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General Terms and Conditions

General Terms and Conditions of scale MSP GmbH for Business Relationships

between scale MSP GmbH,

hereinafter referred to as „scale MSP“,

and the Managed Services Provider or Customer,

hereinafter referred to as „Partner.“

Applicability of the General Terms and Conditions

1.1. These General Terms and Conditions (GTC) govern the provision or performance of all current and future services and deliveries of the contracting parties.

1.2. The deliveries, services, and offers of scale MSP are based on these GTC. Any terms or conditions of the Partner, whether related to purchases or other aspects, are not recognized by scale MSP, and they are hereby rejected.

1.3. Separate contracts will be concluded for the respective services and deliveries. These contracts must be in writing and are based on these GTC.

Conclusion of Contract

2.1. Unless otherwise agreed in individual cases, contracts have an initial minimum term of 12 months. Afterward, termination can be made with four weeks‘ notice to the end of the month. The right to extraordinary termination remains unaffected. Notifications must be made in writing via email or letter.

2.2. scale MSP’s offers are non-binding unless expressly agreed otherwise. The contract is concluded when scale MSP accepts it, especially through order confirmation or by rendering the service. The order confirmation is conditional on any outstanding payment arrears of the Partner being settled.

2.3. Images or drawings contained in the documents of the respective offers are for reference purposes only.

2.4. Before concluding the contract, the Partner must inform scale MSP in writing about any special requirements. However, such notices do not expand the contractual obligations or scale MSP’s liability. In the absence of other explicit agreements, scale MSP is only obliged to provide the ordered services.

2.5. The Partner offers the services and products in their own name and on their own account to their end customers. They act as an independent merchant.

2.6. Neither party is authorized to make statements or commitments on behalf of the other party without prior written consent.

2.7. The products and services offered change due to their technical nature at regular intervals. Therefore, scale MSP reserves the right to further develop its products, remove components from the portfolio, and/or replace them with new products.

2.8. The Partner will comply with fair competition laws and the relevant regulations regarding the distribution and deployed products and services, protected product names, and copyright notices, without removing them.

Liability for Defects in Material and Legal Defects

3.1. scale MSP will work together with the respective manufacturer to assist the Partner in rectifying defects that occur at the end customer or the Partner in a reasonable time. Rectifying defects can be achieved through the delivery of updates or workarounds. In all other respects, the statutory regulations apply regarding liability for defects in material and legal defects.

3.2. The above provisions do not apply to claims for damages, fraudulent misrepresentation, and warranties. In these cases, the statutory limitations apply.

3.3. The Partner is obliged to promptly inspect the services delivered under this agreement upon receipt. Obvious defects must be reported in writing after the inspection. If the inspection and notification duty is violated, the delivered services will be deemed accepted concerning the respective defect. For the services provided by scale MSP, § 377 of the German Commercial Code (HGB) applies.

3.4. Obvious defects must be reported to scale MSP promptly, but no later than 14 days after receiving the contractual products. Hidden defects must be reported to scale MSP promptly, but no later than 7 days after discovering the defect.

3.5. In case of defects, scale MSP may first rectify them. The rectification is carried out according to scale MSP’s choice, either by fixing the defect or by delivering a defect-free product. The delivery of updates that do not contain the defect or a workaround that bypasses the defect also counts as rectification.

3.6. If the rectification fails, the Partner may choose to reduce the purchase price or, if the defect only slightly impairs the contractual use of the contractual product, withdraw from the contract regarding the defective contractual product. Failure of rectification is only assumed if scale MSP has received a sufficient opportunity for rectification within a reasonable period, and the desired outcome has not been achieved. The provision of a workaround that bypasses the defect is considered when determining the timeframe.

3.7. scale MSP is not liable when the use of the products is impaired due to improper installation, operation, or maintenance. Liability for impairments resulting from the use of the products under conditions that do not meet the requirements of the software specified in the documentation provided with the product, manufacturer’s communication, or scale MSP is excluded.

3.8. Warranty claims for contractual products expire within 12 months from the delivery of the contractual product. This exclusion does not apply to claims for damages or defects intentionally concealed by scale MSP.

3.9. The Partner is only entitled to claim damages for defects to the extent that liability is not excluded or limited in these terms and conditions.

3.10. If the Partner’s customer purchases a contractual product for a purpose that cannot be attributed to their commercial or self-employed professional activity, the Partner is entitled to assert claims against scale MSP in accordance with the statutory provisions under the supplier’s recourse (§ 478 BGB). In the case of a justified recourse to the supplier, the limitations of liability for defects do not apply.

3.11. scale MSP’s liability for damages, regardless of the legal basis, is subject to the following provisions:

– scale MSP’s liability for damages caused intentionally or by gross negligence by scale MSP, one of its vicarious agents, or legal representatives, is unlimited concerning the amount. In the case of damages resulting from injury to life, body, or health, the liability of scale MSP, its legal representatives, or vicarious agents is unlimited, regardless of the degree of fault.

– Liability is unlimited regarding the amount for damages resulting from serious organizational fault by scale MSP, as well as for damages resulting from a lack of guaranteed quality.

