Language
1.1 These General Terms and Conditions (hereinafter "GTC") of MTC Solutions GmbH (hereinafter "Provider") apply exclusively to contracts for the provision of services in the field of Software-as-a-Service (hereinafter "SaaS") concluded by a business (hereinafter "Customer") with the Provider regarding the services presented by the Provider on its website. The subject matter of the contract is the provision of software (hereinafter "Software") in digital form via the Internet for a fee and limited in time to the contract duration, as well as the provision of storage space on the Provider's servers. The inclusion of the Customer's own terms and conditions is hereby objected to, unless otherwise agreed.
1.2 A business within the meaning of these GTC is a natural or legal person or a legal partnership who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity.
1.3 Businesses within the meaning of these GTC also include authorities or other institutions under public law if they act exclusively under private law when concluding the contract.
1.4 The Provider only concludes contracts with businesses within the meaning of § 14 BGB. Consumers within the meaning of § 13 BGB are excluded from concluding contracts. By registering, the Customer confirms that they are a business.
1.5 The Software may contain links to services of third-party providers. These GTC do not apply to such services that are not provided by the Provider but by a third-party provider. This also applies if the services are provided free of charge and/or if their use requires registration with the Provider. Only the GTC used by the third-party provider or the statutory provisions apply exclusively to these services in the relationship between the Customer and the third-party provider. In this respect, the Provider merely provides technical access to these services.
2.1 The Provider makes Software available to the Customer in digital form via the Internet for the duration of the agreed contract period. For this purpose, the Provider enables the Customer to access the Software, which remains on the Provider's server. The scope of functions and technical specifications of the Software are described in more detail in the service description on the Provider's website. The Provider only owes the provision of the Software with the functionalities defined in more detail in the service description. In particular, the Provider does not owe the establishment and maintenance of the data connection between the Customer's IT system and the Provider's server.
2.2 The Software is updated by the Provider at irregular intervals. Accordingly, the Customer only receives a usage right to the Software in its respective current version. However, the Customer has no claim to bringing about a specific state of the Software.
2.3 The Provider provides the Customer with limited storage space on its servers for the use of the Software. The scope of storage space is described in more detail in the service description on the Provider's website.
2.4 The Provider's services are offered subject to availability. 100 percent availability cannot be technically realized and therefore cannot be guaranteed to the Customer by the Provider. However, the Provider endeavors to keep the service available as constantly as possible. In particular, maintenance, security or capacity concerns as well as events beyond the Provider's control (disruptions of public communication networks, power failures, etc.) may lead to disruptions or temporary shutdown of the service.
2.5 The Provider takes measures for data backup in accordance with the state of the art. However, the Provider does not have a custody or safekeeping obligation. The Customer is responsible for sufficient data backup themselves.
2.6 The Provider provides the Customer with operating instructions in electronic form.
2.7 The Provider offers additional support services. The content and scope of support services are set out in the service description on the Provider's website.
2.8 The Software uses application programming interfaces (APIs) of third-party providers in the field of artificial intelligence (hereinafter "AI Services") to provide its functionalities. For this purpose, the Customer stores their own API keys (hereinafter "API Keys") in their user account. The Software uses these API Keys exclusively in the context of actions triggered by the Customer within the Software. Supported AI Services include in particular:
The Provider clarifies that all API requests made via the Customer's API Key are made exclusively in the context of the intended use of the Software by the Customer. The Provider does not use the Customer's API Key for its own purposes or for requests outside the Software.
2.9 The use of own API Keys by the Customer may result in costs at the respective AI service provider. The amount of these costs is determined by the terms of use and pricing models of the respective AI service provider. The Provider has no influence on these costs and assumes no liability for them. The Customer is solely responsible for informing themselves about the costs and terms of use of the respective AI service provider and for monitoring their API usage accordingly.
2.10 The LLMs are operated by third-party providers (hereinafter "LLM Providers") under their sole responsibility. The LLMs can be used via the Software to the extent that the respective LLM Provider makes the services available. The Provider has no influence whatsoever on the technical design and scope of the services provided by the LLM Providers and does not assume any warranty for a specific range of functions. The LLM Providers may change or discontinue the scope of their services at any time. The Provider is not liable to the Customer for service limitations caused by changes to the LLM Providers.
