1. Scope

The it-werke group, comprising it-werke e.k., it-werke Technology GmbH and it-werke Service GmbH (hereinafter referred to as “it-werke”), provides all deliveries and services to its customers exclusively on the basis of these General Terms and Conditions. The term “customer” includes individuals, legal entities and public-law institutions. The customer may be specified in greater detail in an appendix. We do not accept agreements or customer terms and conditions that deviate from these Terms and Conditions in whole or in part unless we have expressly agreed to them in writing. These Terms and Conditions shall also apply exclusively where we provide services without reservation despite being aware of conflicting customer terms and conditions.

2. Contractual Basis

Where it-werke submits an individual quotation, it does so on the basis of information provided by the customer regarding the IT system currently in use, planned hardware expansions and/or technical and functional requirements. The customer bears the risk that the services offered on this basis meet the customer’s wishes and needs. If the customer wishes to agree binding specifications regarding performance and availability, these must be recorded in writing. They become effective only when countersigned by it-werke. This applies in particular to prototype developments commissioned by customers.

3. Acceptance and Retention of Title

If neither contracting party requests formal acceptance, or if an acceptance appointment requested by either party does not take place for reasons for which the customer is not responsible, the contractual performance by it-werke shall be deemed accepted when the customer begins using it. All delivered goods remain the property of it-werke until the purchase price has been paid in full. If the customer defaults on payment, it-werke may, without prejudice to its other rights, repossess the delivered goods to protect its rights, provided it has given prior notice and allowed the customer a reasonable additional period for payment.

4. Licence Agreements and Copyright

If the customer receives a software product (“Program”) from it-werke, the customer is granted a non-exclusive right to use it (licence) for the duration of the contract. If it-werke authorises the customer to hold multiple licences for the Program, the following conditions of use apply to each individual licence. The term “Program” includes the original program, all reproductions (copies) of it and parts of the program, even where combined with other programs. A Program consists of machine-readable instructions, audiovisual content and associated licence materials. In all other respects, the licence conditions of the respective program manufacturers apply.

The customer undertakes to ensure that everyone using the Program complies with this licence agreement. The customer may use the Program on only one computer at a time. The Program is considered to be “used” when it is located in a computer’s main memory or on a computer storage medium. A Program installed on a network server solely for distribution purposes is not considered to be in use.

Licence fees charged by it-werke are based on the number of users, the number of installations or a combination of both. Where access to a Program is controlled by licence-management software, copies may be created and stored on all machines controlled by that software, provided use does not exceed the total permitted number of users or installations.

The customer may carry out data backups in accordance with recognised technical practice and create the necessary backup copies of the Programs for that purpose. If the manual is supplied on a data carrier, the customer may print it on paper. The customer may not alter or remove it-werke copyright notices. Except as described herein, the customer is not entitled to use, copy, modify, transfer, convert into another form of expression, reverse-assemble, reverse-compile or otherwise translate the Program, unless such conversion is expressly permitted by mandatory statutory provisions. The customer may not rent, lease or sublicense the Program.

When a time-limited right of use expires or a termination becomes effective, all rights to use the Programs, any copies, and written documentation and promotional materials received from it-werke expire. The customer shall delete all stored Programs from its computer systems unless legally required to retain them for a longer period. The customer’s remaining ancillary contractual obligations towards it-werke shall survive termination or expiry of the contract.

5. Offers, Conclusion and Termination of Contracts

A contract is concluded when the customer places an order and it-werke confirms that order, or when the first act of performance takes place.

Where a contract is concluded for an indefinite period (maintenance or service), either the customer or it-werke may terminate it without giving reasons by providing four weeks’ notice to the end of a calendar month.

Where a contract is concluded for a fixed term or a minimum term has been agreed, it continues for an indefinite period after that term expires. It may then be terminated subject to the notice period stated above.

Both parties retain the right to terminate without notice for good cause. Good cause exists for it-werke in particular if the customer: under a fixed-term contract or a contract with a minimum term, is in arrears by an amount equivalent to two monthly basic charges; under an indefinite-term contract, is more than 20 calendar days in arrears with payment; or culpably breaches an obligation under Section 4.

If it-werke terminates for good cause, it may demand an amount equal to 75% of the sum of all monthly basic charges that the customer would have had to pay during the remaining contract term if notice had been given in due time, unless the customer demonstrates that it-werke suffered no loss or that the actual loss was substantially lower.

Declarations of withdrawal and termination must be made in writing; transmission by fax also satisfies this requirement.

