General terms and conditions of business of q.beyond AG
1. Object of the agreement
1.1 These general terms and conditions (hereinafter “GT&C”) of business shall apply to all IT and telecommunications services that q.beyond supplies to the customer during the respective contractual term. The customer’s general terms and conditions shall not apply. They likewise shall not apply if the customer refers to their validity in an order or order confirmation and q.beyond does not explicitly oppose them again.
1.2 The contractual relationship between the parties shall be governed by the following legal provisions in the order of precedence indicated:
- q.beyond’s order confirmation
- The customer’s proposal (normally a signed order form)
- The product-specific price list
- Special product-specific terms and conditions (hereinafter “special GT&C”; if agreed)
- These GT&C
- Product-specific service level agreements (hereinafter “SLA”; if agreed)
- Product-specific descriptions of services
1.3 These GT&C shall apply to the extent that the customer is a business user, merchant, public legal entity or special organisation incorporated under public law, and shall likewise apply to all future agreements in the above sense, even if they are not explicitly included again.
1.4 q.beyond shall be entitled to amend these GT&C or special product-specific GT&C, provided this does not affect essential provisions of the contractual relationship and that it is necessary to adapt to developments that were not foreseeable at the time the agreement was concluded and which, if not taken into account, would noticeably disrupt the balance of the contractual relationship. Essential provisions are in particular those governing the type and scope of the contractually agreed services and their duration, including the provisions governing termination. These GT&C or special product-specific GT&C may also be amended and extended if and insofar as this is necessary to eliminate difficulties in the implementation of the agreement due to regulatory gaps in provisions that emerge after the conclusion of the agreement. This may in particular occur if changes to legislation or jurisprudence affect one or more clauses of these GT&C or special product-specific GT&C.
1.5 q.beyond shall be entitled to amend the product-specific service descriptions and the product-specific SLA, if there are valid reasons for doing so in order to ensure that the customer is, when entering into the agreement, not objectively disadvantaged in the light of the product-specific description of services or product-specific SLA (e.g. maintenance or improvement of functional features), and provided there is no major deviation from the original. A valid reason may also exist if the market supplies technical innovations that apply to the services concerned or if one of q.beyond’s own service providers makes changes that oblige q.beyond to modify its terms of service.
1.6 q.beyond shall be entitled to increase the agreed prices to compensate for higher, non-regulated costs. This might occur if, for example, a third party engaged by q.beyond to supply vital upstream services, in accordance with the corresponding product-specific ascription of services, increases its prices.
1.7 The customer shall be notified in writing at least weeks before amendments affecting the GT&C, special GT&C, description of services or price increases under the terms of clauses 1.4, 1.5 and 1.6 come into force. The customer shall be entitled to exercise the special right of termination when such changes come into effect. If the customer does not issue written notice of termination within six weeks of being notified of the amendment, the changes concerned shall become part of the agreement upon coming into force. The notice of amendment shall specifically remind the customer of this consequence.
2. Entry into force of the agreement
2.1 Unless otherwise stipulated in these GT&C, the agreement for the service concerned shall enter into force when a binding proposal from the customer is accepted by q.beyond by means of an order confirmation. The proposal shall be considered as accepted by q.beyond by no later than the moment in which q.beyond begins to supply the services concerned.
2.2 q.beyond is not obliged to accept a proposal. q.beyond shall in particular be entitled to make the acceptance of a proposal dependent upon the provision of a guarantee (see clause 19.1).
3. General obligations of q.beyond
3.1 q.beyond shall supply the services defined in greater detail in these GT&C and the applicable special product-specific GT&C, SLAs, descriptions of services and price lists.
3.2 q.beyond shall have the exclusive right to select the members of staff (including the customer’s contact person) engaged to deliver these services, and shall also be exclusively entitled to issue instructions to them.
3.3 Unless otherwise established in the corresponding product-specific description of services, q.beyond shall be free to select at its own discretion the resources and equipment required to deliver the contractual services.
3.4 q.beyond shall be entitled to supply partial services, provided they can be used independently.
3.5 Dates, schedules and deadlines are only binding if expressly confirmed in writing by q.beyond and if the customer fulfils its agreed obligations to cooperate in a timely manner.
The customer expressly undertakes to fulfil the following obligations to cooperate:
4.1 The customer shall guarantee q.beyond access to its premises to the extent required to deliver the contractual services. The customer shall furthermore ensure that the persons engaged by q.beyond to fulfil its contractual obligations, and whose presence on the customer’s premises is required, are supplied with the facilities and resources necessary for the provision of the contractual services.
