General Terms and Conditions

Of Mitkov Systems GmbH

1. Scope

These contractual conditions apply to all offers, deliveries, and services under purchase, work, or service contracts, and other contracts, as well as cloud services, provided to entrepreneurs within the meaning of § 14 BGB (hereinafter referred to as "Customer") and related offers from Mitkov Systems GmbH (hereinafter referred to as "Contractor").
1.1.2 The Contractor's services and offers are exclusively based on these terms and conditions. Deviating terms and conditions of the Customer do not become part of the contract unless the Contractor expressly agrees to them in writing.

1. Conclusion of Contract
   2.1. Our offers are non-binding and subject to change. Contracts are only concluded upon receipt of our written order confirmation.
   2.2. The content of the contract is determined by the order confirmation and our General Terms and Conditions. Deviating agreements always require our express written confirmation.
   
   
2. Service Content and Provision

3.1 GENERAL
3.1.1 The scope of the service to be provided is determined by the order confirmation, including the documents referred to therein, performance specifications, requirement specifications, etc. Additional orders placed after the conclusion of the contract are always subject to charge unless otherwise agreed.
3.1.2 Subsequent changes and/or additions to the contract and service content become binding only after written confirmation by the Contractor.
3.1.3 The Customer is responsible for project and success management unless otherwise agreed contractually. The Contractor provides the contractually agreed service according to the principles of proper professional practice.
3.1.4 As far as the services are provided at the Customer's premises, only the Contractor has the authority to issue instructions to its employees. The employees will not be integrated into the Customer's operations.
3.1.5 The Customer bears the risk of whether the services ordered meet his requirements and needs. In case of doubt, he must seek timely advice from the Contractor or from qualified third parties.
3.1.6 The Contractor decides which employees are deployed and reserves the right to replace them at any time. The Contractor may also use freelancers and other companies for the fulfillment of the contract. The Customer has no right to demand that certain employees perform the service. The Contractor determines the manner, place, and time of service provision.
3.1.7 The place of service provision is, unless otherwise agreed, the Contractor's place of business.

3.2. ORDERING AND USE OF CLOUD SERVICES

3.2.1 ORDER PROCESS
3.2.1.1 A user account is required to use the software. The created user accounts must always be permanently assigned to a single, specifically named natural person. The created user accounts are not transferable. Shared use of user accounts by multiple persons as so-called concurrent use is not permitted unless explicitly agreed contractually.
3.2.1.2 Ordering cloud services requires the creation of a customer account. Only entrepreneurs within the meaning of § 14 BGB can create a customer account. The creation of an account requires at least the storage of the company name and address, a contact person, an email address, and the corresponding billing information. Details on the collection and processing of this data are governed by our privacy policy.

3.2.2 SERVICE CONTENT
3.2.2.1 The specific services to be provided by the Contractor, the number of users, and agreed usage volumes are determined by the order confirmation, which contains a detailed service description of the cloud services ordered in each individual case.
3.2.2.2 The order confirmation also references the relevant usage and license terms of the respective manufacturer or cloud service provider for the respective cloud services, which also become an integral part of the contract. By placing the order, the Customer expressly agrees to these usage and license terms.
3.2.2.3 Details on the collection and processing of this data are governed by our privacy policy.

3.2.3 REMUNERATION; PAYMENT PROCESSING
3.2.3.1 The Customer pays a monthly fee (rent) for the duration of the provision of the cloud services. The amount of the fee is based on the scope of use stated in the respective order. For all subsequently added cloud services or an expanded scope of use, the prices valid at the time of the respective order apply unless expressly agreed otherwise.
3.2.3.2 All prices are quoted plus the applicable statutory VAT.
3.2.3.3 The fee is due monthly in advance for the respective contract term on the 3rd working day. In case of default in payment, interest of 9 percentage points above the applicable base interest rate is due. The assertion of further damages caused by delay remains unaffected.
3.2.3.4 The Contractor is entitled to adjust the fee for the provision of cloud services with 6 weeks' notice at the end of a calendar year. If the fee is adjusted by more than 10 percentage points, the Customer is entitled to terminate the use of the cloud services with 4 weeks' notice.