2.11 If a change in the scope of functions of one or more LLMs or a not merely temporary limited or missing availability of one or more LLMs means that, taking into account the scope and duration of the impairment, continuation of the contract is unreasonable for the Customer, the Customer may terminate the contract extraordinarily with a notice period of 30 days. In this case, the Customer only owes the recurring remuneration proportionately for the contract period up to the time of termination. This special right of termination does not exist if the Customer themselves is a contracting party of the respective LLM Provider and the possibility of use is eliminated or restricted due to a measure for which the Customer is responsible.
2.12 The Customer's data is stored on servers in the European Union, unless otherwise agreed. Insofar as data is transmitted to LLM Providers in the context of using the Software, this is done in compliance with the applicable data protection regulations. The Provider informs the Customer on its website about which LLM Providers host in which region and which data protection agreements exist with them.
2.13 The Software is offered in various service packages with respectively defined usage limits (e.g., number of user seats, storage space, scope of functions). The applicable limits are set out in the service description on the Provider's website. The Customer is obliged to comply with the limits applicable to their chosen package. If the limits are exceeded, the Provider is entitled to restrict access to the Software or to request the Customer to book a higher-value package.
3.1 The Provider reserves the right to change the services offered or to offer different services, unless this is unreasonable for the Customer.
3.2 The Provider also reserves the right to change the services offered or to offer different services,
3.3 Changes with only an insignificant influence on the Provider's services do not constitute service modifications within the meaning of this clause. This applies in particular to changes of a purely graphical nature and the mere change of the arrangement of functions.
4.1 The services described on the Provider's website do not constitute binding offers on the part of the Provider, but serve to submit a binding offer by the Customer.
4.2 The Customer can submit the offer via the online order form provided on the Provider's website. After entering their personal data, the Customer submits a legally binding contractual offer regarding the selected services by clicking the button that completes the order process.
4.3 The Provider may accept the Customer's offer within five days,
If several of the aforementioned alternatives are present, the contract is concluded at the time when one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the Customer sends the offer and ends with the expiration of the fifth day following the submission of the offer. If the Provider does not accept the Customer's offer within the aforementioned period, this is deemed a rejection of the offer with the consequence that the Customer is no longer bound by their declaration of intent.
4.4 If a payment method offered by PayPal is selected, payment processing takes place via the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter: "PayPal"), subject to PayPal's terms of use, which can be viewed at https://www.paypal.com
4.5 When submitting an offer via the Provider's online order form, the contract text is stored by the Provider after the conclusion of the contract and transmitted to the Customer in text form (e.g., email, fax or letter) after submission of their order. The Provider does not make the contract text available beyond this. If the Customer has set up a user account for the Provider's website before submitting their order, the order data will be archived on the Provider's website and can be accessed free of charge by the Customer via their password-protected user account by providing the corresponding login data.
4.6 Before binding submission of the order via the Provider's online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better detection of input errors can be the browser's magnification function, with the help of which the display on the screen is enlarged. The Customer can correct their entries as part of the electronic ordering process using the usual keyboard and mouse functions until they click the button that completes the order process.
4.7 The German language is available for the conclusion of the contract.
4.8 Order processing and contact usually take place by email and automated order processing. The Customer must ensure that the email address provided by them for order processing is correct, so that emails sent by the Provider can be received at this address. In particular, when using SPAM filters, the Customer must ensure that all emails sent by the Provider or by third parties commissioned by the Provider to process orders can be delivered.
The Provider is the owner of all usage rights required to provide the Software. Unless otherwise stated in the service description on the Provider's website, the Provider grants the Customer a non-exclusive, non-transferable right to use the Software for business purposes within the framework of these GTC, limited in time to the duration of the contract. Use of the Software beyond this is not permitted.
6.1 The Customer grants the Provider the non-exclusive right to use the content provided by the Customer (including content created using the Software), in particular communication content, prompts, texts, files and documents (collectively "Customer Content"), during the contract period to the extent necessary for the fulfillment of the contract, in particular to reproduce, edit and transmit to the AI service providers selected by the Customer. The Customer assures that they are able to dispose of these rights in favor of the Provider for the purpose of fulfilling the contract.
6.2 The Provider does not acquire any further rights to the Customer Content. The Customer remains the owner of all rights to the Customer Content provided and/or created by them. The Customer is solely responsible for the use of this content.
6.3 The Customer may only store or transmit Customer Content on the Software that (i) they are authorized to use to the extent necessary for the fulfillment of the contract, (ii) that do not violate the rights of third parties (in particular trademark rights, copyrights and other industrial property rights as well as personal rights) and (iii) that do not have illegal, glorifying violence, racist, discriminatory or pornographic content.