6. Prices and Payment

Price adjustments shall be communicated in writing at least six weeks before taking effect. A price increase requires the customer’s consent. Consent is deemed granted unless the customer objects within four weeks of receiving the notice of amendment. it-werke undertakes to inform the customer of the consequences of failing to object.

In the event of late payment, it-werke charges interest at ten percent per annum. The statutory default interest rate shall in all cases be the minimum rate.

it-werke invoices ongoing services monthly. Amounts below EUR 150.00 per month are invoiced six months in advance. Invoices are due for payment within 14 days of issue.

The customer may offset claims by it-werke only against claims that are undisputed or have been finally established by a court.

Unless otherwise agreed, a monthly data transfer volume of 100 MB is included. The volume used is the total of all data transfers associated with the customer’s order (e.g. email, downloads, uploads and websites). For the purposes of measuring transfer volume, one gigabyte equals one thousand megabytes, one megabyte equals one thousand kilobytes and one kilobyte equals one thousand bytes.

If downloads result in a higher traffic volume, the customer must pay the fee specified in the applicable price list for each commenced GB. If a service agreement has been concluded, it-werke remains entitled to the agreed remuneration for services even in the event of disruptions.

7. Warranty

As part of its warranty obligations, it-werke may replace computers, peripheral equipment and their components and make technical modifications. Replaced items become the property of it-werke insofar as the corresponding equipment was owned by it-werke before installation.

The customer must inspect delivered goods immediately upon receipt for defects, quantity discrepancies or incorrect deliveries. Any delivery that is defective in whole or in part must be reported in writing immediately upon discovery. Defects must also be documented in a meaningful manner, in particular by recording any error messages displayed. Before reporting a defect, the customer must first carry out problem analysis and troubleshooting in accordance with the operating manual. Defects that could be detected through the careful inspection appropriate to the type of goods must be reported within no more than one week. Other defects must be reported immediately upon discovery. If the customer is a merchant and fails to report a defect promptly, within the required period or in the required form, the goods shall be deemed approved with respect to that defect.

Where a properly submitted notice of defect is justified, it-werke shall provide a replacement free of charge. At its discretion, it-werke may remedy the defect instead of supplying replacement goods. it-werke must exercise this choice no later than ten days after receiving the notice of defect; otherwise the right of choice passes to the customer. If repair or replacement fails, the customer may choose to rescind the contract or demand a corresponding reduction in the agreed price. The right to rescission or reduction does not apply to custom developments incorporating third-party components where disruptions are caused by those components and no negligence occurred in selecting or testing them.

As part of the warranty process, the customer may be required to adopt a new software version unless doing so would cause unreasonable adaptation or migration difficulties. The customer must provide it-werke with all reasonable assistance in remedying defects. Before any remedial work, particularly before replacing a machine, the customer must fully back up and, where necessary, remove Programs, data and storage media.

Biometric recognition of individuals is based on calculating a statistical probability of recognition and comparing it against defined thresholds. Any warranty as to the correctness of an identification or rejection beyond those statistical parameters is excluded. The warranty provided by it-werke for purchased and supplied devices and components is limited to the obligations owed by the respective manufacturer to it-werke.

it-werke warrants annual average server availability of 98.5%. Periods during which servers cannot be accessed via the internet due to technical or other problems beyond the control of it-werke (force majeure, fault of third parties, etc.) are excluded. No general availability commitment is made for custom developments or prototypes. it-werke may restrict access to services where necessary to protect network security or network integrity, particularly to prevent serious disruption of the network, software or stored data.

8. Liability

it-werke shall be liable for damage only if it-werke or one of its agents breaches a material contractual obligation (cardinal obligation) in a manner that jeopardises the purpose of the contract, or if the damage results from gross negligence or wilful misconduct by it-werke or one of its agents. Where a culpable breach of a material contractual obligation is neither grossly negligent nor intentional, the liability of it-werke is limited to typical losses that it-werke could reasonably have foreseen when the contract was concluded.

Under no circumstances shall it-werke and/or its suppliers be held liable for direct or indirect damage arising from use, inability to use, or intended or unintended incorrect operation. Liability of it-werke for warranted characteristics and under mandatory statutory provisions remains unaffected.

it-werke is not obliged to notify customers of changes in the legal situation relating to the services offered (data protection, distance-selling legislation, general telecommunications legislation or other relevant laws). If it does so in individual cases, this constitutes an additional service from which no claims may be derived. The duty to monitor legal developments and obtain relevant information rests with the customer in every case.