4.2 The customer shall appoint a contact person with the level of authorisation needed to take decisions regarding provision of the agreed services.
4.3 The customer shall provide q.beyond, immediately and on demand, with all information that might be required to deliver the agreed services. If the customer has, or should know of, information that is important for the provision of services, it shall provide this information to q.beyond without being asked to do so. This applies in particular to modifications that the customer might make to its technical equipment, insofar as such changes are likely to affect the services supplied.
4.4 If q.beyond provides the customer with passwords for the purpose of accessing servers or similar equipment, this information must be kept confidential and only shared with a restricted number of people on a need-to-know basis. If q.beyond provides the customer with default passwords, the customer shall immediately (and at regular intervals thereafter) change these passwords, if and insofar as they can be changed by the customer. The customer shall immediately notify q.beyond if it becomes aware of or suspects unauthorised third-party access to passwords.
4.5 Unless it is expressly agreed that q.beyond shall be responsible for backing up data, the customer shall ensure that data are backed up regularly and in accordance with the level of risk and in any case at least once a week, to an extent that allows the data concerned to be recovered in the event of their loss. Regardless of any existing agreement regarding the backing-up of data by q.beyond, the customer shall be solely liable for ensuring the observance of filing regulations for such purposes as commercial law or tax obligations.
4.6 The customer shall immediately notify q.beyond of all and any circumstances that are likely to affect the data-centre operations or other facilities of q.beyond or of other customers.
4.7 If and to the extent that the customer engages q.beyond to save log files and/or usage reports and/or to back up and/or supply other data that can be used to draw conclusions regarding the behaviour of authorised users, the customer shall be responsible for ensuring that such actions do not infringe employees’ rights, with particular reference to participation rights (Beteiligungsrechte). Reference is hereby made to article 87, section (1), subsection 6 of the Works Constitution Act (Betriebsverfassungsgesetz).
4.8 The customer shall immediately notify q.beyond in writing of all and any changes affecting its legal form, address, telephone numbers and/or bank accounts and/or fundamental changes to its financial status (e.g. application for the opening of insolvency proceedings and/or insolvency itself). The customer shall compensate q.beyond for all and any costs arising from culpable delay in providing such information.
4.9 The special GT&C, SLAs and descriptions of service may entail further obligations to cooperate.
4.10 The customer shall fulfil its cooperation obligations to q.beyond free of charge.
4.11 These undertakings to cooperate constitute key contractual obligations on the part of the customer.
5. Items provided by the customer
5.1 If and insofar as it is agreed that the customer shall supply infrastructure, hardware and/or software for the provision of the service concerned, these items are to be delivered to q.beyond free of charge, in a timely manner and in a contractually compliant state. The customer guarantees that it is entitled to supply such items in accordance with this agreement.
5.2 The customer shall ensure that all premises on which q.beyond’s technical equipment is to be installed have adequate and suitable space for such installation, a compatible power supply, proper climate control or air-conditioning and a permanently safe and secure functioning environment with sufficient protection from fire, theft and vandalism.
5.3 The customer shall supply q.beyond, free of charge and in a timely manner, with the technical equipment and facilities required to operate and maintain the system, including suitable cable conduits, a power supply and earth (ground) connection; kept in the state of repair required for proper functioning throughout the life of the agreement. The customer shall be responsible for obtaining any permits that might be required this respect.
5.4 The customer shall, unless otherwise agreed, provide all the software licenses required for the proper provision of the contractual services.
5.5 The customer shall be responsible for obtaining the corresponding licensor’s consent for each item of software that it supplies. The provisions of clauses 16.3 and 16.4 shall in any case apply.
5.6 Clause 4.11 shall apply accordingly.
6. Usage by third parties
6.1 The customer shall not, without the prior written consent of q.beyond, supply the contractual services to any third party.
6.2 The customer shall not, without the prior written consent of q.beyond, sell on to any third party any item covered by clause 10. q.beyond shall not refuse consent if the purchase price has been paid in full by the customer and the respective manufacturer or distributor agrees to the transfer of the item(s) concerned to a third party.
7.1 The customer undertakes, unless otherwise expressly agreed, to pay the amounts resulting from application of the product-specific price list that were in force when the agreement was entered into. The agreed charges are quoted exclusive of applicable value-added tax (VAT).
7.2 One-off, monthly and usage-dependent charges shall be invoiced with the provision of the service concerned (see provisions of the applicable special GT&C) or by no later than the moment in which the contractual services are used for the first time. This provision shall also apply to partial services.
