Terms & Conditions of EuroSkyPark GmbH

Status: January 2019

General Terms and Conditions

1 Scope of application/conclusion of contract

1.1 The following General Terms and Conditions (GTC) apply to all deliveries to EuroSkyPark GmbH (ESP) as well as to construction and services ordered from ESP.

1.2 The customer has to check the order or the commissioning professionally and to point out all errors and ambiguities in writing. Change agreements and additional agreements are only effective with written confirmation by ESP.

1.3 At the latest with the start of the execution of the order or the assignment the customer accepts the general terms and conditions of ESP.

1.4 All offers of ESP, as well as the related documents are always non-binding and subject to change.

1.5 A contract for the use of the services is concluded by a written or electronic order of the customer (e.g. using the corresponding order form) (offer) and the receipt of the subsequent order confirmation by ESP (acceptance) or tacitly by granting the possibility to use the relevant services (activation).

1.6 ESP is entitled to reject an offer without giving reasons. ESP can make the conclusion of the contract dependent on the presentation of a written power of attorney, a rental agreement, an identity card, the presentation of a property owner declaration or on the provision of an appropriate security deposit. ESP is also entitled to make the conclusion of the contract dependent on the payment of a house connection fee.

1.7 ESP’s obligation to perform shall be subject to the existence of the infrastructural or technical prerequisites for the performance of the service (in particular the leasing of a telecommunication line from a third party company) or correct and timely self-supply with preliminary services, provided that ESP has concluded a congruent hedging transaction with the required diligence and the incorrect or untimely performance is not the fault of ESP. 

All required hardware and software facilities, installations or other technical services of third parties, in particular electricity supplies, are considered as preliminary services in the sense of this paragraph.

1.8 Deviating terms and conditions of the customer shall not become part of the contract even if the customer does not expressly object to the validity of these GTC in the individual case or an acceptance of the delivery or service of ESP takes place. Any terms and conditions in order, delivery or other confirmations of the customer, which the customer provides to ESP, are hereby contradicted. Terms and conditions deviating from the GTC shall only apply if they are accepted by ESP in writing. These GTC may be supplemented by written product and service specific terms and conditions of ESP’s upstream suppliers or manufacturers. These also become part of the contract. If software products are the subject of the delivery, the license conditions of the manufacturers enclosed with the software products become the basis of the license conditions between the customer and ESP.

1.9 These General Terms and Conditions shall also apply to all future transactions with ESP, insofar as this is a commercial transaction on both sides. The version valid at the time of the conclusion of the contract is authoritative.

2 Written form

Orders or commissions and agreements, amendments and declarations in connection therewith shall only be binding in writing.

3 Contractual basis

The following shall apply in succession as the basis for the contract, if available:

– the order letter and any enclosed specifications,

– additional terms and conditions of the Principal, insofar as they are referred to in writing, as well as additional written contractual agreements, if any,

– these General Terms and Conditions,

– general supplementary conditions for occupational safety (AZB-Arbeitssicherheit)

– general regulations applicable to the order and the recognized rules of technology, e.g. VDE regulations and statutory regulations,

– contractual conditions of the Contractor which have been included in the service or delivery contract and which the Client has adopted in whole or in part after separate agreement with the Contractor for the reason that they contain technical details or other service-specific regulations and for this reason do not constitute general terms and conditions of business provided by the Contractor.

In the event of contradictions between these General Terms and Conditions and the Contractor’s General Terms and Conditions, the statutory provisions shall apply instead of the contradictory terms and conditions, insofar as the contradiction extends.

4 Changes to the terms and conditions

4.1 ESP is entitled to change the GTC and the Special Terms and Conditions.

4.2 Changes are always made if there is a valid reason for this and the essential regulations of the contractual relationship are not deviated from. In this respect, the amendment is an adjustment to developments that were not foreseeable at the time of the conclusion of the contract (technical innovations, consideration of regulatory decisions and new case law, discontinuation of advance services from third parties, elimination of difficulties in the execution of the contract, regulatory gaps, etc.), and whose non-consideration would disturb the contractual balance to a not insignificant extent.

4.3 ESP shall notify Customer in writing of the proposed changes. They shall be deemed to be approved by the Customer if the Customer does not object in writing. The objection must be received by ESP within six weeks after notification of the change. If such an objection is made, the contract will be continued without the change. The right of the contracting parties to terminate the contract remains unaffected. ESP shall point out these consequences to the Customer in the written notification.

4.4 In case of changes of the value added tax as well as costs for the interconnection and/or for services of other providers, which are provided under use of ESP, ESP may adjust the respective price list accordingly to the change without any right of termination of the Customer. In this case, the change shall take effect upon notification, unless a later date is expressly determined by ESP.

5 Services of ESP (scope, modification and limitation)

5.1 ESP shall enable the Customer to access its existing communication infrastructure and to use its services. The type and scope of the contractual services result from the contract including the GTC and the Special Terms and Conditions as well as the respective applicable price lists.

5.2 Insofar as ESP provides services and performances free of charge, these can be discontinued at any time, at short notice and without the consent of the customer. Customer shall have no rights arising from the discontinuation, in particular no claim for reduction, reimbursement or damages. ESP shall notify such changes in a timely manner to the extent possible.

