By means of the terms and conditions below, Damovo Deutschland GmbH & Co. KG, hereinafter referred to as “Damovo”, and its contract partner, hereinafter referred to as the “Customer”, govern their legal relations, subject to individual contractual provisions. The General Terms & Conditions constitute a part of the contract coming into existence between the parties (the “Contract”).
1.1 Terms and conditions of or deviating counter-confirmations by the Customer are not binding for Damovo, even if they are not expressly objected to; for their legal validity they require Damovo’s express written acknowledgement. The written order confirmation by Damovo is exclusively authoritative for the determination of the contract content.
1.2 These Terms & Conditions also apply to all consequential transactions between the parties.
2.1 The prices are valid ex works, excluding packaging plus VAT in the respectively valid statutory amount. Packaging costs are invoiced for at 2% of the order value.
2.2 Prices are always calculated in Euro. If the contract includes the provision of goods, licenses or services to be procured by Damovo and Damovo purchases these goods, licenses or services in a currency other than Euro, the following shall apply: If the price of the goods, licenses or services to be procured for Damovo increases by more than 3% due to a depreciation of the euro against the respective foreign currency value of the ordered goods, licenses or services at the time of the conclusion of the contract with the customer, Damovo has the right to adjust the prices accordingly to compensate for the higher purchase prices, taking into account the legitimate interests of the customer. The price can be adjusted at the end of each month with effect for the future. In the reverse case of the value gain of the Euro against the foreign currency, the customer is entitled to a corresponding right to a price adjustment. A new adjustment shall only be permissible if the prices of the goods, licenses or services to be procured change again by more than 3% compared to the last price adjustment made.
2.3 Payments are to be made immediately and without any discount free to Damovo point of payment. If partial deliveries are made, then the partial purchase price is due after each delivery.
2.4 Damovo is entitled to demand from the Customer an advance payment of one third of the total order value upon the order being placed, one third upon delivery and one third upon putting into operation.
2.5 In the event of default of payment, Damovo is entitled to levy default interest in the amount of 8% above the respective basic interest rate pursuant to § 247 of the German Civil Code. In addition, Damovo can levy a processing fee in the amount of EUR 8 per reminder. The bringing of a claim for more extensive loss remains unaffected.
2.6 The Customer can only set off counter-claims against Damovo’s claims if the former are legally-valid and non-appealable or if they have been expressly acknowledged by Damovo. The same correspondingly applies regarding the Customer invoking a right of retention.
2.7 All payments are made in Euros or in the respective lawful currency of the Federal Republic of Germany.
3.1 Damovo is entitled to make partial deliveries and render partial services.
3.2 The bases of the quoted estimated delivery date are the delivery times valid at Damovo.
3.3 If Damovo does not receive deliveries or services in a timely manner from the manufacturer which are necessary in order to fulfil the obligations arising out of this Contract which are owed to the Customer, despite timely and correct ordering of those deliveries or services, and such failure is not attributable to Damovo, then Damovo has the right to release itself from its performance obligation. In such case, Damovo will inform the Customer without undue delay of the non-availability and reimburse the Customer for the pertinent part of any amounts which have already been paid.
3.4 If Damovo does not make use of the right to rescind in a case named in number 3.3 above, Damovo shall not be in delay regarding the Customer if Damovo endeavours in a timely manner to obtain an alternative supply of the delivery or service necessary and not received in a timely manner.
4.1 If the software maintenance is ordered directly by the customer within the scope of the purchase contract, the section 2.2 of the General Terms and Conditions for Maintenance and Software Maintenance shall also apply.
5.1 If no agreement to the contrary has been entered into through individual contract , the installation of the delivery object does not constitute an object of Damovo’s delivery obligation. The Customer will instruct Damovo with the installation in such case.
5.2 The calculation takes place in accordance with time and expenditure on the basis of the respectively-valid Damovo price lists for services and material expenditure.
5.3 The Customer is obliged to confirm in writing the acceptance of the installation service. If the Customer does not submit the acceptance confirmation or if the acceptance cannot be executed by Damovo due to reasons which are attributable to the Customer, the acceptance shall be deemed to have occurred as of the date of the acceptance offer, unless the installation service does not correspond to the contractual agreements.
5.4 The customer undertakes to design his plant rooms or system locations, in particular rooms in which integrated battery systems or UPS systems are used, in such a way that they comply at least with the respective legally valid specifications according to DIN EN 50272-2, VDE 0150-2-2001-12.
5.5 The customer acknowledges that Damovo is dependent on the comprehensive cooperation of the customer for a successful and timely performance of the services incumbent upon it. Therefore, the Customer undertakes to provide all information services and infrastructure services necessary for the proper performance of the services by Damovo in a timely and complete manner. Any delays caused by the Customer's failure to comply with its obligations to cooperate in a timely manner or not in full shall be borne by the Customer. Execution deadlines are automatically extended by the period of the delay.
5.6 If dates agreed upon between the customer and Damovo are not only shifted insignificantly by the customer or stopped at the request of the customer, Damovo is entitled to invoice services already rendered, taking into account the interests of the customer, in deviation from a possibly agreed payment plan. This applies in particular if the payment plan is also postponed by the date postponements not only insignificantly.
5.7 If the customer has ordered real-time monitoring within the scope of this contract, the following shall apply:
Damovo is not responsible for compliance with Microsoft's licensing policies with respect to customer assets. Regardless of the operating system, the customer agrees to license all devices and endpoints that are monitored by a monitoring application or accessed through a remote application based on a Microsoft Windows Server operating system with Microsoft Device CAL, unless they are already covered by another Microsoft license, based on Microsoft's license terms. If Windows 10 Professional is used as operating system for the remote and/or local probe, the Device CAL licensing requirement does not apply. The customer is responsible for complying with the Microsoft license guidelines within the scope of the customer's own assets.