7.3 Usage-based fees that are not settled by an agreed, monthly flat-rate payment shall be calculated on the basis of q.beyond’s metering procedures and billed monthly and in arrears.
7.4 The billed amount shall become due ten (10) days after receipt of the invoice concerned.
7.5 One-off charges shall be included in the first monthly invoice.
7.6 q.beyond shall be entitled to invoice regular usage-dependent charges monthly and in advance.
7.7 If a direct-debit arrangement is agreed with the customer, the amounts billed for the services concerned shall be charged to the customer’s account no earlier than ten (10) after receipt of the corresponding invoice. q.beyond uses the SEPA direct debit system for this purpose. The customer undertakes to maintain a sufficient balance in the account concerned.
7.8 The customer undertakes to pay a fee of at least €5 in each instance to meet the processing costs of each returned direct debit, provided the chargeback is attributable to action or omission on the customer’s part. q.beyond may provide proof of higher costs, and the customer may provide proof of lower costs, in the event of such a chargeback.
7.9 If the customer cancels the direct-debit arrangement, q.beyond shall be entitled to charge an appropriate processing fee for the administrative procedure.
7.10 All fees are understood to be exclusive of withholding taxes or other taxes which might be set by a tax authority outside Germany or which correspond to any other sovereign authority and/or which corresponding legal provisions may make applicable (hereinafter collectively referred to as “withholding taxes”). The customer shall nevertheless pay the full agreed amount to q.beyond, regardless of any withholding-tax liabilities on the customer’s part. q.beyond will provide reasonable support to the customer regarding the refund of withholding tax in this respect. The customer shall indemnify and hold q.beyond harmless for any costs that might arise.
8. Life of the agreement and termination
8.1 Unless otherwise agreed, with particular reference to the customer’s proposal, the agreement shall have a minimum contractual term of twelve months. If the agreement concerned is not terminated by notice issued at least three (3) months before the end of the minimum contractual term, it shall be extended for a further twelve (12) months. If the agreement concerned is not then terminated by notice issued at least three (3) months before the end of this extended period, it shall be extended for further twelve-month periods, unless it is terminated with the same period of notice before the end of the twelve-month period concerned. The corresponding special GT&C contain provisions regarding the start of the minimum contractual period.
8.2 This shall not affect the right of any party to extraordinary termination on reasonable grounds.
8.3 q.beyond shall in particular have significant grounds for extraordinary termination, after a reasonable period of grace still fails to deliver a remedy to the situation, if
- the customer falls into arrears with payment obligations corresponding to the amount of one monthly fee, or at least €75, for more than 14 days, and fails, despite a corresponding request from q.beyond, to supply within 14 days a guarantee conforming to clause 19, or
- q.beyond has made a claim against the guarantee supplied by the customer and the customer fails to respond appropriately by renewing this guarantee within the deadline defined by q.beyond and according to q.beyond’s requirements.
8.4 q.beyond shall in particular have significant grounds for extraordinary termination, without giving a reasonable period of grace designed to deliver a remedy to the situation, if
- the customer fails in two (2) consecutive months to settle payment owed or a not inconsiderable part of such payment, or fails over a period of more than two (2) months to settle a payment equivalent to the sum total of two (2) average monthly invoices. Calculation of this average value shall be based on the average amount of the invoices received by the customer in the six (6) months immediately preceding it falling into arrears for the first time or, if it has not yet received invoices during a period of six (6) months, the average amount of the invoices issued before it fell into arrears for the first time. As an alternative to termination without notice, q.beyond may ask the customer to provide a reasonable payment guarantee as security in accordance with clause 19, or
- if the customer is insolvent or excessively indebted, or
- if insolvency proceedings affecting the customer’s assets have been rejected or abandoned due to lack of assets to cover the cost of such proceedings, or
- if the customer has instigated, whether voluntarily or involuntarily, dissolution, liquidation or winding-up proceedings.
8.5 All notice to cancel shall require written form.
8.6 If the contractual relationship is terminated prematurely by extraordinary termination and this termination arises from breach of contract on the customer’s part, the customer undertakes to pay contractual remuneration of 50% of what would have been payable by the customer up to the moment in which the contractual relationship would originally have ended. The total amount of the remuneration still to be paid shall fall due when notice of termination comes into effect. The parties shall be free to prove that q.beyond has suffered less or more loss and damage due to early termination.