5.3 ESP is obligated to create and maintain its services ready for operation. The Customer is aware that services in the ITC area are subject to changes due to technical innovations as well as possible new legal and/or official regulations. Service and performances can therefore be adapted by ESP to the respective state of development in the telecommunication sector. However, Customer shall not have a claim for adaptation of the scope of services to the technical innovations if ESP has provided the service on the basis of the technical standard valid at the time of the conclusion of the contract and if there is no legal obligation for adaptation. ESP reserves the right to change its services for compelling technical or operational reasons to the extent necessary and reasonable for Customer, to the extent that the situation is not otherwise economically solvable for ESP with reasonable effort or is otherwise unavoidable.

5.4 ESP is entitled to have the provision of its services temporarily or permanently, in whole or in part, performed by a third party. A contractual relationship between the third party and the customer is not established. The invoicing is carried out exclusively by ESP.

5.5 ESP is entitled to block the access to an offer which has an illegal or immoral content at any time without prior notice.

5.6 In case of the provision/utilization of services outside of the Federal Republic of Germany, foreign laws, regulations or other country-specific peculiarities or transmission-technical circumstances can lead to the fact that the contract cannot be carried out in the intended manner or adjustments of the contract become necessary.

6 Performance dates and deadlines

6.1 Dates and deadlines for the provision of the Services shall result from the agreement with Customer. They are only binding for the commencement of the Services if ESP has expressly confirmed them in writing or if Customer has in due time created all conditions within its sphere of influence for the execution of the Services (e.g. submission of all documents and plans, obtaining all approvals and releases, etc.) by ESP so that ESP can already provide the relevant Service at the specified time. Agreed deadlines and dates shall be postponed in the event of a temporary and unforeseeable impediment to performance for which ESP is not responsible by the period for which this impediment lasts.

6.2 The provision periods shall be extended, without prejudice to ESP’s rights due to Customer’s default, by the period during which Customer fails to fulfill its obligations to ESP. If ESP has done all that is necessary to provide the Service by the time the provision of the Service by ESP is delayed due to circumstances for which Customer is responsible, ESP shall be entitled, if Customer fails to comply with a grace period of 10 days set by ESP and asserted in writing, to invoice Customer for the monthly usage-independent fee.

6.3 If ESP is in default of performance, Customer shall be entitled to withdraw from the contract after a written reminder and after expiration of a reasonable grace period of at least fourteen days set by Customer.

7 Duties and obligations of the customer

7.1 Customer shall treat the facilities and equipment provided to him with care and diligence, shall protect them from external electrical voltage and/or magnetic influences and shall refrain from modifications or other interventions, in particular for maintenance. Work of any kind on this is reserved exclusively for ESP or third parties commissioned by ESP For this purpose, Customer shall allow employees of ESP or its vicarious agents access to the Customer Connections installed by ESP in such a way as to allow ESP to fulfill its contractual obligations. Customer shall be responsible for its own technical equipment enabling the use of ESP’s services.

7.2 Customer shall provide free of charge and in a timely manner in the area of its sphere of operation all conditions necessary for the installation and service provision: e.g. provision of suitable installation rooms, suitable cable routes, as well as electricity and grounding. The customer shall maintain all of the above in a functional and proper condition for the duration of the contract.

7.3 In particular, the Customer shall be obliged to

• provide truthful information on his data in the application and to notify or have an authorized representative notify him without delay of any changes to his name (in the case of companies also changes to the legal form, billing address or registered office), address, bank details (contractual data) and fundamental changes to his financial circumstances (e.g. application to open or initiation of insolvency proceedings, initiation of compulsory enforcement measures), insofar as this is necessary for the proper execution of the contractual relationship. If the customer culpably fails to notify the change in his contractual data, he shall bear the costs for the determination of the data required for the execution of the contractual relationship.
• assist ESP in obtaining all permits required to be obtained by ESP and necessary to perform the Services. In addition, Customer shall ensure compliance with the conditions and requirements attached to the permits. To the extent that obtaining permits, approvals, etc. from the landowner/building permit authority and others is required for the performance of the contracted service, this shall be a primary obligation of Customer. Customer is aware that due to Customer’s failure to fulfill this primary obligation in a timely manner, ESP may not be able to provide the service provision or perform its contractual services in a timely manner. In this case, however, ESP shall be entitled, without prejudice to the rights arising from default, to proceed in accordance with Section 8(2) and consequently to invoice Customer for the monthly usage-independent fees payable.
• provide ESP with all information and documents necessary to complete the performance of the Services. In particular, Customer shall inform ESP of any existing technical or other equipment, utilities, objects and substances (e.g., water, electrical and gas lines or asbestos), that could be damaged during the installation of equipment or that could endanger or injure the persons engaged in the installation. Customer shall immediately notify ESP of any subsequent changes to such information. Customer shall indemnify ESP against any claims by third parties based on the breach of these information obligations.
• notify ESP in a timely manner of new applications or changes to existing applications that impact service delivery.
• comply with all legal official regulations relevant for the use of the services to be provided by ESP and to use only facilities and devices that comply with the regulations of the Federal Republic of Germany. Customer is obligated to use the contracted services as intended, properly and in accordance with the relevant applicable laws and legal regulations, in particular the recognized and current principles of data security according to the Federal Data Protection Act (BDSG), the Telecommunications Act (TKG) and the legal provisions issued on the basis of this Act and to refrain from illegal acts. This includes, in particular, not making threatening or harassing calls to third parties, acting unfairly, manipulating or circumventing access restrictions and security devices, falsifying sender and header information or manipulating it in any other way, and not offering, disseminating or encouraging the dissemination of insulting, defamatory, immoral or illegal content. Customer shall immediately report to ESP verbally and then again in writing any abusive or illegal use of the provided services by third parties or any suspicion thereof. In particular, the customer shall take appropriate measures against the knowledge of illegal content or immoral content, especially by children and adolescents or other persons in need of protection.
• immediately notify ESP of any recognizable damage and defects to the ESP equipment located on the property of the Customer or the owner or authorized user, as well as to the connection equipment, and of any other circumstances that could impair the provision of the Services by ESP, and to assist ESP in determining their causes and in eliminating them to a reasonable extent. If it turns out that the malfunction is not due to a defect in the services provided by ESP, ESP shall be entitled to charge Customer for the expenses incurred. Further claims for damages remain unaffected.