6.1 The delivery objects remain in the ownership of Damovo until fulfilment of all of the -–including future – claims to which Damovo is entitled against the Customer arising out of the business relationship. In the event of a processing or combination of the goods subject to the retention of title in the sense of §§ 947 and 950 of the German Civil Code with other items, which do not belong to Damovo, Damovo will be entitled to a co-ownership share in the new item in the amount of the price – including VAT – invoiced to the Customer. If the value of all security rights to which Damovo is entitled exceeds the amount of all of the secured claims by more than 20%, then at the wish of the Customer, Damovo will release a corresponding part of the security rights at its own discretion.
6.2 During the existence of the retention of title, the Customer is forbidden from pledging or a transfer by way of security, and onward sale is only permitted to onward sellers in the usual course of business in exchange for cash payment or subject to retention of title.
6.3 If the Customer sells the delivery objects on, then it hereby assigns its future claims arising out of the onward sale against its customer with all ancillary rights for the purpose of security, without this requiring any subsequent special declarations. In the event that the Customer’s claims arising out of the onward sale are put into a current account, the Customer hereby also assigns its claims out of the current account against its customers to Damovo. Damovo hereby expressly declares that this assignment agreement does not constitute permission by Damovo regarding invalid disposal by an unauthorised party in the sense of § 816 I of the German Civil Code.
6.4 In the event of culpable breach of fundamental contractual obligations by the Customer, in particular default of payment, the Customer will be obliged upon first demand by Damovo to return the goods subject to the retention of title. The invoking of this return claim by Damovo shall not be deemed as rescission of contract unless Damovo has expressly declared this. After prior threat, Damovo is entitled to utilise the goods subject to the retention of title and taken back, and to satisfy itself subject to setting off their proceeds against the open claims.
6.5 In the event of levies of execution, seizures or other acts of disposal or encroachments by third parties, including through compulsory measures with regard to the real properties on which the delivery objects are located, the Customer is obliged to inform Damovo without undue delay. All replacement claims which might accrue to the Customer through the access by third parties to the goods subject to the retention of title are hereby assigned to Damovo. The Customer bears the costs of all measures concerning the elimination of encroachments of this kind.
7.1 The risk is transferred to the Customer at the latest upon dispatch of the parts being delivered from the dispatch location. This also applies even if partial deliveries are being made or if Damovo has taken over other services (e.g. dispatch costs, delivery, installation).
8.1 After the arrival of the purchase item, the Customer is obliged to examine it without undue delay for transport damage, defects and condition. It is obliged to complain to Damovo in writing without undue delay regarding obvious defects and transport damage.
8.2 If there is a defect in the purchase item which is attributable to Damovo, Damovo is obliged to effect subsequent performance unless an entitlement to refusal of that subsequent performance arises under the statutory provisions. In the context of subsequent performance, Damovo is also entitled – according to its discretion – to remove the defect (rectification of defects) or to deliver a new purchase item. Provided that Damovo fulfils its obligation regarding subsequent performance, the Customer does not have the right to demand reduction of the purchase price (Minderung) or to declare rescission of the Contract. If the subsequent performance fails, in the event of a rectification of defects, the subsequent performance shall be deemed to be unsuccessful only after Damovo’s second unsuccessful attempt, or, if Damovo refuses to effect subsequent performance, then the Customer is entitled to demand – according to its choice –reduction of the purchase price (Minderung) or the declare rescission of the Contract.
8.3 If the defective item is software which was coded or configured according to particular specifications of the Customer and which exhibits and increased degree of complexity, the Customer grants Damovo at least two further attempts at rectification of defects beyond those attempts detailed in number 8.2 above.
8.4 Damovo is entitled to the possibility provided for in numbers 8.2 and 8.3 respectively regarding rectification of defects, including the respectively the reindetailed number of attempts, separately for each one of the defects reported by the Customer.
8.5 Damovo has to bear all of the expenditure necessary for the purpose of the subsequent performance, in particular transport, home-to-office, work and material costs, insofar as these do not increase by virtue of the fact that the purchase item is taken to a location other than the place of performance. The Customer, however, will make available for no charge the technical equipment (including telephone connections) at its disposal.
8.6 If the Customer has made use of its rescission right and if the Contract affected by the rescission also encompassed the delivery of Software, then the Customer is obliged to return to Damovo the respective data carrier with the software as well as the accompanying documentation, and to destroy all potential copies.
8.7 The warranty period amounts to twelve months. The period of limitations commences upon arrival of the purchase item at the Customer or acceptance of the purchase item by the Customer, as applicable.
In the case of the delivery of software, the claims arising from defects relate to the first delivery of the software to the Customer. If the Customer is granted further or other usage rights in the software by Damovo (e.g. additional workstation licences), then the guarantee period will neither be prolonged nor will it start anew thereby.
8.8 If in the framework of its claims arising from defects the Customer is able to make claims for damages, these are subject to the limitations of liability pursuant to number 9 below. Otherwise, liability to pay compensation is hereby excluded.
9.1 Damovo is liable regardless of the following limitations of liability in an unrestricted manner pursuant to the statutory provisions for loss of life, personal injury or damage to health which is due to an intentional or grossly negligent breach of duty of Damovo itself, its legal representatives or vicarious agents for loss or damage which is covered by the liability pursuant to the German Product Liability Act, as well as for all damage or loss which is due to intentional or grossly negligent breaches of contract, as well as bad faith. If Damovo has given a condition and/or durability guarantee with regard to the contractual object or parts thereof, Damovo is also liable in the framework of that guarantee. For damage or loss which is due to the lack of the guaranteed condition or durability, but does not arise directly in the contractual object, however, Damovo is only liable if the risk of such damage or loss is obviously included in the condition and durability guarantee.
