Last update 01/2022
General Terms and Conditions for Services provided by antwerpes ag, antwerpes healthy media gmbh and antwerpes health share gmbh
Preamble
(1) antwerpes ag (HRB 20862), antwerpes healthy media gmbh (HRB 107577) and antwerpes health share gmbh (HRB 238593), Vogelsanger Straße 66, D-50823 Cologne/Germany, (hereinafter "antwerpes") are primarily engaged in the field of new media with the conception and realisation of online offerings as well as intra- and extranet applications. These services may include, among other things, content conception and technical design, screen design, programming, hosting and application service providing, the provision of second-level domains, the support and implementation of administration tools, ecommerce solutions and other complex data bank-supported applications as well as customer support.
(2) The General Terms and Conditions (hereinafter referred to as "GTC") shall govern the legal relationship between antwerpes and the respective contractual partner (hereinafter referred to as "customer") in addition to individual contractual provisions.
§ 1 Offers
Offers by antwerpes are submitted without engagement. antwerpes expressly reserves the right to commit errors.
§ 2 Scope of services
(1) The concrete scope of services results from the respective individual contract with its annexes including any special terms and conditions stipulated in the respective individual contract as well as, if applicable, the specification documents and these GTC. The overall service to be provided by antwerpes is hereinafter also referred to as the "product".
(2) The commencement of services shall be determined by the individual contractual provisions.
(3) antwerpes is not responsible for the success of any advertising campaigns.
§ 3 Project management
(1) Based on the needs of the customer, antwerpes shall prepare a service description which represents the final content of the scope of services to be provided by antwerpes. The customer is obliged to object to the content of this service description without delay; if the customer fails to do so, the content of the service description is deemed to be approved.
(2) The parties shall each appoint a manager to be responsible and act as a contact person for the project (hereinafter "project manager"). The project managers shall coordinate the planning and implementation of the project in terms of content and schedule in regular project manager meetings. antwerpes shall prepare minutes of the outcomes of these meetings. The customer is obliged to object to the content of minutes within three (3) working days of receipt; if the customer fails to do so, the content of the minutes is deemed to be approved.
(3) A detailed schedule shall be drawn up at the start of the project. It forms the basis for managing the project deadlines and is to be updated on an ongoing basis. The schedule should also include the dates for the project manager meetings.
(4) The execution of the work and the fine-tuning of the content shall be carried out in close cooperation with the customer. The final decision on the specific way in which the services to be provided are to be carried out lies with antwerpes. antwerpes assumes no responsibility for the customer actually achieving the objectives it pursues with the services and results provided by antwerpes.
§ 4 Obligation to cooperate
(1) The customer is obliged to provide all forms of support to the employees assigned by antwerpes to perform the services while they are working at the customer's premises.
(2) The customer's project manager is responsible for the provision, accuracy, and completeness of all information, working documents and working materials required for the performance of the agreed services and for setting up contact with the customer’s specialist departments. The customer’s project manager is furthermore responsible for ensuring that the customer makes all necessary decisions in a timely manner.
(3) The customer shall ensure that all necessary cooperation required of the customer and its vicarious agents is provided in due time to the required extent and free of charge for antwerpes.
(4) If the customer fails to comply with its obligation to cooperate or does not comply with it sufficiently despite having been granted a reasonable grace period, the customer shall bear the resulting consequences, such as additional expenses or delays in antwerpes' services. In this case, the customer is also obliged to compensate antwerpes for the resulting damage. For the duration of the delay antwerpes shall be released from its obligations under the respective individual contract and these GTC.
§ 5 Remuneration
(1) The remuneration to be paid is based on the respective individual contract in connection with the respective price list valid at the time.
(2) Estimates of the scope of services likely to be required given in the individual contract are non- binding. They are based on an assessment carried out to the best of our knowledge of the scope of the services. If it becomes clear to antwerpes in the course of the performance of services that the estimates of quantities will be exceeded, antwerpes shall notify the customer thereof without undue delay. Until the customer's written consent has been submitted, antwerpes will not exceed the service and quantity estimates on which the estimated price is based.
(3) All prices are exclusive of value added tax at the statutory rate applicable at the time of performance.
(4) Travel expenses including accommodation and other expenses shall be invoiced to the customer in accordance with the "Services and Prices" list valid at the time of conclusion of the contract.
§ 6 Settlement and due date
(1) Subject to a provision in the individual contract to the contrary, antwerpes shall invoice the customer for the services rendered monthly in arrears.
(2) In the case of unpaid debts, antwerpes shall be entitled to charge default interest of eight (8) per cent above the base interest rate, provided that no consumers are involved in the legal transaction. antwerpes expressly reserves the right to assert further claims as well as make higher penalty interest charges.
(3) Cancellation of an individual contract already concluded entitles antwerpes to charge 40% of the contract value (fee without external services) if the performance of services has not yet begun or 40% of the residual order value (fee value without external services) if the performance of services has already begun.
(4) In all other respects, the terms of payment set out in the "Services and Prices" list valid at the time of conclusion of the contract shall apply.
§ 7 General warranty
(1) A warranty for the quality of an item or a work shall only be deemed to have been given if antwerpes expressly states in writing that it has been given.
(2) Unless otherwise agreed above or in an individual contract, antwerpes warrants that its services are suitable for their contractually specified use, which is based exclusively on the service description valid at the time of performance and made available to the customer.