7.4 Customer agrees to ensure that the network infrastructure or parts thereof are not overloaded by abusive excessive use.

7.5 Customer shall, to the extent necessary for the performance of services by ESP for reasons within Customer’s sphere, designate a sufficiently qualified contact person who shall be available to ESP at any time within the scope of his abilities to answer technical inquiries of any kind.

7.6 It is the sole responsibility of the customer to take the necessary security precautions against all kinds of misuse, loss of data, transmission errors and operational disturbances – also by relatives – unless otherwise agreed. However, services of ESP do not release the customer from his obligation to comply with the usual and recognized security standards. This includes in particular:

1. a) to keep strictly secret the personal passwords and user or access identifiers obtained for the purpose of accessing the Services and to immediately change any initial passwords provided or pre-installed to it by ESP. Customer shall immediately inform ESP as soon as it becomes aware that unauthorized third parties have become aware of the password or access data,
2. b) regular change of passwords and usual access control,
3. c) use of regularly updated anti-virus programs,
4. d) a plausibility check of incoming data,
5. e) regular data backup after each working day on which the data stock has been changed. The obligation also includes the complete data backup in particular before each start of work of ESP or before the installation of delivered hardware or software,

f) as well as the thorough testing of each program for freedom from defects and usability in its concrete situation before he starts the operative use of the program. This shall also apply to programs which the customer has received from ESP within the scope of warranty and maintenance.

8 Prices

8.1 Unless expressly agreed otherwise, the prices stated in the purchase order or the order shall be fixed prices.

8.2 By accepting the offer or executing the order, the Customer confirms that it has informed itself of all factors influencing the pricing.

8.3 The remuneration (fee) to be paid by the Customer shall be determined in accordance with the respective valid price list for the provision of services, which was communicated to the Customer at the time of the conclusion of the contract for the respective agreed services or in the event of a price change. All prices are exclusive of the value added tax applicable at the time of the provision of the services.

8.4 With the exception of Section 6.2, the Customer’s payment obligation shall commence on the day on which the contractual service is made available for operation. If usage-independent charges payable monthly are to be paid for parts of a calendar month, each day of the month for which a payment obligation exists shall be charged. All charges – usage-dependent and usage-independent charges – are payable by the customer 14 days after invoicing.

9 Assignment of claims/offset

9.1 The Customer shall not be entitled – without prejudice to the assignment of a monetary claim in accordance with § 354a of the German Commercial Code – to assign its claims against ESP to third parties or to have them collected by third parties without the prior written consent of ESP.

9.2 ESP is entitled to set off against payment claims of the customer with due payment claims directed against the customer, also of companies affiliated with ESP in the sense of §§ 15 ff. AktG, in whole or in part. The same applies to rights of retention. Furthermore, ESP is entitled to assign all claims arising from the contract concluded with the customer to third parties without the customer’s consent.

9.3 The customer may only set off claims that are undisputed, ready for decision or legally established. Rights of retention shall remain unaffected.

10 Invoicing and payment

10.1 Payments shall be made in accordance with the respective individual contractual agreement, taking into account the date of receipt of the invoice. The Customer is obliged to check invoices immediately and carefully.

10.2 ESP shall issue an invoice to Customer for the fee to be paid. Invoicing shall be done on a monthly basis. ESP reserves the right to use other billing periods and to demand partial payments from the Customer. An invoice dispatch by e-mail is free of charge, in case of postal dispatch ESP can charge a fee of 2,50 € per invoice.

10.3 The invoice amount shall be collected from Customer’s account by direct debit. The customer gives ESP a direct debit authorization for this purpose. Other methods of payment require a separate agreement. The direct debit shall not be made before the expiry of 14 days after invoicing. The customer is obligated to maintain a coverage in the amount of the invoice amount on the account specified by him at the time of the direct debit collection. For each unpaid or returned debit ESP can charge a processing fee of 10,00 €, as far as the customer is responsible for the cost-triggering event. The customer remains free to prove the occurrence of a lesser or no damage.

10.4 Customer may object in writing to an invoice issued to it by ESP within a period of 8 weeks after receipt of the invoice. If no objections are raised within the aforementioned period, the invoice shall be deemed approved. To meet the deadline it is sufficient to send the complaint in time. If the customer proves that the services invoiced can not be attributed to him, ESP has no claim to the fee. The claim is also void if facts justify the assumption that third parties have influenced the charged connection fee by unauthorized changes in public telecommunication networks.

10.5 If the Customer was prevented through no fault of his own from complying with the objection period, he may make up the objections two weeks after the obstacle has ceased to exist.

10.6 Delivery and services for other expenses, outside of the agreed service, shall be charged according to the actual cost of consumed material as well as working and travel times in accordance with ESP’s price list valid at the time the service is provided.