9.2 Damovo is also liable for damage or loss which is due to intentional or grossly negligent behaviour by its legal representatives, executive employees and simple vicarious agents.
9.3 Damovo is also liable for damage or loss which is caused through simple negligence, insofar as the negligence pertains to the breach of such contractual obligations whose compliance is of particular importance for the achievement of the contractual purpose (cardinal obligations). At all events, in cases of negligent behaviour Damovo is liable only to the extent that the damage or loss is foreseeable and typically associated with the Contract. In the case of minor negligent breaches of non-fundamental contractual obligations by simple vicarious agents, Damovo will not be liable. The limitations of liability contained in sentences 1 – 3 above also apply insofar as Damovo’s liability for its legal representatives, executive employees and other vicarious agents is affected.
9.4 Insofar as Damovo’s liability is excluded or limited, this also applies for the personal liability of Damovo’s employees, workers, representatives and vicarious agents.
9.5 The liability for loss of data is limited to the typical restoration effort which would have occurred in the case of regular and risk-appropriate production of backup copies.
9.6 Damovo is not responsible for the checking of the networks and devices provided by the Customer for electro-magnetic compatibility pursuant to the EMVG and does not assume any costs which result from potential breaches of the EMVG.
9.7 Damovo shall not be liable for any damages resulting from the Customer's failure to comply with its obligations under clause 5.4
9.8 For damage or loss which is caused through misuse of the products which are contractual objects Damovo is only liable if intentional or grossly negligent behaviour on the part of Damovo is proven.
9.9 If the Customer suffers loss due to the culpable exceeding of a fixed agreed delivery date or hand-date by Damovo, then in the case of only simple negligence it is entitled – subject to exclusion of further claims – to demand flat-rate compensation. The compensation amounts to 0.5% for every full week of the delay; however, in total not more than 5% of the value of the delivery or partial delivery in delay. This limitation does not apply in the case of the intentional or grossly negligent causing of the loss by Damovo.
If in the framework of this Contract or otherwise, computer programmes as well as the documentation belonging thereto (hereinafter referred to as “Software”) are handed over to the Customer by Damovo, the following provisions, which take precedence over all conditions potentially contained inside the packaging unless the latter contain more stringent restrictions, apply:
10.1 Damovo thereby grants the Customer a non-exclusive and temporally-unlimited licence to use the Software handed over to the Customer on the hardware delivered by Damovo or the hardware for which the Software was delivered, in accordance with the following provisions. The Customer is not entitled to configure the Software for more than the number of objects for which the Customer has purchased a licence. The term “objects” in the above sense encompasses, inter alia, installations, users, connections, agents and ports.
10.2 In addition, the rights and obligations of the Customer with regard to the Software are based on the pertinent provisions of the German Copyright Act (1st Part, 8th Section: Particular Provisions for Computer Programmes), insofar as nothing to the contrary is stipulated in this number 10. Without separate, express written permission, the Customer is particularly forbidden from doing the following:
10.3 The Customer is only entitled to sell the Software products to a third party when relinquishing its own use. With the sale, the Customer’s usage right is transferred to the third party. All of the copies supplied to the Customer and/or produced by it are to be handed over to the third party or to be deleted. The Customer is obliged to disclose the third party’s name and the address to Damovo. The recipient may not be granted a more extensive usage right than that stipulated here.
10.4 Damovo holds the Customer harmless from any third party claims which arise out of or due to a breach of trademark rights and copyright through the normal use or possession of the Software, provided that the Customer
10.5 The indemnity obligation contained in number 10.3 does not apply to cases where Damovo did not know of the existence of trademark rights or copyright of third parties when entering into the Contract, and this lack of knowledge is not due to fault on the part of Damovo, either. The indemnity obligation is also excluded if a breach of third-party rights is to be attributed to the fact that the Customer has used the Software in association with equipment or material not approved or delivered by Damovo, or if the Customer has made changes to the Software without Damovo’s prior written consent.
10.6 In the event of a breach or alleged breach of third-party trademark rights or copyright, Damovo is entitled to modify or exchange the pertinent Software if the entire performance of the Software is not impaired thereby.
10.7 All of the rights in the Software inclusive of the copyright and other industrial property rights remain with Damovo or with its licensor. The Customer acquires only the rights in the Software granted through these licence conditions. The Customer undertakes not to remove the copyright notice or other information regarding industrial property rights from the Software, and to affix the same to all backup copies.
10.8 In the event that the Customer breaches the above-detailed licence conditions, Damovo has the right to revoke the licence. In such case, the Customer is obliged to destroy the Software, including all copies, without undue delay. The Customer can bring the licence to an end at any time through destruction or return of the Software and all of the copies made.
10.9 If the respective manufacturer only grants Damovo a lesser scope of rights for licensing to the Customer than that contained in numbers 10.1 and 10.3, the scope of the rights granted by the manufacturer is also authoritative in the relationship between Damovo and the Customer. Upon request, Damovo has to give the Customer corresponding information and to provide evidence of this in the event of dispute.
The following provisions only apply if and insofar as the Customer purchases communications products for telephony via the so-called Internet protocol (IP Telephony) from Damovo, or such communications products which can use the Internet protocol as a transport medium between de-central and not directly-linked parts of a telecommunications facility (IP Transport Medium). Both applications are identically referred to in the following as IP Telephony.
11.1 The speech information is digitised or compressed, compiled and broken down into IP data packets by the IP telephone or the communications server. These data packets are forwarded via the Customer’s IT network and/or via the Internet/Intranet to the recipient, reassembled there, if necessary decompressed and reconverted into analogue acoustic signals again.