7.1 The Customer ensures that the hardware and software they use, including workstation computers, routers, data communication equipment, etc., meets the minimum technical requirements for using the currently offered software version.
7.2 The Customer is obliged to protect and keep the access data provided to them according to the state of the art from access by third parties. The Customer ensures that use only takes place to the contractually agreed extent. Unauthorized access by third parties must be reported to the Provider immediately.
7.3 The Customer may not store data on the storage space provided whose use violates applicable law, official requirements or orders, rights of third parties or agreements with third parties.
7.4 The content stored by the Customer on the storage space designated for them may be protected by data protection law. The Customer examines at their own responsibility whether the use of personal data by them complies with data protection requirements.
7.5 The Customer is responsible for regularly making appropriate data backups at their own responsibility.
7.6 The Customer is obliged to check their data and information for viruses or other harmful components before input and to use measures corresponding to the state of the art (e.g., virus protection programs) for this purpose.
7.7 The Customer ensures that programs, scripts or similar installed by them do not endanger the operation of the Provider's server or communication network or the security and integrity of other data stored on the Provider's servers.
7.8 If programs, scripts or similar installed by the Customer endanger or impair the operation of the Provider's server or communication network or the security and integrity of other data stored on the Provider's servers, the Provider may deactivate or uninstall these programs, scripts, etc. If the elimination of the danger or impairment requires it, the Provider is also entitled to interrupt the connection of the content stored on the server to the Internet. The Provider will inform the Customer of this measure immediately.
7.9 Additional requirements of the respective LLM Provider may apply to the use of individual LLMs, in particular Acceptable Use Policies and Codes of Conduct. The respective applicable terms of the LLM Providers can be viewed on the Provider's website. The Customer is responsible for compliance with these terms. The Provider points out that violations of the terms of an LLM Provider may lead to exclusion from or restriction of the use of the affected LLMs. The Provider is not liable for restrictions of its services resulting from a violation by the Customer of the terms of an LLM Provider.
7.10 The Customer is not permitted to use the Software or the AI services provided via the Software for systems that are classified as prohibited AI practices or as high-risk AI systems according to Art. 5 or Art. 6 of Regulation (EU) 2024/1689 ("AI Regulation"), unless the Customer proves that they fully comply with the requirements of the AI Regulation. The Customer indemnifies the Provider against all claims resulting from use of the Software in violation of the AI Regulation.
8.1 The Provider is generally not obliged to proactively check the content posted by Customers for their legality or compatibility with the rights of third parties or these GTC. Nevertheless, the Provider reserves the right to check content of the Customer for their legality on a case-by-case basis on its own initiative and to take measures in accordance with the following provisions in the event of violations identified.
8.2 Customers and affected third parties can report allegedly illegal content to the Provider using the contact information in the Provider's imprint (e.g., by email). The Provider is free to forward the content of a report to the Customer who posted the reported content. The identity of the reporting person will only be disclosed to the Customer if this is absolutely necessary.
8.3 In the case of reports and in the context of reviews carried out on the Provider's own initiative, human content control is generally carried out. In individual cases, automated technical review procedures may be used in addition.
8.4 If the illegality of content published by the Customer is determined following a report or in the course of a review on the Provider's own initiative, the Provider is entitled to take one or more of the following measures at its reasonable discretion, even without prior notice or contact:
8.5 When choosing the measure to be taken, the Provider will consider the principles of proportionality and weigh the interests of the affected Customer against its own interests in the unhindered, undisturbed and integral continuation of its business activities. Criteria that are taken into account when imposing a measure are:
8.6 If Customers frequently submit obviously unfounded reports or complaints, the Provider will suspend the processing of reports and complaints from these Customers for a reasonable period of time after prior warning.
8.7 The Provider may block the Customer's access to the Software in whole or to individual sub-areas temporarily or permanently at its own discretion if there are concrete indications that the Customer violates or has violated these GTC and/or applicable law, or if the Provider has another legitimate interest in the blocking. When deciding on a blocking, the legitimate interests of the Customer will be appropriately considered. In the event of blocking, the Customer will be notified by email. If the Customer repeatedly violates these GTC despite notice, the Provider reserves the right to permanently block access and to terminate the contractual relationship extraordinarily.
9.1 Unless otherwise stated in the Provider's service description, the prices stated are plus the applicable statutory value added tax.