(3) In the event of significant deviations of the services rendered by antwerpes from this service description, antwerpes shall be obliged to remedy such deviations, provided this does not involve unreasonable effort. A significant deviation shall be deemed to exist if the use of the services provided by antwerpes for the purpose intended in the service description is not possible in an economically reasonable manner or is only possible with unreasonable restrictions. Only if antwerpes does not succeed within a reasonable period of time in eliminating the significant deviations by means of rectification or circumventing them in such a way that the customer is enabled to use the services rendered by antwerpes in accordance with the contract, may the customer reduce the remuneration payable under the individual contract for this service to the extent that the reduction in remuneration corresponds to the difference between the value the substandard service and the value the faultless service would have had at the time the service was rendered.
(4) Instead of and under the conditions of the reduction of the remuneration, the customer may terminate the individual contract with respect to the respective service without notice. In the event of such termination, the customer shall remunerate the cost of the use of the service up to that point in time. The obligation to remedy deviations as well as the right to reduce the remuneration and to terminate the contract shall end six months after acceptance of the service, unless a shorter period is prescribed by law, subject to an individual contractual provision to the contrary.
(5) Notwithstanding the aforementioned rights and obligations of the customer, antwerpes has the right at any time, even after expiry of the warranty and other limitation periods, to carry out subsequent improvements on its own initiative. If the customer refuses to cooperate for this purpose, it shall lose all other rights to contract termination and reduction of remuneration as well as claims for performance and damages that may still exist against antwerpes.
§ 8 General liability
(1) antwerpes shall be liable for personal injury as well as for damage caused by intent or gross negligence on the part of legal representatives or executive employees of antwerpes or by serious organisational fault or by the non-provision of guaranteed qualities. Furthermore, antwerpes shall only be liable, irrespective of the legal grounds, for damage caused by culpable breach of a material contractual obligation in a manner jeopardising the achievement of the purpose of the contract by legal representatives or executive employees of antwerpes.
(2) The liability of antwerpes shall be limited to the typical damage caused by the respective service, the possible occurrence of which antwerpes should have been aware of at the time of the conclusion of the contract based on the circumstances known to it at that time. antwerpes shall not be liable for lack of economic success, lost profit, savings not made, indirect damage, consequential damage and claims of third parties.
(3) antwerpes shall only be liable for the loss of data and its recovery if such loss could not have been avoided by reasonable data backup measures on the part of the customer and insofar as the data can be reconstructed with reasonable effort from data material held in machine-readable form.
(4) Furthermore, antwerpes shall assume no liability for the customer not violating relevant legal provisions within the scope of use of the services, such as the German Data Protection Regulation (GDPR), the German Act against Unfair Competition (UWG), the German Telemedia Act (TMG), the German Trademark Act (MarkenG) or other relevant provisions. antwerpes offers to have the product reviewed by lawyers experienced in these fields of law at the expense of the customer. The details of such a review shall be agreed separately.
(5) Transmission channels on the Internet are not secured against unauthorised access by third parties. This means that it is possible for Internet users with sufficient technical experience to access, read and edit third-party data. The customer bears the risks associated with this. antwerpes accepts no liability for the consequences of any access by third parties.
(6) antwerpes shall assume no liability for events and circumstances outside its contractually stipulated area of responsibility; this applies in particular to the services of Deutsche Telekom and other service providers, to the functioning of routers outside antwerpes' own network and to the condition of the fibre optic network.
(7) Furthermore, antwerpes shall assume no liability for consequences resulting from the inclusion in its services of content provided by the customer. In particular, antwerpes shall not be liable for the consequences of a lack of interoperability of this content provided by the customer.
(8) antwerpes shall assume no liability for the protectability or registrability of the delivered product under patent, design, copyright and trademark law.
(9) The aforementioned limitations of liability shall also apply mutatis mutandis in favour of the employees and agents of antwerpes. Liability for damage caused by such employees and agents shall be limited, even in the case of intent and negligence, to the typical damage caused by the respective services, the possible occurrence of which antwerpes should have been aware of at the time the contract was concluded on the basis of the circumstances known to it at that time. antwerpes shall not be liable for damage caused by negligent breaches of a non-essential contractual obligation by an employee or agent of antwerpes.
§ 9 Delays
If antwerpes fails to meet the deadline for the fulfilment of a major service obligation, the customer shall be entitled, after a grace period of one week, to claim a contractual penalty of 0.5% of the net remuneration attributable to the provision of this service in accordance with § 5 for each further full week in which antwerpes fails to provide the service, but no more than 10% of this net remuneration. The assertion of further claims for compensation due to damage caused by delay is not permitted.
§ 10 Limitation periods
Claims of antwerpes against the customer arising from a breach of the rights of use granted to the customer shall lapse six years after their being granted. The limitation periods for all other claims of antwerpes against the customer arising from the respective individual contract in connection with its annexes and these GTC shall be governed by the statutory provisions.
§ 11 Rights of use
(1) In principle, antwerpes shall grant the customer the unlimited and indefinite use of the work results for the territories of Germany, Austria and Switzerland, irrespective of the duration and scope of the cooperation, provided that the service has been paid for in full by the customer in accordance with the respective individual order. This explicitly includes the use in all electronic media, e.g. online use in databases or on the Internet. Any transfer of the rights of use to third parties shall require the written consent of antwerpes. All transferable rights of use under copyright law for the publication, duplication, distribution, exhibition, and other exploitation of the services covered by these GTC shall pass to the customer at the time of payment without any restriction in terms of time, scope, purpose of use and medium, including the right to lecture, perform or present, the right to broadcast and the right to reproduce radio broadcasts.