10.7 If, after conclusion of the contract, taxes, fees, charges, requirements or similar sovereign burdens have a cost-increasing or cost-reducing effect on the provision of the services, the current fee shall be increased or decreased accordingly.

11 Default of the customer

11.1 If the customer is in default with the payment of the fee, ESP is entitled to charge default interest in the amount of 9 percentage points above the respective base interest rate from the date of default.

11.2 ESP is furthermore entitled to charge a flat rate of 40,00 € for the reminder costs incurred by the delay in payment. The customer is allowed to prove that ESP has incurred no or less damage in the individual case.

11.3 If the customer is in default with the fulfillment of his other duties and obligations or if he culpably violates them, ESP may demand compensation for the damage incurred by it, including any additional expenses. The assertion of further claims of ESP due to default of the customer, regardless of the legal ground, remains unaffected.

12 Security

12.1 As far as ESP has doubts about the creditworthiness of the customer or after conclusion of the contract a substantial deterioration of the financial circumstances of the customer becomes known (for example because the customer is in default of payment), ESP is entitled to provide still outstanding services only against advance payment or security in Euro according to the legal provisions.

12.2 The amount of the security deposit depends on the amount of the average charges of the customer within one month and the outstanding payment obligation of the customer as well as in the case of court-ordered execution on the agreed contract term.

12.3 The security can be provided in the form of a guarantee declaration of a credit institution authorized in the European Union. ESP is entitled to satisfy itself at any time from a security provided by the customer because of open demands from the contractual relationship. If ESP makes use of the security deposit and the contractual relationship is continued, the customer is obliged to replenish the security deposit immediately to the originally agreed amount. The security deposit will be released after termination of the contractual relationship, as far as the customer has settled all claims of ESP.

12.4 In the event of failure to provide security, ESP shall be entitled, after a corresponding reminder with reference to the consequences of failure to provide security, to suspend or block the contractually owed performance and to terminate the contract without notice. ESP expressly reserves the right to assert further rights.

13 Blocking

13.1 ESP or the companies contracted by ESP shall be entitled to block the Customer’s access to ESP’s services in accordance with the provisions of § 45k TKG with costs if the Customer is in default with payment obligations in the amount of at least € 75.00 and any security provided has been used up and ESP has threatened the Customer with this block at least two weeks in advance in writing with reference to the possibility of seeking legal protection before the courts. The costs for the blocking are specified in the respective valid price lists.

13.2 In all other respects ESP is only entitled without observance of a waiting period and without announcement to carry out a blocking if

1. a) the customer has given reason to terminate the contractual relationship without notice and the blocking is the milder means within the scope of proportionality or
2. b) there is a threat to the equipment of ESP or contractual partners of ESP, in particular to the network due to repercussions from equipment or a threat to public safety, or
3. c) the call volume has increased in comparison to the previous six billing periods and therefore the amount of the fee demand has increased in comparison to the previous six billing periods and facts justify the assumption that the customer will object to this fee demand.
4. d) ESP has confirmed knowledge that the customer is unlawfully sending or transmitting information, items, or other services and that there is a threat of a repetition despite fruitless warnings (§ 45o TKG).

13.3 In the event of a justified block, Customer shall remain obligated to pay the remuneration owed to ESP. This also includes a monthly base price for the provision of the services.

13.4 Blocks are limited to the service concerned within the scope of the technical possibilities and are lifted immediately as soon as the reasons for the execution have ceased to exist. If it is possible to block outgoing calls, a one-week outgoing call block shall be carried out first before blocking general network access.

14 Disclosure to third parties

14.1 Customer may not, without the prior written consent of ESP, transfer (resell) the provided Services in whole or in part, commercially or in any other way, to third parties against payment or make them available to third parties free of charge. Third parties in the sense of this regulation are also companies affiliated with the customer according to § 15 ff German Stock Corporation Act. In case of violation ESP can terminate the contract without notice for an important reason. Furthermore ESP can demand from the customer to be put in the same position as ESP would be without the use.

14.2 If the use by third parties is permitted, the Customer shall properly instruct them in the use of the Services.

14.3 The Customer shall be liable for all damages and shall be obligated to pay the fees resulting from the authorized or unauthorized use of the Services by third parties, to the extent that the Customer is responsible for such use. Within his area of responsibility, the Customer shall be responsible for proving that he is not responsible for the use.

15 Interruption of services / maintenance work / force majeure

15.1 ESP and the companies contracted by it are entitled to interrupt a service, to limit its duration or to stop it in any other way, temporarily or in part or completely, as far as this is necessary for reasons of public security, the security of the network operation, the protection against misuse of the services, the maintenance of the network integrity (in particular the avoidance of serious disturbances of the network, the software or the stored data), the interoperability of the services, the data protection, the fight against spam or computer viruses/worms or for the performance of operational or technically necessary work. Claims of the customer for damages do not arise from this.

15.2 Interruptions for the implementation of service measures shall be carried out without notice, provided that such interruptions are carried out during periods of low usage and, in the estimation of ESP, are likely to result only in a short-term interruption of the service. ESP will notify Customer in an appropriate manner of the nature, extent, and duration of any prolonged temporary restrictions or limitations. If Customer is dependent on uninterrupted use of the Contractual Service or on being able to establish a connection using the Contractual Service at any time and has notified ESP of this in writing, stating reasons, ESP shall also notify Customer in advance of any foreseeable cessation or restriction of service and its commencement.