– If scale MSP violates contractual obligations, the fulfillment of which enables the proper execution of the contract and on which the Partner relies, liability for damages is limited to the typically foreseeable damage, provided none of the cases mentioned in 3. are given.

Any further liability for damages is excluded, in particular, liability for damages without fault and liability for lost profits. Liability under the Product Liability Act remains unaffected. If damage is attributable to both scale MSP’s fault and the fault of the Partner, the Partner shall offset their contributory negligence. The Partner is responsible for regularly backing up their data. In the event of data loss caused by scale MSP, scale MSP is solely responsible for the costs of data replication from the backup copies created by the Partner and the restoration of data that would have been lost even with proper data backup.

Infringement of Third-Party Rights

4.1. If the Partner becomes aware of a claim by a third party that the use of a contractual product violates their rights or those of third parties, they will immediately inform scale MSP. This does not affect the liability for legal defects of scale MSP.

Payment and Payment Terms

5.1 The price specified by scale MSP in the offer or order confirmation applies. Otherwise, unless otherwise agreed in writing, the price stated in scale MSP’s price list on the day of order acceptance applies. scale MSP’s prices are net prices, „ex works,“ plus applicable statutory value-added tax.

5.2 scale MSP reserves the right to increase its prices accordingly if cost increases occur after the contract has been concluded, particularly due to collective bargaining agreements, increases in material prices, or exchange rate fluctuations.

5.3 Payments are due nine days from the invoice date unless otherwise agreed. If the Partner exceeds the granted payment deadlines, scale MSP is entitled, irrespective of further rights, to demand default interest of five percentage points per annum above the respective base interest rate pursuant to § 288 Para. 2 BGB. In the event of payment default, all open claims become immediately due for payment. scale MSP charges a processing fee of €15.00 for direct debit payments not honored due to objection or lack of cover, in addition to its own and third-party bank fees. Furthermore, scale MSP is entitled to suspend future deliveries and deactivate services used without further notice.

5.4 Offset is only permissible with counterclaims that are undisputed or have been legally established. The Partner has no right of retention due to contested counterclaims or claims arising from another contractual relationship or another order. Regardless of other provisions of the Partner, scale MSP is entitled to credit its payments to older debts first, then any costs that have already been incurred, then interest, and finally to the principal claim.

5.5 All claims of scale MSP, including those for which installment payment has been agreed, become immediately due, and any granted payment terms are null and void if the payment term for a claim is not met, or if the Partner falls into arrears, or if insolvency proceedings are initiated against the Partner or if they have filed an affidavit regarding their financial situation pursuant to § 807 ZPO. In these cases, scale MSP is also entitled to make future deliveries conditional on prepayment or security deposit. If prepayment or security deposit is not provided even after a reasonable grace period, scale MSP can withdraw from the contract.

Delivery and Service Provision

6.1 The deadlines specified by scale MSP are always non-binding, unless deadlines and dates are expressly agreed upon as binding. Performance and delivery deadlines start from the date of contract conclusion unless otherwise agreed.

6.2 Fixed performance dates must be explicitly agreed upon in documented form. The agreement of a fixed performance date is subject to scale MSP receiving services from its respective upstream suppliers and subcontractors in a timely and contractual manner.

6.3 scale MSP is authorized to engage third parties as subcontractors for all obligations and/or to involve them in the provision of services. The Partner will not incur significant disadvantages from this.

6.4 If non-compliance with deadlines is due to force majeure, e.g., mobilization, war, riots, or similar events not caused by the seller, such as strikes or lockouts, the deadlines are extended for the duration of the aforementioned events or their effects.

6.5 If the Partner is responsible for the disruption, scale MSP may demand compensation for additional effort unless the Partner is not responsible for the disruption, and its cause is beyond its sphere of responsibility.

6.6 scale MSP provides the contractually agreed-upon services according to the principles of proper professional practice. The Partner bears responsibility for the success and project management unless otherwise agreed in the contract.

6.7 Compliance with deadlines for the delivery of products or services is contingent upon the timely receipt of all information, documents, approvals, and compliance with agreed payment terms and other obligations by the Partner. If these conditions are not met, the deadlines will be extended accordingly.

6.8 scale MSP’s performance obligation is suspended in cases of force majeure or in the event of incorrect or untimely self-supply by scale MSP’s suppliers that are beyond scale MSP’s control. In these cases, scale MSP is entitled to postpone performance as long as these events persist. In the case of a permanent or longer-lasting performance disruption exceeding six months, both parties are entitled to withdraw from the contract in whole or in part. In such a case, scale MSP will immediately inform the Partner of the unavailability of the service.

6.9 In the event of productive use of contractual services by the Partner, this is considered as acceptance. In such a case, no explicit written acceptance is required.

Contract and License Conditions for Third-Party Services

7.1 When third-party services are used, the terms and conditions of use and licensing of the third party apply. This contract does not alter or intend to alter the terms and conditions of use and licensing of third parties. The terms and conditions of use and licensing of third parties, along with the respective descriptions of their services, take precedence over these GTC and exclusively apply to third-party services. The Partner will receive third-party services in accordance with the service descriptions provided by the third party.