(2) The rights to frameworks developed by antwerpes itself shall remain with antwerpes. antwerpes shall grant the customer a simple right of use for such frameworks, which shall cease to exist upon termination of the respective individual contract.
(3) There shall be no transfer of rights of use for services within the scope of pitches and concept or proposal presentations, regardless of whether a fee has been agreed for the presentation or not. Insofar as the agency's service includes the creation of an overall concept, such as a campaign, the transfer of rights shall take place for the individual measures implemented. The transfer of rights for the overall concept shall be agreed separately, if applicable.
(4) antwerpes shall provide digital services in such a form that the work fulfils the specified requirements in the defined environment. antwerpes shall be entitled, at its discretion, to use the program code in open or closed, protected or unprotected, editable or non-editable form. antwerpes shall in no case be obliged to disclose or hand over the source code.
§ 12 Subcontractors
antwerpes is entitled to commission subcontractors with the performance of the services.
§ 13 Transferability
antwerpes is entitled to transfer all rights and obligations under this contract to a third party at any time and does not require the consent of the customer to do so. antwerpes and the third party are obliged to jointly notify the customer of such a transfer in writing.
§ 14 Data protection, confidentiality, references
(1) The parties shall keep confidential any information or documents of the other party which are marked as business or trade secrets, or which are clearly recognisable as such due to other circumstances. The same applies to personal data covered by the provisions of the General Data Protection Regulation (DS-GVO). The parties shall process or use personal data of the respective other party only for contractually agreed purposes. In particular, they shall secure personal data against unauthorised access and shall neither record nor store nor reproduce such data nor use or exploit it in any form or pass it on to third parties without the consent of the other party. The parties shall instruct their employees accordingly and oblige them to maintain confidentiality in the same way.
(2) antwerpes is entitled to publicly name the customer as a reference.
(3) antwerpes is entitled to use the product manufactured for the customer as a reference.
§ 15 Force majeure
(1) In the event of force majeure, in particular official decrees, actions by Deutsche Telekom and its affiliated companies, strikes, lockouts, plagues (including epidemics and pandemics) and similar events outside the sphere of influence of the affected party, the latter shall be released from its performance obligations under the individual contract, its annexes and these GTC for the duration and to the extent of the event. The affected party shall immediately inform the other party of the nature and expected duration of the event.
§ 16 Miscellaneous
(1) In conjunction with the respective individual contract and its annexes, these GTC, including any special terms and conditions included in the respective individual contract and, if applicable, the specifications, conclusively regulate the relationships between the parties. The customer's general terms and conditions shall not become part of the contract.
(2) Verbal collateral agreements have not been made. Amendments or supplements to the individual contract, its annexes and these GTC shall be made in writing for the purposes of proof. This shall also apply to any amendment of this provision.
(3) German law shall apply without regard to the conflict of laws provisions of private international law and the UN Convention on Contracts for the International Sale of Goods. Place of performance and place of jurisdiction is Cologne/Germany.
(4) If individual provisions of the individual contract, its annexes and these GTC are, in whole or in part, invalid or unenforceable under law, or become invalid or unenforceable under law at a later date, this shall not affect the validity of the individual contract, its annexes and these GTC in other respects. In this case, the parties undertake to replace the invalid provision with a valid provision which, as far as legally possible, comes as close as possible to the economic purpose of the invalid provision, taking into account the interests of the parties as expressed in the individual contract, its annexes and these GTC. The same shall apply if there is an omission in the individual contract, its annexes or these GTC not foreseen by the parties.
Special Terms and Conditions for Application Service Providing of antwerpes ag, antwerpes healthy media gmbh and antwerpes health share gmbh
Preamble
These Special Terms and Conditions shall govern the legal relationship between antwerpes and the respective customer in addition to individual contractual provisions and the General Terms and Conditions for services of antwerpes ("GTC Digital & Classic Communication"). The provisions of these Special Terms and Conditions shall take precedence over the General Terms and Conditions in the event of conflicting provisions.
§ 1 Offers
Offers by antwerpes are submitted without engagement. antwerpes expressly reserves the right to commit errors.
§ 2 Scope of services
(1) antwerpes grants the customer access to applications and data specified in individual contracts which are made available on servers belonging to antwerpes and third parties for use by the customer ("applications provided"). The nature, scope, and duration of the associated rights of use are based on the individual contract as well as the terms of use of the creators and licence holders of these applications.
(2) If no specific duration of the contract is stipulated in the individual contract, the individual contract shall be deemed to have been concluded for an indefinite period of time and may be terminated with three (3) months' notice at the end of each calendar half-year by written declaration to the respective other party. The right to terminate for good cause remains unaffected.
§ 3 Availability, Access, Firewalls
(1) antwerpes shall on an annual average maintain 99% availability of the applications provided on antwerpes’ servers. antwerpes’ servers are connected to the Internet via a 100 MBit line with a redundancy of 2 MBit. The further technical details are based on the respective individual contract.
(2) The applications provided are protected against unauthorised access by third parties by means of devices in line with general technical progress and are secured by backup copies. Nevertheless, it is accepted that an intrusion into the system by unauthorised persons ("hackers") cannot be completely ruled out.
(3) Access denials due to a hacker intrusion, computer virus or due to comparable events (e.g. denial of service attack) shall not be taken into account for the calculation of the annual availability and access speed pursuant to section 1.