15.3 The obligation to notify about the beginning of the discontinuation does not exist if the notification is objectively not possible beforehand according to the circumstances or if it would delay the elimination of interruptions that have already occurred.

15.4 ESP shall be entitled to interrupt a service for a short period of time without notice for billing reasons.

15.5 ESP shall investigate disruptions of its services and technical equipment within the agreed time limits and shall immediately remedy such disruptions within the existing technical and operational possibilities. Maintenance work carried out by ESP on the facilities or services shall not constitute a malfunction in this sense.

15.6 The fault elimination shall be carried out by ESP providing an on-call service for fault acceptance and elimination, which shall be available to the Customer in the agreed time.

15.7 The fault elimination obligation shall not apply to faults for which Customer is responsible or a fault reported by Customer does not exist. A malfunction for which Customer is responsible shall be deemed to exist in particular if it is caused by unauthorized interference by Customer or by third parties commissioned by Customer with the services and/or facilities provided by ESP or by improper operation or handling of the facilities by Customer or by third parties commissioned by Customer. Customer shall reimburse ESP for any expenses incurred by ESP as a result of the inspection of the facilities and services.

15.8 If, at Customer’s request, changes or improvements are made at the same time as the fault rectification, these shall be remunerated separately from the fault rectification.

15.9 If a significant impediment to one or more or all of the Services for which ESP is responsible lasts for more than 5 consecutive days without interruption, Customer shall be entitled to reduce the monthly charges for the period of the impediment accordingly. A significant impediment exists if

1. a) the customer can no longer access the ESP infrastructure for reasons for which he is not responsible and thus can no longer use the agreed services or
2. b) the use of the agreed services as a whole is significantly impeded or the use of individual of the agreed services becomes impossible or is subject to comparable restrictions.

15.10 Further claims of the Customer due to disruption are limited to damages according to § 18.
15.11 ESP shall not be liable for events of force majeure that make it significantly more difficult or impossible for ESP to provide its services. If ESP is prevented from proper performance or obligation by events of force majeure, ESP shall be released from its obligation to perform for the duration of the impediment and shall be entitled to postpone the performance of its obligations for the duration of the impediment and a reasonable start-up period. Force majeure shall mean all unforeseeable events or events which, even if they were foreseeable, are beyond the control of ESP and then effects even on the performance of the contract could not have been prevented by reasonable efforts of the parties. Such events include, but are not limited to, industrial action (strike, lockout), war, natural disasters, governmental actions, failure of communications networks and gateways of other operators, failure of transportation or power, disruption in the services of a service carrier, unforeseen failure to deliver by suppliers or their subcontractors, provided they have been carefully selected. This also applies to third parties which ESP uses for the fulfillment of the contract. If ESP cannot provide the contractually owed service due to force majeure, there is no payment obligation of the customer for this time. If the end of the disruption is not foreseeable or if it lasts longer than 21 days, each party is entitled to withdraw from the contract, any fees paid in advance will be refunded.

15.12 In the event of disruptions which have their cause outside the area of responsibility of ESP (force majeure), ESP shall be correspondingly released from its obligation to perform and any liability for the duration of the failure/disruption. Disruptions in this sense are those for which ESP is not responsible (e.g. service failures of third parties, in particular line and power failures at third parties, industrial action, also at third parties, mandatory official or judicial orders, natural disasters, war, etc.). Disruptions in this sense shall also include weather-related restrictions with regard to transmission speed or the availability of data reception or data transmission via satellite.

ESP does not assume any warranty for its services, as far as disturbances are due to

1. a) a violation of the duties and obligations of the customer (§ 9),
2. b) the technical equipment or the network infrastructure of the customer,
3. the unsuitable, improper, faulty connection to the telecommunication network of ESP by the customer or third parties and are not based on a fault of ESP.

16 Liability

16.1 ESP shall be liable without limitation for damages caused by ESP, its legal representatives or its vicarious agents intentionally or by gross negligence as well as for damages resulting from injury to life, body or health. This does not apply to financial losses caused by ESP in connection with the provision of telecommunication services to the public due to gross negligence. For these damages ESP is liable exclusively in accordance with clause 16.2.

16.2 For financial losses of the Customer caused by ESP, its legal representatives or its vicarious agents in connection with the provision of telecommunication services to the public (§ 44a TKG) due to negligence, ESP shall be liable up to an amount of 12,500.00 Euro per claim. If financial losses are caused to the end customers of the Customer due to negligent action or omission on the part of ESP or its vicarious agents, ESP shall be liable up to an amount of 12,500.00 Euro per end customer of the Customer. Towards the totality of the injured parties, ESP’s liability is limited to 10 million euros per event causing the damage. If the sum of individual damages payable as a result of the same event exceeds this maximum limit, the compensation shall be reduced in proportion to the ratio of the sum of all claims for damages to the maximum limit.

16.3 Liability is further excluded to the extent that damages have arisen from malfunctions and failures that are beyond the scope of responsibility of ESP. This applies in particular to damages which are due to errors and defects in products of third parties which are provided by ESP within the scope of its services, unless the error or defect should have been recognized by ESP before the provision of services.

16.4 ESP shall not be liable for interference as soon as the communication connection is used by third parties. If ESP provides a connection with access to the public Internet, Customer shall ensure that no misuse is carried out with it.