11.2 With regard to IP Telephony products and services, Damovo warrants the flawlessness of the deliveries and services in accordance with these General Terms and Conditions. Every IP communications solution, including the IP Telephony, however, is based on the Customer’s existing network infrastructure. The Customer is aware that delays and data loss, which can impair the IP Telephony’s functionality, can occur in particular if the Customer’s network infrastructure does not have sufficient capacity and/or configuration. Accordingly, the functionality of the IP Telephony can be disturbed, even if all of the hardware and software components supplied by Damovo are flawless.
The functionality of the IP Telephony components supplied thus assumes that the Customer’s entire network infrastructure, including each network component, has the necessary technical specifications which Damovo supplies in writing. The assessment as to whether its network infrastructure fulfils the technical requirements and specifications is solely the responsibility of the Customer.
11.3 Damovo only warrants the functionality of the IP Telephony in the Customer’s network if
In the case of the review and gauging order, the Customer undertakes to operate the network at maximum data-load during this several-day gauging process. Only thus is Damovo in the position to gauge whether the remaining capacity of the network is sufficient to guarantee the IP’s Telephony functionality. The gauging result is recorded by Damovo and archived both at Damovo and also at the Customer. In any event, the Customer must ensure that within its network infrastructure the speech information of the IP Telephony always has the top priority.
11.4 If the scope of the IP Telephony is to be expanded in future, this can lead to increased requirements of the Customer’s network infrastructure. If these are not fulfilled, disruptions in the functionality of the IP Telephony can occur. The provisions contained in § 11.3 accordingly apply to any expansion of the IP Telephony correspondingly, because, like the review of the network infrastructure pursuant to § 11.3 2nd alternative, the specification of the network requirements pursuant to § 11.2 refers to the scope of the IP Telephony ordered from Damovo in a binding manner.
11.5 Also in the case of a subsequent, different change of the network infrastructure or the usage intensity of the Customer’s network, impairments of the speech and/or transmission quality, as well as the availability of the IP Telephony can occur. Also the subsequent installation of network components, software, applications or similar can be associated with such a subsequent change which is detrimental to the IP Telephony. Upon separate order, Damovo will also review the compatibility of such subsequent changes with the IP Telephony. Only if this review has confirmed the compatibility of the changes with the IP Telephony will Damovo warrant the unimpaired continued existence of the functionality of the IP Telephony.
12.1 Insofar the goods supplied fall under the area of application of the Electrical and Electronic Devices Act (ElektroG), the Customer undertakes to only use or deploy the supplied goods in the framework of the exercise of its commercial activity.
12.2 The Customer assumes the obligation to properly dispose of the supplied goods after they have ceased being used, at its own cost, in accordance with the statutory provisions. The Customer will release Damovo upon first request by the latter from the obligations pursuant to § 10.2 of the ElektroG (manufacturer’s obligation to take the goods back) and any third-party claims associated therewith.
12.3 The Customer is obliged to impose a contractual obligation on commercial third parties to which it passes the supplied goods on, pursuant to which those commercial third parties are obliged to properly dispose of those supplied goods after they have ceased being used, at those commercial third parties' own cost, in accordance with the statutory provisions.
12.4 In the event of the goods being handed on again, the Customer is obliged to impose a corresponding onward obligation in the sense of number 12.3 hereof on the pertinent third party.
12.5 If the Customer fails to impose such an onward obligation, then the Customer will be obliged to take back the supplied goods after they have ceased being used, at the Customer's cost, and to dispose of them properly.
12.6 Damovo’s claim for take-over/release by the Customer will not become time-barred before the expiry of two years after the final cessation of the use of the goods supplied. That period will commence running at the earliest upon receipt of a written notification by the Customer to Damovo about the cessation of use.
12.7 The Customer is obliged to provide evidence to Damovo upon first request by the latter of the fulfilment of the obligations set out in number 12.1 to number 12.4 hereof.
13.1 Damovo is authorised to save the Customer’s personal data including all of the information concerning the facility which is the object of the Contract, including hardware and software environment as well as the installation site, and also to pass the same on to the manufacturer of the respective facility component if the manufacturer demands this and/or this appears to be expedient for the performance of this Contract. The Customer consents to this storage and passing on of the data.
13.2 The Contract comes into existence upon signature by both contract parties. Amendments and additions to these Conditions or to individual agreements are only valid if they are made in written form and are signed by authorised representatives of both parties. This also applies to a potential waiver of the written form.
13.3 Should individual provisions of these Terms and Conditions be or become invalid, the validity of the other provisions will remain unaffected thereby. A provision which is legally valid and which comes economically as close as possible to the provision wanted by the parties shall take the place of the invalid provision until the parties have agreed upon a corresponding new contractual provision. This shall apply correspondingly in the event that unintended lacunae surface.
13.4 German law shall apply, and the application of the CISG (UN Convention on Contracts for the International Sale of Goods) is hereby excluded. The legal venue is Düsseldorf.
By means of the terms and conditions below, Damovo Deutschland GmbH & Co. KG, hereinafter referred to as “Damovo”, and its contract partner, hereinafter referred to as the “Customer”, govern their legal relations, subject to individual contractual provisions. The General Terms & Conditions constitute a part of the contract coming into existence between the parties (the “Contract”).
1.1 Terms and conditions of or deviating counter-confirmations by the Customer are not binding for Damovo, even if they are not expressly objected to; for their legal validity they require Damovo’s express written acknowledgement. The written order confirmation by Damovo is exclusively authoritative for the determination of the contract content.
1.2 The General Terms & Conditions also apply to all consequential transactions between the parties.
1.3 The Customer will be informed in writing of any amendments to these General Terms & Conditions. The amendments are deemed to be approved if the Customer does not object to them in writing. Damovo will particularly draw attention to this consequence in the notification letter. The objection must be received by Damovo within one month after receipt.