§ 4 Password
(1) antwerpes shall provide the customer with a password for access to the applications provided. The customer is obliged to protect this password from unauthorised access by third parties. The customer shall bear the sole responsibility for the consequences of unauthorised use.
(2) The customer shall indemnify antwerpes against all costs and claims of third parties incurred by antwerpes as a result of a breach of the obligations specified in section 1.
(3) If applications provided are accessed using the password, these access times shall be attributed to the customers, unless the customer proves that
(i) the access is that of an unauthorised third party and that
(ii) the third party has not gained knowledge of the password from the sphere of the customer.
§ 5 Liability
(1) Subject to the following provisions, antwerpes shall be liable for the correctness, completeness, functionality as well as freedom from errors and viruses of the applications made available on servers managed by antwerpes within the scope of the general liability pursuant to paragraph 8 of the GTC Digital & Classic Communication. For applications made available on servers not managed by antwerpes, antwerpes shall in principle not assume any liability for the features mentioned in sentence 1.
(2) antwerpes shall not assume any liability for direct or indirect damage and for consequential damage, including loss of profit, incurred by the customer due to unauthorised access by third parties to the applications and data provided and/or to the customer's data.
§ 6 Customer's own applications and data, liability of the customer
(1) Insofar as the applications provided allow the customer to store its own applications and/or data on servers belonging to antwerpes or third parties, the customer itself shall be responsible for the consequences resulting from the use of these applications and/or data.
(2) The customer shall be liable for ensuring that its applications and/or data
- do not violate applicable law and do not have immoral content,
- do not impair or cannot impair the regular operating behaviour or the security of the server and
- do not infringe claims and/or rights of third parties.
(3) antwerpes shall be entitled to block and, if necessary, delete applications and/or data which violate the provisions of section 2. The customer shall indemnify antwerpes against all costs and claims in connection with a deletion and/or blocking. A deletion and/or blocking does not release the customer from its obligations towards antwerpes.
(4) antwerpes does not check the customer's own applications and data. Any consequences resulting from alleged or actual claims by third parties or lack of interoperability shall be borne exclusively by the customer.
(5) § 3 section 2 shall apply mutatis mutandis with regard to data of the customer that is stored on servers belonging to antwerpes and third parties within the scope of the applications and data provided. The customer is obliged to regularly back up its own data in order to be able to replicate it in the event of a loss.
Special Terms and Conditions for Hosting Services of antwerpes ag, antwerpes healthy media gmbh and antwerpes health share gmbh
Preamble
These Special Terms and Conditions shall govern the legal relationship between antwerpes and the respective customer in addition to individual contractual provisions and the General Terms and Conditions for services of antwerpes ("GTC Digital & Classic Communication"). The provisions of these Special Terms and Conditions shall take precedence over the General Terms and Conditions in the event of conflicting provisions.
§ 1 Offers
Offers by antwerpes are submitted without engagement. antwerpes expressly reserves the right to commit errors.
§ 2 Hosting services
(1) Hosting by antwerpes comprises the monitoring as specified in the individual contract of the system environment defined in more detail in the individual contract and the operation of the software and hardware required for this. In addition, antwerpes shall usually also provide Internet access for the software in question. The scope of services is set out in detail in the individual contract.
(2) The services listed in the individual contract exclusively refer to those servers belonging to antwerpes on which the customer’s applications operate. Unless otherwise agreed, the following individual provisions shall apply to these servers.
(3) antwerpes shall provide the hosting services to the customer for the duration specified in the individual contract. If no specific duration of the contract is stipulated in the individual contract, the individual contract shall be deemed to have been concluded for an indefinite period of time and may be terminated with three (3) months' notice at the end of each calendar half-year by written declaration to the respective other party. The right to terminate for good cause remains unaffected.
§ 3 Server colocation services
(1) The server colocation provided by antwerpes comprises the storage of the customer's own servers as specified in the individual contract as well as the provision of the necessary power and dial-up connections. The scope of services is set out in detail in the individual contract.
(2) § 2 section 3 shall apply mutatis mutandis to server colocation services.
§ 4 Server monitoring
(1) antwerpes shall ensure by means of suitable technical measures that the server operations are continuously monitored. In addition to the technical monitoring, a visual inspection of the servers by antwerpes shall take place at regular intervals. The technical limit for antwerpes' operational responsibility is the accessibility of the customer's defined http interface via the Internet. The applications running on the servers are not included in the operational responsibility of antwerpes subject to an individual stipulation to the contrary.
(2) antwerpes is free to choose the means of server monitoring. Upon request, antwerpes will inform the customer about the specific measures taken and the security systems installed. Reports received from these security systems will be promptly checked by antwerpes for their relevance to the customer and, if necessary, forwarded to the project manager (§ 3 of the GTC Digital & Classic Communication) at the e-mail address specified by the latter.
§ 5 Access authorisation to the server, password
(1) Insofar as agreed in individual contracts, the customer shall be granted solely for use in important cases the possibility of system administration access (root) to the servers on which the customer's applications are installed.
(2) antwerpes shall provide the customer with a password for access to the system administration. The customer is obliged to protect this password from unauthorised access by third parties. The customer shall bear the sole responsibility for the consequences of unauthorised use. The customer shall indemnify antwerpes against all costs and claims of third parties incurred by antwerpes as a result of a breach of these obligations.
(3) If applications and data being managed by antwerpes are accessed using the password, these access times shall be attributed to the customers, unless the customer proves that
(i) the access is that of an unauthorised third party and that
(ii) the third party has not gained knowledge of the password from the sphere of the customer.