3.2.4. USAGE RIGHTS AND RESTRICTIONS OF CLOUD SERVICES
3.2.4.1 The use of cloud services is only permitted to the extent ordered. The Contractor grants the Customer a non-exclusive, non-transferable right to use the cloud services in the manner intended for the duration of the respective usage agreement. This usage right also applies to new versions of the cloud services (updates) provided during the term of the respective contract.
3.2.4.2 Sub-licensing, lending, and subleasing are prohibited, as is any other form of paid or unpaid distribution or transfer of the granted usage rights to third parties. Usage restrictions also arise from the usage and license terms of the respective manufacturer referenced in the order.
3.2.4.3 In any case, neither the Customer nor those who access the cloud services via the AGB cloud services are entitled to use the cloud services in a way

• that is prohibited by laws, regulations, or official orders or regulations in a relevant legal jurisdiction;
• that infringes the rights of third parties;
• that aims to gain unauthorized access to services, devices, data, accounts, or networks or to disrupt them;
• that aims to distribute spam or malware;
• that may damage the cloud services or impair their use by third parties;
• where a failure of the cloud services could lead to personal injury or damage to persons or to damage to nature and the environment, or
• where a third party is supported in intending to commit any of the above actions.

 

3.2.5 BLOCKING OF CLOUD SERVICES
The Contractor is entitled to immediately block the cloud services if there is a justified suspicion that the stored data is illegal and/or infringes the rights of third parties or the use of the cloud services is contrary to the usage terms. A justified suspicion of illegality and/or an infringement of rights exists in particular if courts, authorities, and/or other third parties inform the Contractor. The Contractor must inform the Customer of the block and the reason for it without delay. The block will be lifted as soon as the suspicion is refuted. The blocking of the cloud services does not lead to a loss of the Contractor's claim for remuneration.

3.2.6 LICENSE MEASUREMENT; LICENSE EXPANSION
3.2.6.1 The Contractor reserves the right to digitally monitor compliance with the usage agreement. The Customer agrees to the use of tools for license measurement for this purpose.
3.2.6.2 If the Customer wishes to use the cloud services covered by the contract to a greater extent than agreed, it is necessary for the Customer to acquire the additional usage rights required. Overuse is generally considered a breach of contract by the Customer. In this case, the Customer is obliged to notify the Contractor of the overuse without delay. The parties will then agree on an expansion of the usage right. For the period of overuse, i.e., until the conclusion of such an agreement or the cessation of overuse by the Customer, the Customer is obliged to compensate for the overuse according to the Contractor's current price list.

1. Deadlines, Default
   4.1 Service deadlines are only considered fixed deadlines if this is expressly agreed in the contract. The agreement of a fixed deadline is subject to the condition that the Contractor receives the services of the Customer, its respective suppliers, and subcontractors in a timely and contractual manner.
   4.2 If a cause for which the Contractor is not responsible, including strike or lockout, affects the deadline ("disturbance"), the deadlines will be extended by the duration of the disturbance, including a reasonable restart phase if necessary. One contracting party must immediately inform the other contracting party about the cause of a disturbance occurring in its area and the duration of the postponement.
   4.3 If the effort increases due to a disturbance, the Contractor may also demand compensation for the additional effort, unless the Customer is not responsible for the disturbance and its cause is outside its area of responsibility.
   4.4 If the Contractor is in default with the service provision, the Customer's compensation for damage and expenses due to the default is limited to 0.25% of the price for the part of the service that cannot be used due to the default for each completed week of the default. The liability for default is limited to a maximum of 5% of this price. This does not apply if the default is based on gross negligence or intent on the part of the Contractor.