2.1 Object of the maintenance
2.1.1 In the framework of this Contract, Damovo takes over the maintenance of the equipment parts listed in the Contract.
2.1.2 Damovos services under this Contract serve for the permanent maintenance of as faultless a condition of the facility which is the contractual object, and comprises the following services:
2.2 Object of the software maintenance
2.2.1 Damovo shall carry out software maintenance for the standard software listed in the contract within the scope of this Contract.
2.2.2 The software maintenance under this Contract serves to ensure that the standard software which is the subject of this Contract runs as smoothly as possible at all times and covers the following services:
Provision of a new major release (software only) once a year, if a new major release is released by the manufacturer. The import of the new major release is not part of the service and has to be ordered separately by the Customer.
2.2.3 If new hardware is required for the import of a major release, the delivery of this hardware is not subject to the services of the software maintenance contract. The Customer is to order the required new hardware sepa-rately at its own expense.
2.2.4 When importing major releases, sub-systems which are not part of the software maintenance contract are subject to a separate upgrade against payment. The Customer shall provide adjustments to the hardware and software system environment, in particular new versions of the operating system or other third-party software required to use the contractual soft-ware, in a ready-to-operate state, in good time, and at its own expense, if this is necessary for new versions of the contractual software. Should the Customer fail to meet this obligation, then the right to an upgrade of the contractual software shall no longer apply, without the Customer being entitled to a discount of the monthly Software Assurance fee.
2.2.5 Prio 1 Support by the manufacturer can only be guaranteed in connection with a software maintenance contract.
2.2.6 The definition of update, minor release and upgrade, major release reads as follows:
2.2.7 Minor versions (update)
Updates are error-free versions of the same scope of service. Minor versions differ in terms of extensions and improvements. They do not include any functionality enhancements and mainly serve to rectify errors.
2.2.8 Major versions (upgrade)
Major versions differ in terms of significant extensions and improvements to the scope of service. Generally new function groups and inter-faces are realised and/or new technologies are introduced.
2.3 Damovo shall provide the necessary tools, measuring/testing equipment and vehicles for the maintenance and software support; the Customer shall provide suitable access for the remote service.
2.4 If the Customer has ordered real-time monitoring within the scope of this Contract, the following shall apply:
2.4.1 The Customer shall undertake to integrate Damovo in its change management for the duration of this Contract. If the Customer carries out work on and/or within its network, and systems and/or applications are affected by this work which are incorporated in the real-time monitoring by Damovo, the Customer shall undertake to inform Damovo prior to a change being implemented. Damovo shall then deactivate the corre-sponding monitoring sensors for the duration of the change. If the Customer fails to meet the aforementioned obligation and an error message is triggered for the monitoring tool and subsequently the deployment of a technician (remote and/or on-site) as a result of the delay in providing the information or failure to provide the information by the Customer, this deployment is not part of this Contract. The deployment of a technician triggered by such a measure shall be billed according to the applicable Damovo rates plus the respective overtime surcharges.
2.5 The Customer shall undertake to integrate Damovo in its change management for the duration of this Contract. If the Customer carries out work on and/or within its network, and systems and/or applications are affected by this work which are incorporated in the real-time monitoring by Damovo, the Customer shall undertake to inform Damovo prior to a change being implemented. Damovo shall then deactivate the corre-sponding monitoring sensors for the duration of the change. If the Customer fails to meet the aforementioned obligation and an error message is triggered for the monitoring tool and subsequently the deployment of a technician (remote and/or on-site) as a result of the delay in providing the information or failure to provide the information by the Customer, this deployment is not part of this Contract. The deployment of a technician triggered by such a measure shall be billed according to the applicable Damovo rates plus the respective overtime surcharges.
2.4.2. Damovo is not responsible for compliance with Microsoft’s licensing guidelines within the scope of the customer-specific assets. In accordance with Microsoft’s licensing conditions, and irrespective of the operating system, the Customer shall undertake to license all devices, equipment and end points monitored by a monitoring application or accessed with the aid of a remote application which are based on a Microsoft Win-dows Server Operating System with a device CAL, unless they are already covered by another Microsoft licence. If Windows 10 Professional is used as an operating system for the remote and/or local probe, the requirement for a device CAL is not applicable. The Customer is responsible for ensuring compliance with Microsoft’s licensing guidelines within the scope of the customer's own assets.
2.5 8 a.m. – 5 p.m. (as of August 2014). The reaction time normally amounts to 24 hours within the business hours named. Damovo reserves the right to correspondingly adjust the business hours in the event of the amendment of the shop or collective wage agreements.
2.6 At the beginning of the contractual duration, the Customer has to nominate in writing to Damovo a responsible who is to function as the contact partner for the rendering of the contractual services. In principle, only that responsible person is entitled to order services in accordance with this Contract, make claims arising from defects, or to deploy similar tasks relevant for the performance of this Contract. The Customer can change the responsible contact partner at any time, but must inform Damovo promptly in writing of such a change.
2.7 handed over to Damovo. The Customer is aware that each Token will be used by different Damovo employees within the scope of the contractual services. Any declarations in connection with the handover of Tokens, particularly declarations relating to receipt acknowledgements and liability, shall be made exclusively by Damovo.
Damovo shall undertake in this connection to protect the Tokens against access by unauthorised third parties through suitable measures and shall inform the Customer immediately should Damovo become aware of any access by unauthorised third parties. A personal declaration by Damovo employees concerning the handover of Tokens, especially with regard to personal liability, shall not take place.
2.8 Customer, then Damovo is to be informed of this in a timely manner. In the case of late notification or failure to notify, Damovo will have the right to charge for the costs which actually arise.
