subject to the Customer having fulfilled their statutory obligations to inspect the goods and give notice of defects (Sections 377 and 381 of the German Commercial Code (HGB)). In the case of goods intended for installation or further processing, an inspection must in any event be carried out immediately prior to processing. Should a defect become apparent upon delivery, during inspection or at any later point in time, MPOWR must be notified of this in writing without delay. In any event, obvious defects must be notified in writing no later than the 10th calendar day following delivery, and defects not detectable upon inspection must be notified in writing within the same period following discovery. If the customer fails to carry out the proper inspection and/or to notify MPOWR of defects, MPOWR’s liability for defects not notified, or notified late or improperly, is excluded in accordance with the statutory provisions.

Section 42 Disposal of waste electrical and electronic equipment

Insofar as MPOWR is obliged under the German Electrical and Electronic Equipment Act (ElektroG) to ensure the proper disposal of end-of-life equipment, this obligation shall be borne by the customer. The customer shall dispose of goods purchased from MPOWR at their own expense, in accordance with and in compliance with the relevant legal provisions. MPOWR does not take back waste equipment or provide facilities for the return of waste equipment within the meaning of the ElektroG. The customer hereby releases MPOWR from all obligations arising from Section 19 of the ElektroG. Sentences 1, 2, 3 and 4 shall apply mutatis mutandis if MPOWR’s obligation to properly dispose of waste equipment arises from a comparable legal provision (e.g. a foreign law applicable in a specific case).

IV. Hardware Rental

§ 43 Subject matter of the contract

(1) Where MPOWR provides the customer with hardware for temporary use (hardware hire), the specific details – in particular regarding the nature of the hardware, the scope of services and any installation – are set out in the individual contract.

(2) Clause III, Section 38 (‘Subject Matter of the Contract’), paragraph 2 applies mutatis mutandis.

§ 44 Specific ancillary obligations of the customer

(1) Unless otherwise agreed in the individual contract, the Customer is not entitled to use the hardware outside the Customer’s premises or to make it available to third parties, in particular to sublet it.

(2) The Customer shall treat the hardware with the care of a prudent businessman. In particular, the Customer shall ensure, and shall take steps through appropriate instruction or training, that its employees and vicarious agents use and operate the hardware in accordance with the contract.

(3) Subject to any contrary agreement in the individual contract, the Customer undertakes to insure the hardware adequately against damage, destruction and theft and to provide evidence of the conclusion and validity of the electronics insurance upon request by MPOWR.

(4) The Customer must notify MPOWR immediately of any damage, destruction or theft of the hardware.

(5) Insofar as MPOWR has provided the hardware in packaging, Clause III. § 40 (“Return of special packaging”) shall apply mutatis mutandis.

§ 45 Obligation to return the hardware

(1) The customer is obliged to return the hardware, including any documentation and other accessories provided, to MPOWR at the end of the rental period.

(2) Prior to returning the hardware, the customer must permanently remove any software installed by the customer and any stored data from the hardware, insofar as this is possible and reasonable for the customer to do so.

(3) Shipment shall be at the customer’s expense and risk and only with MPOWR’s prior written consent.

V. Programming, consultancy and/or support services provided under a service contract

§ 46 Subject matter of the contract

Where MPOWR provides the customer with programming, consultancy and/or support services under a service contract, including the delivery of workshops, briefings and training sessions, the specific details – in particular regarding the scope of services – are set out in the individual contract.

§ 47 Implementation and Rights

(1) MPOWR shall provide services under the service contract, in particular, where MPOWR is contractually obliged to provide the service itself, as is the case, for example, when collaborating on larger projects under the client’s direction. MPOWR is not obliged to produce a specific work or otherwise achieve a specific result. The client, in particular its project manager, bears overall responsibility for the project's technical, timely, and budget-compliant implementation.

(2) If results of the service arise in the course of the provision of services under the service contract, the specific scope of the right of use shall be determined by the individual contract or, failing that, by the purpose of the service contract. The acquisition of the right of use is subject to the condition precedent of full payment of the remuneration due.

(3) MPOWR is not obliged to check the results of the services for any conflicting industrial property rights or other intellectual property of third parties.