 

1. Remuneration and Payment Conditions, Set-off and Retention
   5.1 Remunerations are generally net prices plus the statutory VAT applicable at the time of service provision. The Contractor may invoice regular services monthly.
   5.2 All invoices are generally due for payment without deduction no later than 14 calendar days after receipt. No discount is granted.
   5.3 Unless otherwise agreed, the remuneration is calculated based on effort at the generally applicable prices of the Contractor at the time of service provision. If a price list of the Contractor is available, it must be applied. The invoicing based on effort is carried out upon presentation of the activity records customary at the Contractor. The Customer may object to the determinations made therein in text form within two weeks after receipt of the invoice. If the Customer raises no objections within these two weeks, the activity records are considered accepted.
   5.4 Travel times, travel costs, and accommodation costs are calculated based on the Contractor's place of business. Travel times and costs are incurred for trips between the employee's place of business and the respective Customer's place of assignment or between different Customer's places of assignment.
   5.5 Unless otherwise agreed, travel expenses, incidental expenses, and material costs are reimbursed according to the Contractor's price list valid at the time of service provision, but at least according to the applicable tax regulations.
   5.6 Set-off or the exercise of a right of retention is only permitted with counterclaims that have been legally established, are undisputed, or recognized by the other contracting party.
2. Term
   6.1 Unless otherwise agreed between the contracting parties, a contract that includes a continuing obligation is concluded for an indefinite period. After one year, an indefinite contract may be terminated with three months' notice at the end of the year.
   6.2 The right to extraordinary termination remains unaffected.
   6.3 Termination declarations are only effective in writing.
3. Customer’s Obligations
   7.1 The Customer is obliged to support the Contractor and to create all necessary conditions for the proper execution of the order in his operating sphere, e.g., the necessary operating and deployment conditions for hardware and software. In particular, he will provide the necessary information and, if necessary, enable remote access to the Customer's system. The Customer also ensures that qualified personnel is available to support the Contractor. If special security requirements apply in the Customer's operations, the Customer must inform the Contractor of this before the conclusion of the contract. The necessary operating and deployment conditions are derived from the contract, and if not regulated therein, from the product description or operating instructions.
   7.2 If it is agreed in the contract that services can be provided on-site at the Customer's premises, the Customer shall provide sufficient workspaces and work equipment free of charge at the request of the Contractor. The Customer also grants the Contractor free access to the hardware installation site.
   7.3 The proper backup of data is the responsibility of the Customer unless the Contractor is contractually obligated to provide such services. Proper data backup includes all technical and/or organizational measures to ensure the availability, integrity, and consistency of IT systems, including the data, programs, and procedures stored on and used for processing on these IT systems. Proper data backup means that the measures taken allow for the immediate or short-term restoration of the state of systems, data, programs, or procedures after a recognized impairment of availability, integrity, or consistency due to a damaging event; the measures include at least the creation and testing of the recoverability of copies of standard software, data, and procedures in defined cycles and generations.
   7.4 The Customer must report malfunctions to the Contractor in a comprehensible and detailed form, providing all information useful for the detection and analysis of the malfunction, in text form within 24 hours. In particular, the steps that led to the occurrence of the malfunction, its appearance, and its effects must be specified.
   7.5 When describing, delimiting, identifying, and reporting errors, the Customer must follow the instructions given by the Contractor.
   7.6 During necessary test runs, the Customer must be personally present or provide competent employees authorized to make decisions on errors, functional extensions, functional reductions, and changes to the program structure. If necessary, other work with the computer system must be suspended during the work period.
   7.7 The Customer appoints a responsible contact person. This person can make binding decisions for the Customer or obtain them promptly and is authorized to make legal declarations in connection with this. The Customer ensures that the contact person appointed by him provides the Contractor with the necessary documents, information, and data completely, correctly, in a timely manner, and free of charge, unless they are the responsibility of the Contractor. The Customer also ensures their updating. The Contractor may assume the completeness and accuracy of these documents, information, and data unless they are obviously incomplete or incorrect to the Contractor.
   7.8 Unless otherwise agreed, the Customer will additionally store all documents, information, and data provided to the Contractor so that they can be reconstructed in the event of damage or loss of data carriers.
   7.9 The Customer informs the Contractor of any changes in the employees and users of the services to be provided by the Contractor, insofar as these are relevant to the Contractor's service provision. The additional costs arising from these changes are borne by the Customer.
   7.10 The Customer ensures that the use and storage of private data, such as private data of employees, on the systems operated by the Contractor does not lead to legal risks for the Contractor. If claims are made against the Contractor due to the use or storage of private data, the Customer will indemnify the Contractor against all claims. If the Contractor suffers damages due to non-compliance with the above, these damages must be compensated by the Customer.
   7.11 Changes to the Contractor's services or the IT infrastructure operated by the Contractor by the Customer are only permissible after prior coordination with the Contractor. If uncoordinated changes lead to additional effort on the part of the Contractor, this must be compensated by the Customer according to the Contractor's price list valid at the time of service provision. Damages caused by uncoordinated changes are also to be paid by the Customer. In the case of uncoordinated changes that cause disruptions in the IT infrastructure operated by the Contractor within 24 hours, it is presumed that the additional effort or damages and other consequences were caused by the changes. The Customer can prove that the changes were not causal.
   7.13 The Customer will use the Contractor's services in such a way that the data security and data flow in the Contractor's communication network are not adversely affected. If programs, scripts, or similar installed by the Customer endanger the operation of the Contractor's communication network or the security and integrity of other devices, the Contractor may, considering the legitimate interests of the Customer, temporarily suspend the connection of the IT system to the communication network and the data center in whole or in part with immediate effect. In this case, a notification is sent to the Customer. A new connection can only be made once the above-mentioned complications have been resolved. The Contractor is not liable for any damages caused by the suspension of the connection for this reason.
   7.13 The Customer is responsible for his internet connection to access services from the contract.