2.9 Damovo’s obligation to render the support services relates in principle to the respectively-latest version of the software. If the Customer has installed an older version of the software, Damovo can refuse to carry out the service, or carry out the service work in return for remuneration of the increased cost associated therewith. Before rendering the service, Damovo will inform the Customer of the anticipated amount of the increased cost. Software which has been altered by the Customer or third parties shall only be subject to the service if and to the extent that Damovo has agreed to the alteration beforehand in writing and has approved the alteration.
3.1 The following are excluded from the contractual maintenance services:
3.2 Damovo is not responsible for the design of the equipment rooms or system locations in which the systems are installed. The Customer shall undertake to design its equipment rooms or system locations, especially rooms in which integrated battery systems or UPS systems are used, in such a way that they at least conform to the legally valid requirements according to DIN EN 50272-2, VDE 0510-2-2001-12.
4.1 Damovo also renders services which go beyond the scope named in number 2 of this General Terms and Conditions or which are excluded from the scope of services pursuant to number 3. Such services require a separate agreement.
4.2 The programming of customer-specific software patches on the basis of a separate agreement only occurs for the release installed at the time of the order.
4.3 The Customer is charged for the services by Damovo at its usual rates in accordance with its outlay for materials and time plus any ancillary costs (home-to-office times, journey and transport expense, inter alia).
4.4 Services in the framework of the scope of services of this Contract, but outside the business hours or exceeding the business hours are charged for at the respectively-valid Damovo charge rates plus the respective overtime surcharge.
4.5 The making available of a standby service requires a separate agreement. A standby service is set up in return for the charging of a monthly flat-rate fee.
5.1 The Contract shall enter into force on the date which is specified in the maintenance/software maintenance contract and has a minimum duration of twelve (12) months.
5.2 After the expiry of the original contract duration, the respective contract duration shall be prolonged in each instance by one further year if
5.3 The right to declare an extraordinary termination of the Contract, including one without notice, on important grounds remains unaffected by the agreed contract duration. An important ground entitling a party to declare a termination of the Contract without notice shall exist in particular if
The right to declare an extraordinary termination shall not lapse by virtue of the fact that the respective party does not make use of the right immediately after the fulfilment of the prerequisites.
5.4 Should the manufacturer(s) of the products supplied by Damovo cease giving Damovo support for especially complex problems (3rd level support) for some or all of the products, be this due to obsolescence or for other reasons, then this will constitute an important ground for termination on the part of Damovo in the sense of number 5.3 hereof. If the manufacturer support only ends for the a part of the telecommunications facility which is a contractual object, then Damovo in its own discretion will also be entitled to a partial termination of the Contract. Should it only transpire after a partial termination that the maintenance of the facility or the equipment parts with regard to which the manufacturer support has ceased to be given can no longer be rendered, Damovo will still be entitled to declare entire termination retroactively.
6.1 Contractual fee for maintenance
6.1.1 The contractual fee is calculated in accordance with the size of the facility, as defined in the Contract.
6.1.2 The maintenance fee plus VAT in the respectively valid statutory amount for the rest of the then current calendar quarter is to be paid immediately from the date of the operational readiness of the facility, and in advance by the fifth working day of the quarter for every calendar quarter thereafter.
6.2 Contractual fee for software maintenance
6.2.1 The software maintenance fee plus VAT at the respectively valid statutory rate is payable to Damovo in advance by the Customer immediately without deduction from the date of activation of the licences which are necessary for the Customer by the respective manufacturer for the minimum maintenance duration of twelve (12) months.
6.2.2 If the Contract is extended after the minimum duration of twelve (12) months pursuant to clause 5.2, the software maintenance fee is immediately payable annually in advance without deduction, unless otherwise expressly agreed in the Contract.
6.3 Expansions of the communications system and the standard software automatically become a part of the maintenance/software maintenance contract subject to these Terms & Conditions. Expansions will be recorded in a separate list. Damovo’s maintenance/software prices valid at the time of the expansion will apply. The maintenance/software maintenance price increases in accordance with the extent of the expansion. The increased contractual fee is payable from the operationally ready handing over of the expansion. If the size of the communications system which falls under this Contract is reduced due to partial termination pursuant to number 5.4 of this Contract, the contractual fee will be reduced accordingly.
6.4 The maintenance fee is based on the basic rate of pay of the collective bargaining agreement between the Employer’s Association and IG Metall NRW. In the event of change of the basic rate of pay, the price will be adjusted accordingly. The change will come into effect upon the commencement of the calendar quarter after a new collective bargaining agreement becomes valid.
6.5 The maintenance fee is adjusted accordingly in the event of change of services with equivalent wages as well as material and availability costs.
6.6 In the event of default of payment, Damovo is entitled to levy default interest in the amount of 8% above the respective basic interest rate pursuant to § 247 of the German Civil Code. In addition, Damovo can levy a processing fee in the amount of EUR 8 per reminder. The bringing of a claim for more extensive loss remains unaffected.
6.7 The Customer can only set off counter-claims against Damovo’s claims if the former are legally valid and non-appealable or if they have been expressly acknowledged by Damovo. The same applies regarding a Customer right of retention in this regard.
6.8 All payments are made in Euros or in the respective lawful currency of the Federal Republic of Germany.
7.1 If the Customer discovers a defect in the services rendered pursuant to this Contract, then it is obliged – if it wants to make use of its claims arising from that defect – to notify Damovo in writing of the respective defect within a period of two weeks.
7.2 If a defect for which Damovo is at fault exists regarding the services to be rendered in accordance with this Contract, then, subject to exclusion of the Customer’s rights to rescind the Contract or to reduce the remuneration, Damovo is obliged firstly to subsequent performance insofar as no entitlement to refusal of that subsequent performance arises under the statutory provisions.