(4) Access to the system administration using the password is generally recorded by antwerpes. Upon request, the customer will receive a copy of this access log.
(5) The customer has no right to physical access to antwerpes' servers. The customer has the right to physical access to its own servers during normal business hours after giving prior notice.
§ 6 Backup copy of server data
Insofar as agreed in individual contracts, the data located on the servers’ hard drives shall be backed up by antwerpes at the agreed intervals and a copy of this backup shall be handed over to the customer.
§ 7 Internet connection
(1) antwerpes shall use the Internet connection of the servers managed by antwerpes pursuant to § 2 and the servers stored by antwerpes pursuant to § 3. The internet connection shall be provided via a 100 MBit line with a redundancy of 2 MBit. The further performance parameters for this connection shall be specified in individual contracts.
(2) The Internet consists of numerous sub-networks, which are in turn interconnected. Therefore, antwerpes shall conclude agreements on direct connections with various providers of connections (backbones) between these sub-networks. antwerpes is free in its choice of the backbone contract partners.
§ 8 Availability, Access, Firewalls
(1) antwerpes shall on an annual average maintain 99% server availability of the antwerpes-owned servers. antwerpes does not assume any liability for the availability of the customer’s own servers.
(2) The servers managed in accordance with § 2 and the servers stored in accordance with § 3 and the applications and data installed on them are protected against unauthorised electronic access by third parties by means of devices in line with general technical progress and are secured by backup copies. Nevertheless, it is accepted that an intrusion into the system by unauthorised persons ("hackers") cannot be completely ruled out.
(3) Access denials due to a hacker intrusion, computer virus or due to comparable events (e.g. denial of service attack) shall not be taken into account for the calculation of the annual availability and access speed pursuant to section 1.
§ 9 Liability
(1) antwerpes shall not assume any liability for the correctness, completeness, functionality as well as freedom from errors and viruses of the servers stored by antwerpes pursuant to § 3 and the applications and data installed on them.
(2) antwerpes shall not assume any liability for direct or indirect damage and for consequential damage, including loss of profit, incurred by the customer due to defective software, viruses, denial of service attacks or unauthorised electronic or physical access by third parties to the servers referred to in § 2 and § 3.
§ 10 Customer's own applications and data, liability of the customer
(1) Insofar as the customer is granted the possibility to store its own applications and/or data on servers belonging to antwerpes or third parties, the customer itself shall be responsible for all consequences resulting from the use of these applications and/or data.
(2) The customer shall be liable for ensuring that its applications and/or data installed on antwerpes' own servers
- do not violate applicable law and do not have immoral content,
- do not impair or cannot impair the regular operating behaviour or the security of the server and
- do not infringe claims and/or rights of third parties.
(3) antwerpes shall be entitled to block and, if necessary, delete applications and/or data which violate the provisions of paragraph 2. The customer shall indemnify antwerpes against all costs and claims in connection with a deletion and/or blocking. A deletion and/or blocking does not release the customer from its obligations towards antwerpes.
(4) antwerpes does not check the customer's own applications and data. Any consequences resulting from alleged or actual claims by third parties or lack of interoperability shall be borne exclusively by the customer.
(5) § 8 section 2 shall apply mutatis mutandis with respect to data of the customer that is stored on servers belonging to antwerpes and third parties within the scope of the applications and data being managed. The customer is obliged to regularly back up its own data in order to be able to replicate it in the event of a loss.
(6) The customer is solely responsible for the hardware and software within the scope of server colocation services.
§ 11 Registration and maintenance of domain names
(1) At the request of the customer, antwerpes shall, subject to availability, carry out the registration of the second-level domains with the respective competent registrar as well as the liaison with the administrative and technical contact persons and the zone contact person according to the specifications of the respective competent registrar. Furthermore, antwerpes shall carry out the assignment of an IP address to one or more second-level domains. Registration and liaison are carried out either directly or via a provider with the respective competent registrar. Details are stipulated in individual contracts.
(2) antwerpes shall assume no liability in relation to second-level domains reserved at the request of the customer.
§ 12 Warranty in relation to second-level domains
(1) antwerpes gives no warranty either for the accessibility of data under the second-level domain provided or for the proper functioning of the domain name server, via which the translation of second- level domains into IP addresses is done, as antwerpes has no influence on their functionality. This applies in particular, but without limiting the above, in cases where the customer has the second- level domain managed by its own domain name server.
(2) antwerpes does not check the legal admissibility of the second-level domains submitted for registration. Particularly for reasons of trademark and competition law, it is possible that claims of third parties exist which result in registrations having to be changed or deleted. antwerpes gives no warranty that second-level domains provided are free from the rights of third parties. The defence of second-level domains against claims of third parties is the sole responsibility of the customer. Furthermore, in view of the uncertain legal situation, antwerpes gives no guarantee that second-level domains provided can continue to be made available in the long term.
(3) The customer shall indemnify antwerpes against all costs incurred by antwerpes as a result of a necessary change to a second-level domain or in connection with any other assertion of third-party claims to a second-level domain.
(4) antwerpes reserves the right to block second-level domains until any third-party claims have been clarified in court.
(5) The customer shall indemnify antwerpes against all costs and claims in connection with a deletion or blocking pursuant to the above section 4. A deletion or blocking does not release the customer from its obligations towards antwerpes.