8. Assignment of Rights
8.1 The Customer may only assign rights from the contract to third parties with the prior consent of the Contractor.
8.2 The Contractor is entitled to transfer all obligations and rights under the contracts to third parties. The Contractor will ensure that the Customer does not suffer any disadvantages as a result. 

1. Confidentiality, Duty of Care, Control Rights, Data Protection
   9.1 Both contracting parties undertake to keep confidential all know-how and trade secrets they learn about each other in the course of performing this contract and all know-how that is not generally known to third parties and to require their employees to do the same.
   9.2 The contracting parties are aware that electronic and unencrypted communication (e.g., by email) is associated with security risks. Therefore, they will not assert any claims based on the lack of encryption, unless encryption has been agreed upon in advance.
   9.3 The contracting parties will comply with the applicable data protection regulations, in particular those applicable in Germany, and will require their employees involved in the contract and its execution to observe data secrecy, unless they are already generally required to do so.
   
   
2. Subcontractors
   10.1 The Contractor is entitled to transfer all obligations and rights under the contracts to third parties. The Contractor will ensure that the Customer does not suffer any disadvantages as a result.
   10.2 The Contractor is also entitled to have all obligations fulfilled by third parties on behalf of the Contractor. In this case, the Contractor continues to guarantee the proper fulfillment of its contractual obligations to the Customer as the contracting party, and the Customer accepts the service provided as a service of the Contractor.
   
   
3. Performance Disruption, Defect Liability
   11.1 If the service is not provided in accordance with the contract or is provided defectively and the Contractor is responsible for this, the Contractor is obliged to remedy the defect at no additional cost to the Customer and to provide the service in accordance with the contract within a reasonable period. The prerequisite is that the Customer lodges a complaint immediately, but no later than two weeks after becoming aware of the defect. If the contractual provision of the service is not successful for reasons for which the Contractor is responsible even within a reasonable grace period expressly set by the Customer, the Customer is entitled to withdraw from the contract.
   11.2 In this case, the Contractor is entitled to remuneration for the services provided under the contract up to the point of withdrawal. The remuneration is only waived for those services for which the Customer proves within two weeks after the declaration of withdrawal that they are unusable and of no interest to him.
   11.3 The right to extraordinary termination of the contract for good cause remains unaffected. The Contractor is entitled to remuneration for the services provided under the contract up to the point at which the termination becomes effective. The remuneration is only waived for those services for which the Customer demonstrates within two weeks after the declaration of termination that they are unusable and of no interest to him.
   11.4 Further claims by the Customer due to performance disruptions are excluded. This exclusion does not apply in the case of intent or gross negligence, breach of cardinal obligations, fraudulently concealed defects, or in the case of injury to life, limb, or health.
   11.5 Warranty claims expire after one year.
   