7.3 The subsequent performance can, according to Damovo’s choice, be effected through rectification of defects or through replacement delivery. The Customer is obliged to grant Damovo a reasonable period for subsequent performance regarding every individual defect. If the subsequent performance fails or if Damovo refuses to effect subsequent performance, the Customer can terminate the Contract or undertake a reasonable reduction in the remuneration (reduction). The reduction in the remuneration (reduction) in excess of the amount of one month’s contractual fee is excluded.
7.4 Damovo has to bear all of the expense necessary for the purpose of the subsequent performance, in particular transport, home-to-office, work and material costs. The Customer, however, will make available for no charge the technical equipment (including telephone connections) at its disposal.
7.5 The Customer is obliged to support Damovo to the necessary extent in the removal of a defect.
7.6 A rectification of defects will be deemed to have failed upon the third unsuccessful attempt, if due to the contractual services further rectification attempts are not appropriate for the Customer and reasonable.
7.7. The right of the Customer to remove the defect itself and to reimbursement of the expenses necessary therefore pursuant to § 637 of the German Civil Code is expressly excluded.
7.8 The Customer can only make a claim for compensation in the framework of its claims arising from defects if the subsequent performance has failed or Damovo has refused to effect subsequent performance. A claim of this kind is subject to the liability limitations contained in number 8 below. The Customer’s right to bring claims for more extensive compensation claims (also subject to the limitations contained in number 8 below) remains unaffected.
7.9 The warranty period for the services rendered in the framework of this Contract amounts to one year, insofar as Damovo has not maliciously concealed the defect or has given a guarantee for the condition. The identification of defects during the warranty period will not prolong the duration of the warranty liability. Warranty rights other than those named in this Contract cannot be invoked by the Customer.
7.10 If the Customer, its personnel or other third parties not authorised by Damovo have carried out work or changes to the devices which are contractual objects, Damovo is not subject to a warranty with regard to defects which arise after such work and/or changes, unless those defects are not attributable to the work or changes carried out.
8.1 Damovo is liable regardless of the following limitations of liability in an unrestricted manner pursuant to the statutory provisions for loss of life, personal injury or damage to health which is due to an intentional or grossly negligent breach of duty of Damovo itself, its legal representatives or vicarious agents for loss or damage which is covered by the liability pursuant to the German Product Liability Act, as well as for all damage or loss which is due to intentional or grossly negligent breaches of contract, as well as bad faith. If Damovo has given a condition and/or durability guarantee with regard to the contractual object or parts thereof, Damovo is also liable in the framework of that guarantee. For damage or loss which is due to the lack of the guaranteed condition or durability, but does not arise directly in the contractual object, however, Damovo is only liable if the risk of such damage or loss is obviously included in the condition and durability guarantee.
8.2 Damovo is also liable for damage or loss which is due to intentional or grossly negligent behaviour by its legal representatives, executive employees and simple vicarious agents.
8.3 Damovo is also liable for damage or loss which is caused through simple negligence, insofar as the negligence pertains to the breach of such contractual obligations whose compliance is of particular importance for the achievement of the contractual purpose (cardinal obligations). At all events, in cases of negligent behaviour Damovo is liable only to the extent that the damage or loss is foreseeable and typically associated with the Contract. In the case of minor negligent breaches of non-fundamental contractual obligations by simple vicarious agents, Damovo will not be liable. The limitations of liability contained in sentences 1 – 3 above also apply insofar as Damovo’s liability for its legal representatives, executive employees and other vicarious agents is affected.
8.4 In so far as Damovo’s liability is excluded or limited, this also applies for the personal liability of Damovo’s employees, workers, representatives and vicarious agents.
8.5 The liability for loss of data is limited to the typical restoration effort which would have occurred in the case of regular and risk-appropriate production of backup copies.
8.6 Damovo is not responsible for the checking of the networks and devices provided by the Customer for electro-magnetic compatibility pursuant to the EMVG and does not assume any costs which result from potential breaches of the EMVG.
8.7 Damovo shall not be liable for any damages resulting from the Customer's failure to comply with its obligations under clause 3.2.
8.8 Damovo is only liable for damage or loss which is caused through misuse of the products which are contractual objects if intentional or grossly negligent behaviour on the part of Damovo is proven.
8.9 If the Customer suffers loss due to the culpable exceeding of a fixed agreed delivery date or hand-date by Damovo, then in the case of only simple negligence it is entitled – subject to exclusion of further claims – to demand flat-rate compensation. The compensation amounts to 0.5% for every full week of the delay; however, in total not more than 5% of the value of the delivery or partial delivery in delay. This limitation does not apply in the case of the intentional or grossly negligent causing of the loss by Damovo.
9.1 If in the framework of the contractual services, computer programmes as well as the documentation belonging thereto (hereinafter referred to as “Software”) are handed over to the Customer, the following applies – subject to the provisions in a software licence agreement separately agreed between the parties or in a lease or purchase agreement:
9.2 Damovo thereby grants the Customer a non-exclusive and temporally-unlimited licence to use the Software handed over to the Customer on the hardware delivered by Damovo or the hardware for which the Software was delivered, in accordance with the following provisions. The Customer is not entitled to configure the Software for more than the number of objects for which the Customer has purchased a licence. The term “objects” in the above sense encompasses, inter alia, installations, users, connections, agents and ports.