(4) Documents, proposals, test programmes and other items belonging to MPOWR in connection with the services under the service contract, which are made available to the customer before or after the conclusion of the contract, shall be deemed, in the relationship between the parties, to be the intellectual property and trade and business secrets of MPOWR. Unless otherwise provided for in the foregoing, they may not be used in any manner whatsoever without the written consent of MPOWR and must be kept confidential in accordance with Section I. § 25 (“Confidentiality and Data Protection”). In all other respects, Section I. § 16 (“Property Rights”), paragraphs 3 and 4, shall apply mutatis mutandis.

(5) Unless expressly agreed otherwise in the individual contract, all deliveries and services going beyond the mere contractual performance of MPOWR are excluded. In particular, the Customer shall provide all materials relating to the service (e.g. texts, graphics, images, videos, third-party programmes, including free licences) in accordance with Section I. § 13 (“Materials provided by the Customer”).

VI. Miscellaneous provisions

§ 48 Exclusions from cover

(1) The scope of services under an individual contract concluded on the basis of these General Terms and Conditions specifically excludes

all services performed at the customer’s request outside normal business hours, unless the contractually agreed service is to be provided outside normal business hours;
all services performed at the customer’s request at a location other than MPOWR’s registered office;
fault rectification after the end of the warranty period and outside the scope of a hardware maintenance and support contract;
work and services rendered necessary by improper use by the customer, regardless of whether this was caused by the customer, their vicarious agents or other persons within the customer’s sphere of influence;
work and services rendered necessary by force majeure or other circumstances for which MPOWR is not responsible;
work and services resulting from changed or new individual usage requirements of the customer;
Work and services relating to hardware and software are not covered by the contract;
Work and services triggered by the customer or their agents using MPOWR’s IT systems to an extent exceeding the usual level, e.g. frequent bulk sending of documents, continuous full-synchronisation exports and the effects of such use, such as, in particular, increased data traffic, increased utilisation of storage space and computing power on the servers, increased utilisation of networks and data lines, as well as additional expenditure on labour and personnel by MPOWR, are not included unless specifically provided for.

(2) The services referred to in paragraph 1 shall be provided only on the basis of a separate agreement in the individual contract and only in return for separate remuneration. Separate remuneration shall not be payable unless expressly stipulated in the individual contract.

Section 49: Reference designation

MPOWR is entitled to include the customer’s company name and logo, as well as a brief description of the project, in reference lists and to publish and distribute these on the internet, in print media, during presentations or for other factual information purposes. Unless otherwise agreed, any use beyond this is not permitted.

Section 50 Notifications and declarations

(1) Unless otherwise provided, the written form as defined in Section 126b of the German Civil Code (BGB) (e.g. email) is sufficient, but also required, for the validity of declarations and notifications. However, declarations for which these General Terms and Conditions or the law expressly require it must be in writing (Section 126 of the German Civil Code (BGB)), whereby transmission by telecommunication is sufficient to meet the deadline if the recipient receives the original written declaration without delay.

(2) Subject to proof to the contrary, an email shall be deemed to originate from the other party if the email contains the sender’s name and email address, as well as a reproduction of the sender’s name at the end of the message.

§ 51 Contact person

(1) In the individual contract, each party shall designate a contact person and a deputy who, within the scope of the powers of representation granted to them under the individual contract, may take decisions or arrange for them to be taken at short notice and provide information. Unless otherwise specified in the individual contract, the powers of representation of the contact persons and their respective deputies shall, in cases of doubt, be limited to making decisions to define or specify the services agreed in the individual contract, commissioning changes and extensions to the agreed services, rescheduling non-binding or binding deadlines, and providing binding information.

(2) Either party must notify the other party without delay of any changes to the designated contact persons and/or their deputies. Until such notification is received, the previously designated contact persons and/or their deputies shall be deemed authorised to make and receive declarations within the scope of their existing authority to act on behalf of the party.