9.2 The payment options and payment modalities are communicated to the Customer on the Provider's website.
9.3 The remuneration is billed by the Provider in advance for the agreed service period. Payment is made via the payment methods offered by the "Stripe" payment service. When selecting the payment method, payment processing takes place via the payment service provider Stripe Payments Europe Ltd., 1 Grand Canal Street Lower, Grand Canal Dock, Dublin, Ireland (hereinafter "Stripe"). The individual payment methods offered via Stripe are communicated to the Customer on the Provider's website. To process payments, Stripe may use other payment services for which special payment terms may apply, to which the Customer may be separately informed. The use of Stripe concerns exclusively the technical payment processing. The contractual information obligations to the Customer – in particular with regard to prices, scope of services, contract terms and billing details – remain entirely with the Provider. Further information about Stripe is available on the Internet at https://stripe.com
9.4 The Provider is entitled to adjust the prices for the services offered under the following conditions:
Price changes will be communicated to the Customer at least 30 days before they come into effect in text form (e.g., by email). The price change will come into effect at the earliest at the beginning of the next billing cycle. The Customer has the right to terminate the contract at the end of the current billing cycle if they do not agree with the price adjustment. The termination must be received by the Provider before the start of the new billing cycle for which the price adjustment applies for the first time.
9.5 The Software is licensed based on user seats (hereinafter "Seats"). The following regulations apply to changes in the number of Seats:
9.6 If the Customer is in default of payment, the Provider is entitled to demand default interest at the rate of 9 percentage points above the respective base rate according to § 288 para. 2 BGB. The assertion of a higher default damage remains reserved. In the event of a payment default of more than 14 days, the Provider is entitled to block the Customer's access to the Software until full payment is made, without this eliminating the Customer's payment obligation.
10.1 The contract is concluded for an indefinite period, but at least for the minimum term evident from the service description on the Provider's website. The contract can be terminated during the minimum term at any time at the end of the minimum term and after expiration of the minimum term at any time with a notice period of 14 days.
10.2 The right to extraordinary termination for good cause remains unaffected. Good cause exists if, taking into account all circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiration of a notice period.
10.3 Terminations can be made in writing, in text form (e.g., by email) or in electronic form via the termination device (termination button) provided by the Provider on its website.
10.4 Upon contract termination, the Customer loses access to their user account. Furthermore, upon contract termination, the Provider's obligation to store data posted by the Customer also expires.
If the Customer wishes to switch to another provider or to an ICT infrastructure in their own premises, the regulations in the Annex on Provider Change, which are attached to these GTC as an appendix, apply.
The provisions of statutory liability for defects apply, taking into account the following restrictions.
12.1 The Customer must notify the Provider immediately of any defects, malfunctions or damage that occur.
12.2 The warranty for only insignificant reductions in the suitability of the service is excluded.
12.3 Strict liability pursuant to § 536a para. 1 BGB for defects that already existed at the time of conclusion of the contract is excluded.
12.4 Termination by the Customer due to failure to grant contractual use is only permissible if the Provider has been given sufficient opportunity to remedy the defect and this has failed. Failure to remedy the defect is only to be assumed if it is impossible, if it is refused by the Provider or unreasonably delayed, if there are justified doubts about the prospects of success or if unreasonableness for the Customer exists for other reasons.
12.5 The Provider has no influence on the completeness and accuracy of the outputs generated by the LLMs (hereinafter "Outputs") and assumes no warranty for them. The Provider expressly points out that the Customer should not rely on the factual correctness of the Outputs without having independently verified them. Even Outputs that appear correct due to their level of detail or specificity may contain significant inaccuracies. Outputs may also not contain the most current or complete information. In particular, the Provider assumes no warranty for the availability of the LLMs; a specific availability of the LLMs is not guaranteed by the Provider.
13.1 The Provider is liable for all contractual, quasi-contractual and statutory claims, including tort claims, for damages and reimbursement of expenses as follows:
13.2 The Provider is liable without limitation on any legal ground
13.3 If the Provider negligently breaches a material contractual obligation, liability is limited to the contractually typical, foreseeable damage, unless unlimited liability exists according to the preceding clause. Material contractual obligations are obligations that the contract imposes on the Provider according to its content for the achievement of the purpose of the contract, the fulfillment of which enables the proper performance of the contract in the first place and on whose compliance the Customer may regularly rely. In these cases, liability is limited to the annual net remuneration that the Customer has paid to the Provider in the last twelve months before the event giving rise to the damage.