9.3 In addition, the rights and obligations of the Customer with regard to the Software are based on the pertinent provisions of the German Copyright Act (1st Part, 8th Section: Particular Provisions for Computer Programmes), insofar as nothing to the contrary is stipulated in this number 9. Without separate, express permission - which has to be granted in writing – the Customer is particularly forbidden from doing the following:
9.4 The Customer is only entitled to sell the Software products to a third party when relinquishing its own use. With the sale, the Customer’s usage right is transferred to the third party. All of the copies supplied to the Customer and/or produced by it are to be handed over to the third party or to be deleted. The Customer is obliged to disclose the third party’s name and the address to Damovo. The recipient may not be granted a more extensive usage right than that stipulated here.
9.5 Damovo holds the Customer harmless from any third party claims which arise out of or due to a breach of trademark rights and copyright through the normal use or possession of the Software, provided that the Customer
9.6 The indemnity obligation contained in number 9.5 does not apply to cases where Damovo did not know of the existence of trademark rights or copyright of third parties when entering into the Contract, and this lack of knowledge is not due to fault on the part of Damovo, either. The indemnity obligation is also excluded if a breach of third-party rights is to be attributed to the fact that the Customer has used the Software in association with equipment or material not approved or delivered by Damovo, or if the Customer has made changes to the Software without Damovo’s prior written consent.
9.7 In the event of a breach or alleged breach of third-party trademark rights or copyright, Damovo is entitled to modify or exchange the pertinent Software if the entire performance of the Software is not impaired thereby.
9.8 All of the rights in the Software inclusive of the copyright and other industrial property rights remain with Damovo or with its licensor. The Customer acquires only the rights in the Software granted through these licence conditions. The Customer undertakes not to remove the copyright notice or other information regarding industrial property rights from the Software, and to affix the same to all backup copies.
9.9 In the event that the Customer breaches the above-detailed licence conditions, Damovo has the right to revoke the licence. In such case, the Customer is obliged to destroy the Software, including all copies, without undue delay. The Customer can bring the licence to an end at any time through destruction or return of the Software and all of the copies made.
9.10 If the respective manufacturer only grants Damovo a lesser scope of rights for licensing to the Customer than that contained in numbers 9.1 and 9.3, the scope of the rights granted by the manufacturer is also authoritative in the relationship between Damovo and the Customer. Upon request, Damovo has to give the Customer corresponding information and to provide evidence of this in the event of dispute.
10.1 If Damovo does not receive or does not receive in a timely manner deliveries or services from the manufacturer which are necessary in order to fulfil the obligations arising out of this Contract which are owed to the Customer, despite timely and correct ordering of those deliveries or services, and such failure is not attributable to Damovo, then Damovo has the right to release itself from its service obligation. In such case, Damovo will inform the Customer without undue delay of the non-availability and reimburse the Customer for the part of the contractual fee apportionable to the pertinent quarter.
10.2 If Damovo does not make use of the right to rescind in the cases named above, Damovo shall not be in delay regarding the Customer if Damovo endeavours in a timely manner to obtain an alternative supply of the delivery or service necessary and not received in a timely manner.
The following provisions only apply if and insofar as communications products for telephony via the so-called Internet protocol (IP Telephony) fall under this Contract or if the Internet protocol is being used as a transport medium between de-central and not directly-linked parts of a telecommunications facility (IP Transport Medium). Both applications are identically referred to in the following as IP Telephony.
11.1 Every IP communications solution (including IP Telephony) is based on the Customer’s existing network infrastructure. Therefore, delays and/or data loss can occur, which can impair the IP Telephony’s functionality, if the Customer’s network infrastructure does not have sufficient capacity and/or configuration. In the event of a subsequent expansion of the IP Telephony scope or another change in the infrastructure structure or the usage intensity of the Customer’s network, impairments of the speech and/or transfer quality as well as the availability of IP Telephony can occur. Also the subsequent installation of network components, software, applications or similar can be associated with such a subsequent change which is detrimental to the IP Telephony. Upon separate, fee-incurring order, Damovo will also review the compatibility of such subsequent changes with the IP Telephony.
11.2 If the Customer effects one of the changes listed in number 11.1 sentences 3 and 4 above in its network without Damovo having examined and approved of the compatibility of these changes with the IP Telephony, the Customer shall be obliged to remunerate Damovo for the maintenance work which Damovo has to do due to the malfunctions of the IP Telephony at the Customer, in accordance with Damovo’s respectively-valid hourly rates. This does not apply only if it is determined that this work is not attributable to the named subsequent changes to the Customer’s network.
12.1 Damovo is entitled to transfer the Contract in its entirety or individual rights and obligations there under to third parties. The Customer consents in advance to a potential transfer and consents to an assignment of Damovo’s claims under the maintenance contract. The Customer is obliged to only make payments to the place named by Damovo.
12.2 If the Customer hands devices and equipment over to third parties, then its obligation regarding fee payment remains unless the third party enters into this Contract with Damovo’s consent. Consent can only be withheld by Damovo on important grounds.
12.3 Damovo is authorised to save the Customer’s personal data including all of the information concerning the facility which is the object of the Contract, including hardware and software environment as well as the installation site, and also to pass the same on to the manufacturer of the respective facility component if the manufacturer makes this a condition of 3rd level support or if other factual reasons make the passing on of the information necessary. The Customer consents to this storage and passing on of the data.
12.4 The Contract comes into existence upon signature by both contract parties. Amendments and additions to these Conditions or to individual agreements are only valid if they are made in written form and are signed by authorised representatives of both parties. This also applies to a potential agreement concerning the waiver of the written form.
12.5 Should individual provisions of these Terms and Conditions be or become invalid, the validity of the other provisions will remain unaffected thereby. A provision which is legally valid and which comes economically as close as possible to the provision wanted by the parties shall take the place of the invalid provision until the parties have agreed upon a corresponding new contractual provision. This shall apply correspondingly in the event that unintended lacunae surface.
12.6 The legal venue is Düsseldorf. The contract and these terms are governed by the law of Germany.