Special Terms and Conditions for Software Development Services of antwerpes ag, antwerpes healthy media gmbh and antwerpes health share gmbh
Preamble
These Special Terms and Conditions shall govern the legal relationship between antwerpes and the respective customer in addition to individual contractual provisions and the General Terms and Conditions for Services of antwerpes ("GTC Digital & Classic Communication"). The provisions of these Special Terms and Conditions shall take precedence over the General Terms and Conditions in the event of conflicting provisions.
§ 1 Offers
Offers by antwerpes are submitted without engagement. antwerpes expressly reserves the right to commit errors.
§ 2 Planning phase
(1) The creation of computer programs begins with the drawing up of a specification document. The specification document forms the binding basis on which the computer programs specified in the individual contract are to be created. It shall contain a detailed definition and description of the functions and tasks to be performed by the computer programs to be created, their interfaces, their interaction with other computer programs already in existence or to be created, as well as the information required and to be generated by the computer programs to be created; this shall include, among other things, the description of the information requirements, the information basis, the information flows, the processing rules and the other characteristics of the computer programs to be created, such as their reliability, user-friendliness, response times, maintainability and portability; in addition, the specification document shall also contain specifications for the carrying out of the final quality assurance test for the created computer programs.
(2) The specification document shall also contain a description of the hardware configurations required for the proper operation of the computer programs to be created in each case.
(3) For the drawing up of the specification document, antwerpes requires detailed information on the existing status and the intended target status after commissioning of the computer programs to be created, on the objectives and priorities pursued by the customer with these programs in terms of business policy and technological processes, as well as on all other stipulations within the sphere of the customer, the knowledge of which is necessary for antwerpes to draw up the specification document. antwerpes shall advise and support the customer continuously in this information-gathering process and shall assist in the compilation of the documentation required for the drawing up of the specification document.
(4) antwerpes shall analyse, evaluate and document the customer's needs. The results of this process shall be discussed with the customer. Based on this discussion, antwerpes shall then draw up the specification document.
(5) The customer is obliged to inform antwerpes of changes in its sphere which are of significance for the creation of the computer programs and the objectives pursued by it therewith. If the customer recognises that its information or requirements are incorrect, incomplete, ambiguous or from an objective perspective unsuitable for execution, the customer shall inform antwerpes of this without delay. antwerpes and the customer shall analyse the resulting effects on the computer programs to be created and, to the extent necessary and possible, develop alternative proposals.
(6) The customer shall examine the specification document handed over to it by antwerpes within five (5) working days after handover and notify antwerpes of any requests for changes and additions. If the customer does not make any comments within this period, although it is obliged to accept the document, or if it declares its consent to the specification document, the specification document shall be deemed to have been accepted. Change requests shall be dealt with in accordance with § 4.
(7) The accepted version of the specification document shall be recorded in writing and signed by both parties. Replacing all previous preliminary studies and possible intermediate stages of planning, it shall form the binding basis for the computer programs to be created according to its specifications. The contents of the specification document do not constitute a guarantee of certain features.
(8) antwerpes shall not assume any responsibility for the customer actually achieving the objectives pursued with the services and results provided by antwerpes.
§ 3 Computer program creation
(1) antwerpes shall create the computer programs on the basis of the respective specification document.
(2) Within the framework of the project manager meetings antwerpes shall inform the customer about the progress of the programming work.
(3) § 2 paragraph 5 shall apply accordingly.
§ 4 Change requests
(1) As long as antwerpes has not completed the computer programs to be created and handed them over to the customer, the latter may request antwerpes to make changes to the specification document to an extent that this is reasonable for antwerpes with regard to its operational resources.
(2) antwerpes shall examine the change request for its feasibility and the effects this has on the stipulations for performance of contract, in particular the remuneration and the deadlines for completion. antwerpes shall inform the customer of the result of this examination and proceed with the computer program development taking into account the change request, provided that the change request does not have any effect on the stipulations for performance of contract. If and to the extent that the change request has an impact on the stipulations of the contract, the parties shall accordingly endeavour to adjust the specification document by mutual agreement. The completion deadline for the computer program to be created in each case shall be postponed by a period equivalent to that during which an interruption of work on the program was necessary as a result of the change request until the adjustment of the specification document was made.
(3) If an adjustment of the contractual provisions is not made within one month after the customer has issued the change request, the work shall be continued without taking the change request into account. If the customer then terminates the individual contract, antwerpes shall nevertheless be entitled to demand the agreed remuneration.
(4) The additional services rendered by antwerpes in connection with a change request shall be remunerated on the basis of time and material in accordance with the remuneration rates of antwerpes applicable at that time.
§ 5 Delivery dates
(1) Completion dates for the specification document and the computer programs to be created according to the specification document are based on the respective individual contract. antwerpes shall inform the customer in writing, by email or fax, each time completion has taken place. In the case of computer programs, antwerpes shall also inform the customer of their functionality.
(2) antwerpes shall inform the customer immediately if it becomes apparent that a deadline pursuant to section 1 cannot be met. In this case, the parties will endeavour to reschedule the dates by mutual agreement. If no agreement is reached and antwerpes does not provide the services required of it on the respective dates pursuant to section 1, the customer shall be entitled to the rights pursuant to § 9 of the GTC Digital & Classic Communication.
(3) The dates pursuant to section 1 shall be extended by an appropriate period if antwerpes is unable to meet the deadline for reasons for which the customer is responsible or for reasons specified in § 15 of the GTC Digital & Classic Communication.