13.4 Otherwise, the Provider's liability is excluded.
13.5 The above liability provisions also apply with regard to the Provider's liability for its vicarious agents and legal representatives.
13.6 The limitation period for claims for damages by the Customer against the Provider is one year from the time when the Customer became aware of the circumstances giving rise to the claim or should have become aware of them without gross negligence, except in the cases of clause 13.2.
13.7 In the event of damage caused to the Customer by the behavior of an LLM Provider, the Provider's liability is limited to the assignment of the Provider's claims against the respective LLM Provider to the Customer, insofar as the contract and terms of use of the respective LLM Provider permit such an assignment. This does not apply if the Customer themselves is a contracting party of the respective LLM Provider; in this case, any liability of the Provider for such damage is excluded.
The Customer indemnifies the Provider against all claims that other customers or other third parties assert against the Provider for violation of their rights due to content posted by the Customer or due to their other use. The Customer also assumes the necessary costs of legal defense including all court and attorney fees at the statutory rate. This does not apply if the legal violation is not the responsibility of the Customer. The Customer is obliged to immediately, truthfully and completely provide the Provider with all information required for examining the claims and defense in the event of a claim by third parties.
15.1 Both parties undertake to maintain confidentiality about all confidential information of which they become aware in connection with this contract and its implementation and not to disclose it to third parties. Confidential information is that which is marked as confidential or whose confidentiality arises from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form.
15.2 The confidentiality obligation does not apply insofar as the receiving party proves that the confidential information (i) was already publicly known at the time of communication or subsequently became publicly known without fault on the part of the receiving party, (ii) was already known to the receiving party before communication by the other party, (iii) was communicated to the receiving party by an authorized third party without a confidentiality obligation, or (iv) the receiving party is legally obliged to disclose it or due to a final or legally binding administrative or court decision.
15.3 The confidentiality obligation survives the end of the contractual relationship by two years.
16.1 The Provider reserves the right to change these GTC at any time, provided the Customer agrees to the change.
16.2 The Provider also reserves the right to change these GTC without the Customer's consent,
16.3 The Provider will inform the Customer about significant changes to these GTC in good time and in an appropriate form. Significant are those changes that would shift the contractual relationship considerably to the disadvantage of the Customer or would be equivalent to the conclusion of a completely new contract. These include, for example, regulations on the type and scope of the service or on contract duration and termination modalities.
16.4 Changes according to clause 16.2 will be communicated to the Customer in advance by email. If the Customer does not object to their validity within four weeks of receipt of the notification, the changes are deemed accepted with effect for the future. If the Customer objects to the changes, the Provider is entitled to terminate the contractual relationship extraordinarily with a period of two weeks. The Provider will point out the effect of silence and the right of termination in the change notification. Exempted from the right to change is any change of the subject matter of the contract and the main performance obligations that would lead to a change of the contractual structure as a whole.
16.5 The Customer's right of termination remains unaffected by this.
17.1 The law of the Federal Republic of Germany applies to all legal relationships between the parties, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
17.2 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the Provider's place of business. However, the Provider is entitled to sue the Customer at their general place of jurisdiction.
The Provider is neither obliged nor willing to participate in a dispute resolution procedure before an arbitration board.
19.1 Insofar as the Provider processes personal data for the Customer in order to provide the contractual services, the Provider is a data processor within the meaning of Art. 28 of the General Data Protection Regulation (GDPR). In this case, the parties conclude a separate data processing agreement (DPA) that complies with the requirements of Art. 28 GDPR. The conclusion of the DPA takes place at the latest at the beginning of data processing.
19.2 The Provider processes personal data of the Customer exclusively within the framework of contractual service provision and according to the instructions of the Customer. The Provider does not use the personal data of the Customer for its own purposes, in particular not for training AI models.
19.3 More detailed information on data protection can be found in the Provider's privacy policy on its website.
20.1 The Provider is not liable for non-performance or delayed performance of its contractual obligations insofar as the non-performance or delay is based on circumstances beyond the Provider's reasonable sphere of influence (force majeure). These include in particular natural disasters, epidemics, pandemics, warlike conflicts, acts of terrorism, strikes, lockdown, official orders, failure of telecommunications networks or gateways of other operators, disruptions in the area of line providers as well as other technical disruptions, even if these occur with subcontractors, sub-suppliers or their subcontractors.