16.5 For other damages caused by ESP, its legal representatives or other vicarious agents only by slight negligence, ESP shall be liable, subject to the provision in clause 16.1, only for the breach of material contractual obligations (cardinal obligations), whereby its liability shall be limited to the foreseeable damage typical for the contract.

16.6 ESP shall be liable for the loss of data and programs and their recovery only to the extent that such loss could not have been avoided by reasonable and appropriate precautionary measures taken by Customer, in particular the daily making of backup copies of all data and programs and Customer’s duties and obligations under Clause 7.

16.7 In all other respects the liability of ESP is excluded. ESP is in particular not liable for further consequential damages due to disturbances and restrictions, unless they are not caused by ESP’s fault and are unavoidable. If the circumstances last longer than 14 days, the customer has an extraordinary right of termination. The liability according to mandatory legal regulations (e.g. according to the regulations of the product liability law) remains unaffected.

16.8 ESP is not liable for the information transmitted via its services; neither for their completeness, correctness or topicality, nor that they are free of third party rights.

16.9 With regard to the software or hardware provided by ESP against payment, the liability without fault according to § 536a Abs. 1 BGB is excluded.

16.10 Customer is obligated to take reasonable measures to avert and mitigate damages.

• Customer shall be liable for damages caused by violations of its (cooperation) duty and obligation under the Agreement or the General and Special Terms and Conditions and shall indemnify ESP against claims of third parties to the extent that ESP is held liable by third parties due to a violation of the aforementioned obligations by Customer. This does not apply if Customer is not responsible for the breach.

17 Term and termination

17.1 The contract shall be concluded for the contractually agreed term. If a contract term has not been agreed individually, it shall be 36 months.

17.2 Contracts with a minimum term shall commence with the provision of the service or with the contractually agreed date. They may be terminated by both contracting parties at the earliest at the end of the agreed minimum term. Notice of termination must be received by the other contracting party in writing at least 3 months before the date on which it is to take effect. If the contractual relationship is not terminated, it shall be extended by one calendar year in each case.

17.3 The right of both contracting parties to terminate the contract without notice in writing for good cause remains unaffected. An important reason for ESP exists in particular if the customer:

1. a) uses the services fraudulently or
2. b) violates material provisions of these GTC and, despite written notification, fails to take appropriate measures to remedy the violation immediately, or
3. c) violates criminal law when using the services or if there is a correspondingly urgent suspicion of a crime, or
4. d) stops his payments in an unjustified manner, partially or completely, or
5. e) is in default of payment of the invoice or a significant invoice amount, if the amount is at least EUR 75.00, for two consecutive months within the meaning of § 45k TKG, or
6. f) becomes insolvent, submits a statutory declaration in lieu of an oath, or insolvency proceedings are instituted or applied for with respect to his assets, or
7. g) does not or only incompletely comply with the request for the provision of security, or
8. h) dies and his company is dissolved or the customer ceases his business activities permanently. If the important reason for ESP is that the customer has violated important contractual obligations, then a termination on the part of ESP is only permissible if the customer has previously been warned unsuccessfully or has allowed a deadline set for the remedy to expire fruitlessly. However, warning and setting of a deadline are not necessary if they obviously do not promise success or if the immediate termination is exceptionally justified under consideration of the interests of both parties.

17.4 If ESP terminates the contract before the end of the minimum contract period for good cause for which Customer is responsible, Customer shall be obligated to pay liquidated damages. The amount of damages shall be 75% of the sum of the remaining pending usage-independent remuneration that would have been payable until the expiration of the regular contract term. ESP is entitled to claim a higher damage upon proof. However, the customer is allowed to prove that no damage or a significantly lower damage has occurred.

17.5 If ESP terminates the contract for a reason for which Customer is responsible before notification that the Services are ready for operation or before agreed modification work has been carried out, Customer shall reimburse the expenses for work already carried out. Customer shall be entitled to prove that ESP has not incurred any damage at all or has incurred less damage.

18 Defects and warranty

18.1 Equipment, items and materials delivered by ESP under the Agreement shall remain its property until paid for in full. Upon delivery of the equipment, items and materials to the Customer, the risk shall pass to the Customer.

18.2 If the Customer is not a person in the sense of § 310 paragraph 1 of the German Civil Code (BGB), the following shall apply: The Customer shall inspect the item immediately after delivery, insofar as this is feasible in the ordinary course of business, if necessary subject it to a functional test and, if a defect becomes apparent, notify ESP without delay. The customer shall handle the item with the care of a prudent businessman. The duty to examine also exists if selection samples are sent. If the notification is omitted, any liability for defects for the item is excluded.

18.3 The quality of the item shall be deemed approved if a notice of defect is not received by ESP within 14 days after delivery of the item. Hidden defects that cannot be discovered within the aforementioned period can only be claimed if the notice of defects is received within one year after the delivery of the item.

18.4 In the case of delivery, the customer shall inspect the item immediately upon receipt for obvious damage and send a notice of defect to ESP in the case of damage within 14 days after delivery of the item. Hidden defects that cannot be discovered within the aforementioned period can only be claimed if the notice of defect is received within one year after the delivery of the item.

18.5 The above provisions shall not apply if and to the extent that ESP has given a guarantee of quality or an assurance or has fraudulently concealed a defect.

18.6 If the item is defective, ESP shall be entitled, at its own option, to repair the item twice or to deliver/manufacture a replacement. § 635 paragraph 3 BGB remains unaffected.