If devices subject to natural wear are not replaced at the regular intervals specified by it-werke, malfunctions shall give rise to no claims against it-werke. The same applies to the PC hardware used. Where products have been offered with a service agreement, the warranty obligation ceases if that agreement was not accepted.

it-werke is not liable for unpaid direct debits or other receivables authorised or released for payment through biometric verification (digiPROOF/digiX or any other designation), nor for any consequential costs (reminder and/or court proceedings). In particular, it-werke provides no warranty regarding customers’ creditworthiness. The operator of the digiX system is responsible for the relevant checks and for ensuring that entered data is correct.

it-werke is not liable for disclosure of data by operators of a digiX system where such disclosure does not comply with the documented arrangements between the operator and end customers. it-werke is not liable for data loss and/or misuse of data. The operator of the digiX system is responsible for correctly backing up data and protecting it against unauthorised access by third parties.

digiX systems are based on the statistical probability that individual biological characteristics match, assessed against a defined threshold. Any further absolute guarantee of identity is excluded. Because of the nature of biometric characteristics, recognition may be prevented or made more difficult, particularly where characteristics are subject to change.

it-werke is not liable for false identifications or false rejections or for any resulting direct or indirect damage. If digiX systems are deceived by electronic or mechanical imitations of the biological characteristic being checked, it-werke accepts no liability for resulting damage. it-werke reserves the right to take legal action against any attempted fraud.

Within the scope of the German Telecommunications Customer Protection Ordinance (TKV), the liability provision of Section 7(2) TKV remains unaffected in all cases.

9. Customer Obligations

The customer warrants that all order-related information provided to it-werke concerning the company and the hardware and software used is correct and complete. The customer undertakes to notify it-werke immediately of any changes and, upon request, to reconfirm the current accuracy of the information within 15 days of receiving the request.

The customer undertakes to keep strictly confidential all passwords received from it-werke for access to services, Programs and databases, and to notify it-werke immediately upon learning that an unauthorised third party has obtained knowledge of a password. These obligations also apply where the customer receives a password used to identify the customer to it-werke when making declarations relating to the contractual relationship. Persons using the customer’s password when making such a declaration shall be presumed, subject to rebuttal, to have been authorised by the customer to make that declaration. If third parties use services provided by it-werke through misuse of passwords attributable to the customer’s fault, the customer is liable to it-werke for usage charges and damages.

The customer is advised that it is responsible for backing up data after each working day on which the data has been modified by the customer or its agents or assistants; data stored on servers operated by it-werke must not be backed up to those same servers. In particular, the customer must perform a complete backup before it-werke begins any work or before supplied hardware or software is installed. The customer must also thoroughly test each Program for defects and suitability for its particular circumstances before commencing operational use. This also applies to Programs supplied by it-werke under warranty or maintenance arrangements. The customer is expressly advised that even minor changes to software and/or device configuration may impair the operation of the entire system.

10. Data Protection and Confidentiality

In accordance with Section 33 of the German Federal Data Protection Act (BDSG), it-werke advises that personal data will be stored in connection with the performance of the contract.

it-werke expressly advises the customer that, given the current state of technology, comprehensive data protection cannot be guaranteed for data transmitted over networks. The customer is aware that, from a technical perspective, it-werke may at any time access information stored on web and database servers and, under certain circumstances, other customer data stored there.

it-werke, the customer and any agents undertake to maintain absolute confidentiality regarding all data and information that become known to them in the course of the contractual relationship. The contracting parties undertake to comply with all data protection provisions applicable to them. The customer bears full responsibility for protecting data it stores against access by unauthorised third parties.

Use of isi:Cado may require an email address to be provided. Such data is collected and stored for communication with the user and for the purposes of the respective Program operators and their service providers. As a service, it-werke Service GmbH may use this data to inform users about promotions offered by other providers. Disclosure to any other group of persons is excluded without the user’s explicit consent.

11. Final Provisions

Where the customer is a merchant, a legal entity under public law, a special fund under public law, or has no place of general jurisdiction in Germany, Lahr shall be the exclusive place of jurisdiction for all disputes arising from this contract. it-werke is also entitled to bring proceedings against the customer at the customer’s general place of jurisdiction.

Contracts concluded by it-werke on the basis of these General Terms and Conditions and all claims arising from them, of whatever nature, are governed exclusively by the laws of the Federal Republic of Germany, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

If any provision of these General Terms and Conditions and/or the contract is or becomes invalid, the validity of the remaining provisions shall not be affected. Instead, the invalid provision shall be replaced by a provision corresponding as closely as possible to the purpose of the agreement and which the parties would have agreed upon to achieve the same economic result had they been aware of the invalidity. The same applies to any omissions.