20.2 For the duration and to the extent of the force majeure, the Provider's affected performance obligations are suspended. The Provider will inform the Customer immediately about the occurrence and the expected duration of the disruption. If the state of force majeure lasts longer than three months, both parties are entitled to terminate the contract extraordinarily.
The Customer may only set off against claims of the Provider with undisputed or legally established counterclaims. The Customer may only exercise a right of retention if their counterclaim is based on the same contractual relationship.
22.1 Should one or more provisions of these GTC be or become invalid, the validity of the remaining provisions is not affected thereby. An effective provision that comes as close as possible to the economic purpose of the ineffective provision shall take the place of the ineffective provision. The same applies to any regulatory gaps.
22.2 Only the German version of this contract is binding. The English translation is for informational purposes only.
The following provisions apply in the event that the Customer wishes to switch to another provider or to an ICT infrastructure in their own premises.
2.1 "Data processing service" within the meaning of these GTC is a digital service provided to the Customer that enables comprehensive and on-demand network access to a shared pool of configurable, scalable and elastic computing resources of a centralized, distributed or highly distributed nature that can be rapidly provisioned and released with minimal administrative effort or minimal interaction with the Provider.
2.2 "Digital assets" within the meaning of these GTC are elements in digital form – including applications – for which the Customer has a right of use, regardless of the contractual relationship with the data processing service they wish to switch from.
2.3 "ICT infrastructure in own premises" within the meaning of these GTC is ICT infrastructure and computing resources that are owned by the Customer or rented or leased by the Customer and that are located in the Customer's data center and operated by them or a third party.
2.4 "Switch" within the meaning of these GTC is a process involving the Provider, the Customer and, if applicable, a receiving provider of data processing services, in which the Customer switches from using the Provider's data processing service to using another data processing service of the same type of service or another service offered by another provider of data processing services or offered by an ICT infrastructure in own premises, including by extracting, converting and uploading data.
2.5 "Exportable data" within the meaning of these GTC are input and output data including metadata that are directly or indirectly generated by the Customer's use of the data processing service or jointly, with the exception of the Provider's or third parties' assets or data protected by intellectual property rights or constituting a trade secret.
3.1 Before ordering the data processing services, the Provider provides the Customer with clear information on the following points:
3.2 The Provider's online register with data structures and formats, relevant standards and open interoperability specifications for data is available on the Provider's website.
4.1 The parties agree on a switch and exit plan (hereinafter "Plan") that contains in particular the following:
4.2 At the Customer's request, the Provider must provide information to the personnel designated by the Customer (or other third parties authorized by the Customer) to explain the relevant procedures.
4.3 At the Customer's request, the Provider undertakes to either organize a test or support the Customer in their tests to verify whether the Plan works in practice for exportable data and digital assets. If problems arise during the test, the parties will analyze the causes in good faith and work towards solutions.
4.4 The Provider and the Customer undertake to update the Plan as needed and to review at least at the Customer's request whether changes are necessary.
5.1 The Customer must send the Provider a switch notification with a notice period of 2 months, indicating that they are initiating the switch. If the Customer only wishes to transfer certain services, data or digital assets, they must indicate this in the notification.
5.2 In the switch notification, the Customer must state whether they intend:
5.3 The Provider will confirm receipt of the switch notification to the Customer no later than within 3 working days by the same means of communication used by the Customer.
6.1 The transition period is 30 calendar days and begins upon expiration of the notice period for initiating the switch process.
6.2 If the Provider cannot comply with the agreed transition period for technical reasons, it undertakes to:
The Customer must confirm receipt of this extension notification within 3 working days in writing or in text form.
6.3 The Customer may extend the transition period once by a period they consider more appropriate for their purposes, but not longer than 3 months. For complex migrations, the parties may mutually agree on a longer period, but no more than 12 months. The Customer must inform the Provider in writing or in text form of their intention by the end of the original transition period and indicate the alternative transition period. The Provider will confirm receipt of such an extension notification within 3 working days in writing or in text form.
The Provider undertakes to reasonably support the Customer and third parties commissioned by the Customer from the beginning and throughout the duration of the switch process so that the Customer can switch within the agreed transition period. For this purpose, the Provider must in particular:
8.1 The Customer undertakes to take all reasonable measures to achieve an effective switch. The Customer is responsible for importing and implementing data and digital assets into their own systems or into the target provider's systems.