18.7 The customer is only entitled after unsuccessful second rectification or defective replacement delivery/manufacture to demand supplementary performance of his choice, the reduction of the agreed remuneration (reduction) or cancellation of the contract (rescission). In the case of a contract for work and services, the customer shall furthermore be entitled to remedy the defect itself and to demand reimbursement of the expenses required for this. In the cases of §§ 439 para. 3, 635 para. 3 BGB (German Civil Code), the customer shall be entitled, notwithstanding sentence 1, to immediately demand a reduction of the agreed remuneration (abatement) or rescission of the contract (withdrawal).

18.8 The assertion of claims for damages against ESP within the scope of liability for defects shall be excluded outside of bodily injury and damage to health, insofar as the damages are attributable to a slightly negligent breach of non-contractual obligations by its bodies or vicarious agents. The assertion of claims for damages in lieu of performance shall also be excluded within the scope of liability for defects in the event of a slightly negligent breach of duty by its legal representatives or vicarious agents.

18.9 Subject to the following paragraph, liability for defects shall be excluded in the case of the delivery of used goods, insofar as these are customers within the meaning of Section 310 (1) of the German Civil Code (BGB).

18.10 The liability for defects is not excluded if and insofar as a guarantee of quality or warranty was given or a defect was fraudulently concealed as well as in case of injury to life, body or health.

18.11 Insofar as liability is excluded or limited above, this shall also apply with regard to the personal liability of ESP’s employees, staff and organs as well as their vicarious agents including their employees, staff and organs.

18.12 If the customer is a person in the sense of § 310 para. 1 BGB (German Civil Code), claims for defects in the manufacture and delivery of new items shall become time-barred after one year. If the customer resells the item delivered by ESP in the course of its ordinary business operations, its rights of recourse under § 478 BGB shall remain unaffected – in deviation from the periods specified in sentence 1.

18.13 If the Customer is not a person within the meaning of Section 310 (1) of the German Civil Code (BGB), claims for defects shall become statute-barred after two years in the case of manufacture and delivery of new items and after one year in the case of delivery of used items.

18.14 In the event of liability due to intent or gross negligence as well as in cases of a guarantee of quality or assurance or a fraudulently concealed defect, the statutory limitation periods shall apply.

19 Hardware and software transfer

19.1 Depending on the type of contract/product and the requirement, the Customer needs hardware for the use of the services offered by ESP, which, depending on the type of contract/service/product, can generally be provided by ESP for a fee and in exceptional cases on a rental basis or can be purchased by the Customer from ESP or from a retailer. Hardware provided by ESP remains the property of ESP. As far as it seems necessary for ESP for technical and/or operational reasons, ESP can exchange this hardware at any time.

19.2 ESP is entitled to charge a deposit fee for the provision of Hardware. The deposit fee is charged once, in principle with the next monthly invoice. The deposit fee will be refunded without interest at the end of the contractual relationship with the following monthly invoice.

19.3 ESP reserves the right to update the software/firmware of the provided hardware and/or hardware at any time without corresponding prior notice to Customer free of charge.

19.4 The customer is obliged to inform ESP immediately about all impairments of his right of ownership of the provided hardware, for example by seizure, damage or loss, and to notify ESP in writing within two days after notification by telephone. If Customer is responsible for the impairment, ESP may terminate the Agreement extraordinarily and claim damages.

19.5 Upon termination of the contract, the customer is obliged to return the provided hardware, including the cables and other accessories handed over to the customer, to ESP at his own expense immediately, at the latest, however, within 14 days. If the return is not made, ESP is entitled to charge the customer for the hardware including the mentioned accessories.

19.6 The Customer shall be liable for all damage to or loss of the provided hardware for which it is responsible at the net new value. In case of a use of these devices of more than one year, 15 % of the net new value per expired contract year shall be credited to the compensation sum in favor of the customer. Customer shall be at liberty to prove that ESP has suffered no or less damage.

19.7 If ESP provides Customer with access software, such software shall only be used in unmodified form on Customer’s computer. With the use the customer automatically agrees with the license conditions of the software manufacturer.

19.8 Insofar as industrial property rights (e.g. trademark rights or copyrights in the case of software licenses) as well as exploitation and consequential rights derived therefrom exist in respect of the technical equipment, computer and software programs made available by ESP in connection with the provision of services, such rights shall not be transferred to Customer unless this is expressly agreed in writing. The ownership of industrial property rights of any kind whatsoever shall in this respect be the exclusive property of ESP or its contractual partners.

19.9 Customer shall neither publish without authorization nor use for its own purposes any industrial property rights that ESP has made available to a third party.

19.10 Granted rights of use may not and cannot be transferred. However, ESP grants to the Customer in this respect a non-exclusive and non-transferable right to use computer/software programs for the purpose of using the Services for the duration of the Agreement. The customer is not permitted to make copies of the software provided, in whole or in part, with the exception of a single backup copy for backup purposes. Under no circumstances will the customer modify the software in whole or in part or determine its source code. Nor is the customer permitted to make any other modifications or revisions to the software or to implement the software in other software programs. The customer must delete backup copies immediately after the end of the contract.

19.11 Insofar as Customer receives in writing solution proposals and/or solution approaches for the implementation of the services to be provided by ESP in the context of the preparation of the offer by ESP, ESP shall remain the owner of these written documents. All copyrights to these documents shall in principle belong exclusively to ESP, unless otherwise expressly agreed. However, Customer is granted a simple, non-exclusive and non-transferable right of use in this respect. The customer is not allowed to make copies of the documents provided to the customer in whole or in part. Under no circumstances will Customer make these documents available to third parties without the prior express consent of ESP.