Confidentiality and Data Protection

8.1 Both parties mutually agree to keep confidential any knowledge about the products and services, as well as trade secrets they gain from each other during the execution of this contract and any knowledge that is not generally known to third parties. They will also oblige their employees accordingly.

Both parties are aware that electronic communication, such as via email, involves security risks when unencrypted. They will not make claims arising from the absence of encryption in this type of communication, unless encryption has been agreed upon beforehand.

8.2 Both parties will comply with applicable data protection regulations, particularly those in effect in Germany, and will ensure that their employees involved in the contract and its execution comply with the confidentiality requirements as specified in § 5 BDSG, unless these obligations already apply to them generally.

Partner’s Obligations to Cooperate

9.1 The Partner is obligated to support scale MSP and, within its operational sphere, create all the necessary conditions for the proper execution of the contract, such as providing the necessary operating and usage conditions for hardware and software. This includes making the necessary information available. The Partner ensures that qualified personnel are available to support scale MSP.

9.2 The Partner is obligated to report any disruptions to scale MSP in a comprehensible and detailed form within 24 hours in writing, providing all information necessary for the detection and analysis of the disruption. This includes, in particular, describing the steps leading to the occurrence of the disruption, its manifestation, and its effects. The Partner must follow any guidelines provided by scale MSP regarding error description, analysis, and reporting.

9.3 The Partner is required to ensure that the intended use of software is guaranteed through appropriate technical and organizational measures. scale MSP can demand additional compensation for its efforts based on its current price list if:

a) It takes action due to a report without a defect being present unless the Partner could not reasonably have detected the absence of a defect.

b) A reported disruption is not reproducible or is otherwise demonstrably not a defect.

c) Additional effort is incurred due to the Partner’s failure to fulfill its obligations properly.

9.4 The Partner shall inform scale MSP of any changes regarding the employees and users of the services to be provided by scale MSP, to the extent that they are relevant for the provision of services by scale MSP. The Partner shall bear the additional costs resulting from these changes.

9.5 The Partner shall ensure that the use and storage of private data, such as private data of employees, on the systems operated by scale MSP does not pose legal risks to scale MSP. To the extent that claims are made against scale MSP due to the use or storage of private data, the Partner shall indemnify scale MSP from all claims. If scale MSP incurs damages due to the Partner’s non-compliance with the above, these damages shall be compensated by the Partner.

9.6 Changes to services provided by scale MSP or to the IT infrastructure operated by scale MSP by the Partner are only permissible after prior consultation with scale MSP. If uncoordinated changes result in additional expenses for scale MSP, these expenses shall be reimbursed by the Partner according to the valid price list at the time of service provision. Damages caused by uncoordinated changes shall also be borne by the Partner. In the case of uncoordinated changes that cause disruptions in the IT infrastructure operated by scale MSP within 24 hours, it is presumed that the additional expenses, damages, and other consequences were caused by the changes. The Partner may provide evidence that the changes were not causative.

9.7 If third parties commissioned by the Partner make uncoordinated changes to services provided by scale MSP or to the IT infrastructure operated by scale MSP, scale MSP is not responsible for downtime, disruptions, and damages. The Partner shall bear the additional expenses incurred by scale MSP.

9.8 The Partner shall not use services, scripts, or similar tools that, including the embedded software, could adversely affect the data security and data flow in scale MSP’s communication network. If programs, scripts, or similar tools installed by the Partner endanger the operation of scale MSP’s communication network, that of the third-party provider, or the security and integrity of other objects/customers/services, scale MSP may, taking into account the legitimate interests of the Partner, temporarily suspend the connection of the IT system to the communication network in whole or in part with immediate effect. In this case, a notification shall be sent to the Partner. A new connection may only be established once the aforementioned complications have been resolved. scale MSP shall not be liable for any damages resulting from the suspension of the connection for this reason.

9.9 If the contractual relationship or parts of the contractual relationship come to an end, the Partner shall delete the software provided to them by scale MSP. The connection to the data center shall be terminated promptly by the Partner. The Partner has no claim to the release of data that has arisen from the use of software provided.

Assignment of Rights

10.1 The Partner may only assign or transfer rights from the contract to third parties with the prior consent of scale MSP. scale MSP is entitled to assign all obligations and rights arising from the contracts to third parties.

Final Provisions

11.1 In interpreting this contract, the following regulations apply in the order mentioned:

a) scale MSP’s offer,

b) these General Terms and Conditions,

c) the provisions of the German Civil Code (BGB) and German Commercial Code (HGB),

d) other statutory regulations.

11.2 Both parties agree to promptly inform the other party of any changes to their respective addresses.

11.3 Terminations, amendments, and supplements to the contract, as well as all legally significant declarations of the contracting parties, require written form.

11.4 In terms of all legal relationships arising from this contractual relationship, the parties agree to apply the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.

11.5 If the Partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the place of business of scale MSP is agreed upon as the exclusive place of jurisdiction for all legal disputes arising from this contractual relationship and in the course of its implementation.

11.6 Should individual provisions of these General Terms and Conditions be or become wholly or partially ineffective, this shall not affect the validity of the remaining provisions.