Section 52 Transfer of Rights and Obligations

MPOWR may transfer all rights and obligations under the individual contract to third parties at any time. The customer may object to the transfer within one month if the transfer would prejudice the customer’s legitimate interests, for example, because the transferee is a direct competitor of the customer, does not possess the necessary knowledge and qualifications, or there are reasonable doubts as to its financial standing.

§ 53 Final provisions

(1) These General Terms and Conditions, as well as all individual contracts concluded under them, are governed exclusively by the laws of the Federal Republic of Germany.

(2) If the customer is a trader, a legal entity under public law or a special fund under public law, or if the customer has no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising in connection with individual contracts concluded under these General Terms and Conditions shall be the registered office of MPOWR. For actions brought by MPOWR against the customer, any other statutory place of jurisdiction shall also apply. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by the above provisions.

(3) The agreements on the place of jurisdiction pursuant to paragraph 2 shall be governed exclusively by the law of the Federal Republic of Germany.

(4) Legal proceedings may only be brought once the parties have attempted to reach an out-of-court settlement. To this end, the parties shall agree on a neutral third party to act as a mediator. The limitation period for all claims arising from the disputed facts of the case shall be suspended from the initiation of the attempt at settlement by one party until the end of the mediation. Section 203 of the German Civil Code (BGB) shall apply mutatis mutandis. Urgent court proceedings or the filing of a lawsuit to interrupt a statutory limitation period that cannot be extended by agreement between the parties shall remain permissible at any time.

(5) Insofar as the individual contract concluded with the customer on the basis of these General Terms and Conditions contains gaps in its provisions, those legally effective provisions shall be deemed to have been agreed to fill such gaps which the parties would have agreed upon in accordance with the economic objectives of the individual contract had they been aware of the gap.

I. General Provisions

§ 1 Scope

§ 2 Definition

§ 3 Individual contract

§ 4 Scope of MPOWR’s services

§ 5 Place of performance by MPOWR

§ 6 Remuneration, incidental costs

§ 7 Payment and Default

§ 8 Export controls and embargoes

§ 9 Dates, deadlines and impediments to performance

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

§11 Price changes in ongoing contractual relationships

§ 12 Set-off, retention and assignment

§ 13 Materials provided by the customer, royalty-free licences

§ 14 Requests for changes

§ 15 General ancillary and cooperation obligations of the customer

§ 16 Intellectual Property Rights

§ 17 Term and termination of individual contracts

Section 18: Error classes

Defect Class 1 — Defects preventing operation

Defect Class 2 — Defects that impede operation

Defect category 3 — Other defects

Section 19: Material defects

Section 20: Legal defects

Section 21: Supplier’s right of recourse

§ 22 Liability of MPOWR

§ 23 Limitation period for the customer’s claims

Section 24: Poaching of employees

Section 25 Confidentiality and Data Protection

§ 26 Contractual penalty

§ 27 No obligation on the part of MPOWR to pay contractual penalties

II. Software as a Service

§ 28 Subject matter of the contract

Section 29: Commencement of service

Section 30: Downloading mobile apps

§ 31 Availability of the standard software

§ 32 Maintenance work

Section 33: Response times for rectifying defects

Defect Class 1 — Defects preventing operation

Defect Class 2 — Defects that hinder operations

Defect Class 3 — Other defects

§ 34 Updates

§ 35 Support

§ 36 Specific ancillary obligations of the customer

Section 37: Suspension, interruption, deletion

III. Sale of goods

§ 38 Subject matter of the contract

§ 39 Delivery, transfer of risk, allocation of costs, partial delivery, retention of title

Section 40: Take-back of special packaging

Section 41 Duty to inspect and raise objections

Section 42 Disposal of waste electrical and electronic equipment

IV. Hardware Rental

§ 43 Subject matter of the contract

§ 44 Specific ancillary obligations of the customer

§ 45 Obligation to return the hardware

V. Programming, consultancy and/or support services provided under a service contract

§ 46 Subject matter of the contract

§ 47 Implementation and Rights

VI. Miscellaneous provisions

§ 48 Exclusions from cover

Section 49: Reference designation

Section 50 Notifications and declarations

§ 51 Contact person

Section 52 Transfer of Rights and Obligations

§ 53 Final provisions

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