20 Privacy

20.1 ESP is entitled to collect, process and use the data arising in connection with the contractual relationship within the meaning of the EU Data Protection Regulation (EU-DGSVO) in its currently valid version, as well as to pass this data on to companies affiliated with ESP within the meaning of §§ 15 ff. AktG (German Stock Corporation Act).

20.2 In order to ensure the operational processes and security requirements of ESP, personal data shall be collected, processed and used within the scope of the execution of the order, taking into account the EU Data Protection Regulation (EU-DGSVO) (, collected, processed and used. In particular, this refers to data and images of security components (e.g. badges, badge management systems, time/access and video systems, etc.), as well as the respective related infrastructures.

20.3 The Customer authorizes ESP to process, store and evaluate the data received in connection with the business relationship in accordance with the data protection laws for the execution of the contracts or in case of complaints.

20.4 Unless otherwise expressly agreed in writing, Customer’s information submitted to ESP, with the exception of personal data, is not confidential. Information and documents, which are marked as confidential or as business or trade secret or are recognizable as such, have to be treated confidentially by the parties also beyond the contractual relationship, unless one of the parties is legally obliged to provide information about this.

20.5 ESP agrees to comply with the statutory provisions on data protection, in particular that of the EU Data Protection Regulation (EU-DGSVO), the Telecommunications Act (TKG) and the Telemedia Act (TMG) and to maintain the secrecy of telecommunications and shall ensure that all persons entrusted by ESP with the execution of this Agreement also comply with the relevant provisions.

20.6 Personal data of the Customer will only be collected, stored, used or transmitted to third parties commissioned for the fulfillment of the contract, if the person concerned has consented or if EU-DGSVO, TKG, TMG or another legal provision orders or permits this. ESP collects, stores and uses the personal inventory data of the customer only in the context of the contractual purpose. Granted consent can be revoked at any time for the future.

20.7 ESP is furthermore entitled to collect, store and use the telephone number and the postal address for the purpose of advising the Customer, for advertising and for market research for its own purposes, as long as the Customer does not object in writing or electronically.

20.8 For the purpose of direct advertising and market research, the personal data of the Customer shall be stored as long as there is an overriding legal interest of ESP in the processing in accordance with the relevant legal provisions, but no longer than for a period of two years beyond the end of the contract.

20.9 The Customer shall have rights against ESP to information, correction, deletion, restriction of processing and data portability in accordance with the relevant statutory provisions, in particular in accordance with Art. 15 to 20 DSGVO.

20.10 The Customer may at any time object to the processing of its data for purposes of direct advertising and/or market research vis-à-vis ESP; furthermore, telephone advertising by ESP shall only be carried out with the prior express consent of the Customer.

20.11 The Customer has the right to complain to the competent supervisory authority if he is of the opinion that the processing of personal data concerning him violates data protection provisions

20.12 ESP may store and transmit connection data as far as it is necessary for the billing of ESP with other companies.

20.13 ESP reserves the right to commission third parties (e.g. law firms or collection agencies) with the collection of outstanding debts, in which case the billing data required for collection shall be communicated in accordance with the statutory provisions.

20.14 It may be necessary to collect, store and process certain personal customer data in particular for the purpose of

1. a) Provision, use and billing of ESP services;
2. b) processing of fault reports within support services or to detect and prevent service creep (§ 9 Telecommunications Data Protection Ordinance).

20.15 The connection data stored for billing purposes shall be deleted in accordance with the relevant statutory provisions unless the customer expressly requests longer storage.

20.16 After a deletion of the data required for billing, as required by law or requested by the Customer, the burden of proof for the correctness of this data shall be reversed to the disadvantage of the Customer. This means that ESP no longer has to prove the correctness of the deleted data, but the customer has to prove the incorrectness of the deleted data.

20.17 ESP has no influence on the observance of data protection by the subnetwork operator of the Customer (§ 4 clause 1). In this connection any liability of ESP is excluded.

21 Conciliation

If a dispute arises between the customer and ESP as to whether the latter has fulfilled an obligation to the customer relating to the terms and conditions or performance of the contracts for the provision of the networks or services and relating to the following provisions: Sections 43a, 43b, 45 to 46 of the Telecommunications Act (TKG) or the statutory orders issued on the basis of these provisions and Section 84 of the Telecommunications Act (TKG), the customer may initiate conciliation proceedings with the consumer conciliation body of the Federal Network Agency by submitting an application.

Applications for conciliation can be sent to: “Bundesnetzagentur, Verbraucherschlichtungsstelle (Referat 216), Postfach 8001, D-53105 Bonn, Germany” or by fax to: (030) 22 480 518 or online at: http://www.bundesnetzagentur.de. The Federal Network Agency regulates the further details of the procedure in conciliation rules, which it publishes. Participation is voluntary for ESPs.

22 Place of performance/jurisdiction/choice of law

The place of performance for deliveries and services of the Contractor shall be the shipping address/place of use specified by the Client or the agreed place of performance. The place of jurisdiction for all disputes arising from or in connection with this contract shall be Saarbrücken, Germany, unless otherwise expressly stipulated by law. The law of the Federal Republic of Germany shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.

23 Severability clause

Should individual provisions of these terms and conditions violate mandatory law in whole or in part or be otherwise invalid or void, this shall not affect the validity of the remaining provisions.