§ 6 Handover and acceptance of the work results
(1) Acceptance of the computer program created in each case shall be subject to successful functional testing with which the parties commence within three (3) working days after antwerpes has notified the customer of the completion and functionality of the computer program to be created and has handed over to the customer the computer program created together with a backup copy. The functional testing is carried out according to the procedure laid down in the specification document based on the criteria mentioned therein.
(2) The customer is obliged to notify antwerpes in writing of any deviations from the contractually specified requirements that are identified during the functional testing.
(3) After the functional testing has been successfully carried out, the customer shall provide its acceptance in writing without delay. The functional testing shall be deemed to have been successfully carried out if the tested computer program fulfils the contractually stipulated requirements. Deviations from the specification document and other defects resulting in only an insignificant reduction in the suitability of the computer program to be accepted shall not entitle the customer to refuse acceptance.
(4) If the customer does not provide its acceptance without undue delay contrary to section 3, antwerpes may set in writing a deadline of one (1) week for the submission of this acceptance. Acceptance shall be deemed to have taken place if the customer does not prove the existence of a defect within this period which entitles it to refuse acceptance in accordance with section 3. Furthermore, the operational use of the respective computer program shall be deemed acceptance.
(5) With the acceptance of the respective computer program, the customer waives its claims for the removal of defects and its warranty claims, unless it has expressly reserved such claims in writing to antwerpes.
(6) On the handover of the computer program, the customer is responsible for the data backup and archiving of the program files and codes. antwerpes does not guarantee the availability of its own archives.
§ 7 Rights of use
(1) Upon full payment of the contractually agreed remuneration, antwerpes shall grant the customer the right to use the computer programs created in accordance with the following provisions, this right being unlimited in terms of space and time, non- transferable and not entitling the customer to grant sub-licences. The right of use is limited to the customer's Internet presence specified in the individual contract as well as the intra- and extranet applications agreed upon, if any. Only within this framework may the customer load, display, run, transfer, store or otherwise copy the computer programs. Any use beyond this requires the express and prior written consent of antwerpes.
(2) To the extent that the computer programs to be created, when operated in accordance with the specifications contained in the specification document, in turn use computer programs and/or other copyright-protected material for which the copyright is held by third parties and/or antwerpes, antwerpes shall procure the necessary licences for this purpose for the benefit of the customer, the costs of which being charged to the customer. By concluding the individual contract, the customer simultaneously authorises antwerpes to conclude the necessary licence agreements.
(3) Within the scope of the licences procured pursuant to section 2, the content and scope of the rights of use shall be governed exclusively by the respective licence agreement.
(4) The customer shall not make the product available to third parties, neither in its original form nor in the form of complete or partial copies, without the express written consent of antwerpes. This shall also apply in the event of a complete or partial sale or dissolution of the customer's company. Employees of the customer or other persons shall not be deemed to be third parties as long as they are at the customer’s premises in order to use the product for the customer as contractually agreed.
(5) antwerpes shall provide computer programs in such a form that they meet the requirements in the defined environment. antwerpes shall be entitled, at its discretion, to use the program code in open or closed, protected or unprotected, editable or non- editable form. antwerpes shall in no case be obliged to disclose or hand over the source code. The customer is not entitled to read and/or modify the source code.
§ 8 Third party rights
(1) Subject to section 2, antwerpes shall bear all costs and damages imposed on the customer in the Federal Republic of Germany by a court of law due to the infringement of an industrial property right or copyright to which a third party is entitled caused by a computer program created by antwerpes and used in accordance with the contract, provided that the customer has notified antwerpes immediately in writing of the assertion of such claims and has pursued all defensive measures and settlement negotiations in agreement with antwerpes.
(2) If claims pursuant to section 1 have been asserted against the customer or are to be expected, antwerpes may modify or replace the computer program concerned at its own expense to an extent reasonable for the customer. If this is not possible or if it is not possible to obtain a right of use with reasonable effort, each contractual party may terminate the individual contract for the computer program concerned without notice. In this case antwerpes shall be liable to the customer for the damage incurred by the termination in accordance with § 8 of the GTC Digital & Classic Communication.
(3) antwerpes shall not be liable for the rights and claims stipulated or referred to in this § 8 if the claims of third parties pursuant to paragraph 1 are based on computer programs and/or other copyright-protected materials provided by the customer or licensed pursuant to § 7 section 2 or are based on the computer program in question being used in a version other than the unmodified original version supplied by antwerpes or under conditions of use other than those specified in the specification document.
§ 9 Warranty
(1) It is generally accepted that it is not possible to develop computer programs in such a way that they are error-free for all modes of application.
(2) For the computer programs created by antwerpes, antwerpes warrants the contractually agreed use in accordance with the specification document. This applies in particular to features already agreed on.
(3) Should the computer program in question deviate significantly from the service description in the specification document, antwerpes shall be obliged to rectify the deviation, provided this does not involve unreasonable effort. A significant deviation is deemed to exist if the use of the computer program in question for the intended purpose as described in the specification document is not possible in an economically reasonable manner or is only possible with unreasonable restrictions. antwerpes is entitled to commission subcontractors to rectify the deviation. Only if antwerpes does not succeed within a period of time that is reasonable for it in eliminating the significant deviations by means of rectification or circumventing them in such a way that the customer is enabled to use the computer program concerned in accordance with the contract, may the customer reduce the remuneration payable under the individual contract to the extent that the reduction in remuneration corresponds to the difference that would have existed between the value of the faulty computer program and the value of the error-free computer program in question.