8.2 The Customer or third parties commissioned by them, including the target provider, undertake to respect the intellectual property rights and trade secrets in the materials provided by the Provider in the switch process. The Customer also undertakes to grant third parties or the target provider access to these materials and, if necessary, to grant sublicenses for their use only to the extent necessary for carrying out the switch process until the end of the agreed transition period, including the alternative transition period, while respecting the confidentiality obligations and the intellectual property rights granted by the Provider.
9.1 The Customer may retrieve or delete their data during the agreed period for data retrieval. The period for data retrieval is 30 calendar days and begins after the expiration of the agreed transition period. The parties may agree on a longer period if this is appropriate taking into account the mutual interests.
9.2 After expiration of the agreed period for retrieval and upon successful completion of the switch process, the Provider undertakes to delete all exportable data and digital assets generated by the Customer or directly related to the Customer and to confirm to the Customer that it has done so. This does not apply to exportable data that the Provider must retain according to mandatory EU law or the law of EU member states, provided the Provider informs the Customer which exportable data it retains for how long and for what reasons.
10.1 The Provider provides the services arising in the context of the switch process against remuneration on an effort basis. Billing is based on the actual time spent at the Provider's respectively valid hourly rates. The current hourly rates will be communicated to the Customer upon request and before the start of the switch process.
10.2 Before the start of the switch process, the Provider prepares an effort estimate based on the agreed switch and exit plan and communicates it to the Customer in text form. The Customer is not bound by the effort estimate; it serves exclusively for orientation. If it becomes apparent during the switch process that the actual effort exceeds the estimate by more than 20 percent, the Provider will inform the Customer immediately.
10.3 Billing is carried out monthly in arrears on the basis of a performance record that documents the services rendered and the respective time spent. The invoice amount is due for payment within 14 days of invoicing.
10.4 Exit fees are not charged. The remuneration according to the preceding clauses covers all costs arising in connection with the switch process.
11.1 As soon as the Customer informs the Provider that the switch process has been successfully completed, the Provider will inform the Customer immediately about the termination of the contract. If the Customer does not inform the Provider of the successful switch or the lack thereof, although the Provider has reasonable grounds to assume that the switch has been successfully completed by the Customer, the Provider may request confirmation from the Customer that the switch has been successfully completed. If the Customer does not confirm the successful switch within 30 working days of this request, it is assumed that the switch was not successful, and the contract is not terminated but continued under the existing conditions.
11.2 If the Customer does not wish to switch but wishes to delete their exportable data and digital assets, the Provider undertakes to inform the Customer about the termination of the contract at the end of the agreed notice period.
12.1 The contract is deemed terminated between the parties when one of the following events has fully occurred:
12.2 If the contract or the Provider's GTC contains/contain clauses on termination due to statutory provisions or related cases, such as the following:
the agreement together with the agreed services and functions will not be terminated or expire before one of the events according to the preceding clause has clearly occurred. This has no effect on other rights or remedies available to one party against the other party.
The Customer may agree with the Provider on success criteria for the switch as well as milestones for the switch and report the status of their achievement during the switch process. In any case, the Customer must inform the Provider about the successful switch.
12.3 If the switch process cannot be successfully completed, the parties must cooperate in good faith to improve the switch process and achieve successful completion, enable timely data transfer and maintain continuity of services. In doing so, the Provider must support the Customer at their request in determining the reasons for the unsuccessful switch and inform them how the identified obstacles can be eliminated or circumvented.
12.4 The switch process is deemed successfully completed when:
12.5 If at the end of the transition period the Customer decides not to delete all of their exportable data and digital assets at the end of the agreed data retrieval period and wishes to ensure that they remain available for a certain additional time with limited functionality, or if the Customer and the Provider have agreed to maintain the contract without the provision of certain services, unless the Customer expressly orders otherwise, this can only take place after:
If the alternative data retrieval period and other conditions for the service during this time are proposed by the Provider, the contract may not be terminated or expire before the Customer has accepted the deletion at their own discretion and clearly confirmed that the contract is terminated.
12.6 The right of the contracting parties to terminate the contractual relationship with an indefinite contract by ordinary termination remains unaffected, provided the reason for termination is neither a provider change nor – on the part of the Customer – an intention to delete data.
12.7 If the contract was expressly concluded for a specific duration and the expiration date is reached before the switch process is completed, and the Customer has not requested the deletion of their exportable data and digital assets,