   
4. Acceptance
   If acceptance is necessary due to the nature of the order, the following applies:
   12.1 Acceptance of the services specified in the order by the Customer takes place at the Contractor's business premises unless otherwise agreed. The Contractor will notify the Customer by telephone, email, or in writing at its discretion that the ordered service is ready for acceptance at our premises. The Customer is in default of acceptance if he does not collect the order object from us and accept it within one week after receipt of the notification or receipt of our invoice.
   12.2 The Customer will promptly carry out the acceptance test after being notified of the Contractor's readiness for acceptance and check compliance with the technical specifications.
   12.3 If the Contractor's service corresponds to the technical specifications and any changes and additional requests expressly agreed between the contracting parties, the Customer will immediately declare acceptance in writing.
   12.4 If the Customer does not declare acceptance six weeks after the completion of the installation by us and has not reported any significant defects in the meantime, the service is considered accepted.
   12.5 Acceptance is also deemed to have taken place if the Customer uses the service without declaring that the use is significantly impaired.
   12.6 If defects occur during the Customer's inspection, they will be noted in the acceptance protocol. The Contractor will remedy these defects within a reasonable period and then present the item for acceptance again. The acceptance will then be governed by the above conditions.
   
   
5. Liability
   13.1 The Contractor is liable without limitation for damages resulting from injury to life, limb, or health that are based on an intentional or negligent breach of duty by the Contractor or an intentional or negligent breach of duty by a legal representative or vicarious agent of the Contractor.
   13.2 For other liability claims, the Contractor is liable without limitation only in the absence of the guaranteed quality and for intent and gross negligence, including that of its legal representatives and senior employees.
   13.3. The Contractor is only liable for slight negligence if a duty is violated, the fulfillment of which is of particular importance for achieving the purpose of the contract (cardinal duty). In the event of a breach of a cardinal duty, liability for all cases of damage is limited to a total of EUR 10,000.00. This also applies to lost profits and missed savings. Further liability for slight negligence and for other, remote consequential damages is excluded.
   13.4 Liability for data loss is limited to the typical restoration effort that would have occurred with regular and appropriate backup of data.
   13.5 Liability under the Product Liability Act remains unaffected (§ 14 ProdHG).
   13.6 The Contractor does not assume liability for software provided by third parties and for patches, updates, or other software updates obtained from third parties.
   
   
6. Customer’s Duty of Care, Reporting, and Toleration Obligations
   14.1 The Customer is obliged to keep passwords and access data secret from unauthorized third parties. Passwords and access data must be stored in such a way that unauthorized third parties cannot access them to prevent misuse by third parties. If unauthorized third parties become aware of passwords or access data, the Contractor must be informed immediately. The same applies to the misuse of passwords or access data.
   14.2 The Customer ensures that the use of administrator rights is only available to authorized employees.
   
   
7. Usage Rights
   15.1 The Contractor grants the Customer the right to use the contract subject to the agreed scope upon full payment of the due remuneration. If the scope of use is not agreed upon, a simple, non-exclusive, non-transferable right of use for permanent use, limited to the respective contractual purpose, is considered agreed.
   15.2 The Contractor is entitled to take appropriate technical measures to protect against non-contractual use.
   15.3 The Contractor may revoke the Customer's right of use if the Customer significantly violates usage restrictions or other regulations to protect against unauthorized use. The Contractor must set the Customer a reasonable grace period for remedial action beforehand. In the event of repetition and in the case of special circumstances that justify immediate revocation after weighing the interests of both parties, the Contractor may declare the revocation without setting a grace period. The Customer must confirm the cessation of use to the Contractor in writing after the revocation.
   
   
8. General
   16.1 Should one or more of the above conditions be or become invalid or contain a gap, the remaining conditions shall remain unaffected.
   16.2 The place of jurisdiction for all disputes arising from the contractual relationship and regarding its validity is our company’s registered office if the Customer is a merchant, a legal entity under public law, or a special fund under public law, or has its registered office abroad.
   16.3 The law of the Federal Republic of Germany applies exclusively.
   16.4 Should individual provisions be or become invalid or void, the validity and effectiveness of the remaining provisions shall remain unaffected. In such a case, the invalid provision shall be reinterpreted or supplemented to achieve the intended regulatory purpose as closely as possible.

Mitkov Systems GmbH

As of 10.08.2021