(4) Instead of and under the conditions of the reduction of the remuneration, the customer may terminate the individual contract without notice. In the event of termination, the customer shall remunerate the cost of the use of the licence material up to that point in time. The obligation to rectify deviations as well as the right to reduce the remuneration and to terminate the contract shall end six months after receipt of the computer program concerned.
(5) Defects which were not detectable from an objective perspective in the course of a careful examination of the computer program concerned pursuant to § 6 shall be reported to antwerpes in writing within five (5) working days after their actual detection. In the event of a breach of this duty of notification, the computer program concerned shall be deemed to be free of defects in respect of this defect. The customer shall provide antwerpes with verifiable documents on the type and occurrence of deviations from the service description in the specification document and shall cooperate on the limitation of errors.
(6) Notwithstanding the aforementioned rights and obligations, antwerpes shall have the right at any time, even after expiry of the warranty and other limitation periods, to carry out improvements and maintenance work on the computer program concerned on its own initiative, in particular by means of new versions or additions. If the customer denies antwerpes access to the computer program in question for the aforementioned purpose, the customer shall forfeit all claims to which it may otherwise be entitled against antwerpes, including any subsequent claims in connection with the computer program in question.
(7) The computer programme in question is created for use in the system environment specified in more detail in the specification document and for interaction with certain other computer programs. The warranty does not cover defects caused by deviations from the conditions of use specified in the specification document.
(8) antwerpes does not warrant that the third parties with whom licence agreements are concluded pursuant to § 7 section 2 are in turn entitled to grant the rights of use granted to the customer.
(9) The performance and warranty obligations of antwerpes shall expire if changes are made to the computer program in question, to its installation or to the results of any rectification without antwerpes’ express consent, unless the customer proves that the changes are unrelated to the error that has occurred and do not require any increased effort in carrying out the rectification. This does not suggest that the customer is in any way authorized to modify the computer program in question and its installation.
§ 10 Material provided
(1) antwerpes shall not check material of any kind provided by the customer for use in the context of the creation of the program for its suitability for the intended purpose. Accordingly, all consequences resulting from the use of the material provided during the development phase, such as additional expenditure and delays in the creation of the program, shall be borne by the customer.
(2) antwerpes shall not be liable for damage resulting from material provided by the customer pursuant to section 1.
Special Terms and Conditions for Maintenance Services of antwerpes ag, antwerpes healthy media gmbh and antwerpes health share gmbh
Preamble
These Special Terms and Conditions shall govern the legal relationship between antwerpes and the respective contractual partner in addition to individual contractual provisions and the General Terms and Conditions for services of antwerpes ("GTC Digital & Classic Communication"). The provisions of these Special Terms and Conditions shall take precedence over the General Terms and Conditions in the event of conflicting provisions.
§ 1 Offers
Offers by antwerpes are submitted without engagement. antwerpes expressly reserves the right to commit errors.
§ 2 Scope of services
(1) The customer shall, in accordance with the further provisions of these Special Terms and Conditions, be entitled, in return for remuneration on the basis of material and time required by antwerpes, to request for the computer programs specified in the individual contract the following maintenance services:
(a) the support of the project manager by e-mail, fax or - in urgent cases - by telephone ("hotline");
(b) maintenance of the computer programs specified in the individual contract ("maintenance service") during on-call service times;
(c) maintenance services outside the on-call service times and for computer programs that are used under conditions of use other than those specified by the manufacturer or antwerpes or that have been modified by the customer’s own programming work;
(d) maintenance services for parts of computer programs whose function depends on other computer programs, unless there is also a corresponding maintenance contract between the customer and antwerpes for the computer program in question;
(e) maintenance services that become necessary as a result of force or other external influences or as a result of intentional or grossly negligent misconduct on the part of the customer;
(f) training of the customer's staff;
(g) installation of computer programs; and
(h) other consulting services in connection with the above services.
(2) The customer may request the maintenance services for the duration specified in the individual contract. If no specific duration of the contract is stipulated, the individual contract shall be deemed to have been concluded for an indefinite period of time and may be terminated with three (3) months' notice at the end of each calendar half-year by written declaration to the respective other party. The right to terminate for good cause remains unaffected.
§ 3 Maintenance service
(1) antwerpes shall provide a maintenance service for the individually contracted computer programs to maintain the operational readiness and to eliminate errors in these computer programs which cause more than just an insignificant disruption to their use.
(2) The maintenance service is limited to the system environment specified in the individual contract. antwerpes must be notified immediately in writing of any change to the system environment or a change in the place of installation. Any additional costs arising from this shall be borne by the customer.
(3) After receipt of an error message antwerpes shall begin analysis of the error within 24 hours at the latest, on weekdays from Monday to Friday. An error in accordance with this provision shall be deemed to exist if the computer program concerned does not properly perform the functions specified in its service description, if it delivers incorrect results, if the running of the program is randomly interrupted or if the functioning of the program deviates in any other way from its intended use, so that the use of the computer program is not possible or is significantly disrupted.
(4) Troubleshooting within the scope of the maintenance service includes narrowing down the cause of the error, diagnosing the error as well as rectifying the error or, if this is not possible with reasonable effort, making the computer program in question ready for operation by bypassing the error.
(5) The project manager (§ 3 section 1 of the GTC Digital & Classic Communication) shall be instructed by antwerpes in the further procedures for error reporting, analysis and elimination.