9. Disruption to services
9.1 q.beyond shall remedy defects, provided they fall within its area of responsibility, in accordance with the provisions of the respective product-specific description of services and of any SLA that might be applicable. If the malfunction is not subject to an SLA or the provisions of a corresponding product-specific description of services, it will be rectified within a reasonable period.
9.2 The customer undertakes to notify q.beyond immediately of all defects or faults detected and to assist q.beyond to a reasonable extent in its efforts to deal with such malfunctions.
9.3 All maintenance and repair work on the technical equipment supplied to the customer under the terms of the contractual relationship must be carried out exclusively by q.beyond or a third party engaged by q.beyond.
9.4 If the verification of an error message reveals the absence of any faults in technical equipment supplied by q.beyond, the customer shall compensate q.beyond for the expense incurred when verifying the fault, provided it can be reasonably assumed that the customer should have been aware that the fault was not attributable to q.beyond.
9.5 If the original manufacturer or distributor of software supplied by q.beyond ceases to offer the software or support for it (end of maintenance, end of mainstream support), q.beyond shall notify the customer accordingly, including of the date on which support expires. If this occurs, the customer may order a chargeable upgrade or new release of the software concerned from q.beyond. If the customer does not accept q.beyond’s offer in this respect,
the agreed service level shall apply (see corresponding product-specific description of services or, if previously agreed, the applicable service level agreement) with the proviso that failure or malfunctioning of the software concerned shall not be taken into account once the expiry date issued by q.beyond for the service level concerned has passed. q.beyond shall only undertake to restore or repair the software concerned to the extent of its operational possibilities;
q.beyond shall notify the customer if the original manufacturer/distributor of the software has no plans to issue further updates, with particular reference to security patches or new anti-hacking measures. The customer shall then be responsible for all and any compatibility and security implications that might result in this respect.
9.6 q.beyond cannot undertake to provide complete protection of the customer’s infrastructure through the security solutions provided (virus protection, firewalls, spam filters, etc.). q.beyond uses well-known or proven software tools, which are updated regularly. q.beyond cannot however rule out situations such as one in which a new attack reaches the customer’s networks and connected components before the manufacturers of these software tools have released an update designed to detect such an attack. This is due to the time lag that naturally exists between the emergence of a new hacking method and the reaction of security-software manufacturers to it. q.beyond cannot therefore undertake to guarantee the absolute security of the infrastructure being protected.
9.7 q.beyond may at any time suspend services and/or stop transferring content provided by the customer or user, if
- this is required for the purposes of maintenance work or to conserve the quality of the services concerned (see corresponding product-specific description of services or, if previously agreed, the applicable SLA);
- this is required in order to comply with an official and/or court order;
- the customer hinders q.beyond in the fulfilment of its obligations arising from this agreement, or
- usage is clearly illegal or improper.
10. Special provisions applying to the sale of goods
If the parties agree on services that are subject to sales contract law, with particular reference to the sale of hardware or software (hereinafter “products”), the following provisions shall apply. In the case of sale of software, clauses 16.1, 16.2 and 16.4 shall also apply (16.1 with the proviso that rights of usage are granted for an unlimited period).
10.1 q.beyond shall retain legal title to the product until full settlement of the agreed purchase price. In the event of third-party intervention affecting products subject to retention of title, with particular reference to seizure or impounding, the customer shall indicate the existence of q.beyond’s legal title and notify q.beyond immediately so that it can exercise its rights in this respect. If the third party is unable to meet q.beyond’s legal or extra-judicial costs in this respect, the customer shall be liable for the same. In the case of sale of software, q.beyond shall furthermore retain the assigned rights of usage, as established in clause 16.1, until full settlement of the agreed purchase price. Usage rights shall remain provisional, and may be revoked by q.beyond, until payment of the purchase price.
10.2 If hardware was defective at the moment of transfer of risk, q.beyond may fulfil the customer’s right to claim for repair by, at q.beyond’s discretion, repairing the hardware (“rectification of defects”) or delivering defect-free hardware (“replacement”). The customer shall grant q.beyond the time and opportunity required to provide a remedy. In the event of replacement, the customer shall ensure that the defective hardware is returned to q.beyond upon delivery to the customer of the replacement hardware. If the customer already held legal title to the defective hardware before replacement took place, return of the defective hardware to q.beyond likewise transfers legal title to this defective hardware to q.beyond. With the delivery of the replacement hardware to the customer, q.beyond transfers legal title to this replacement hardware to the customer, provided the purchase price has been fully settled by this moment. If this is not the case, q.beyond shall deliver the replacement hardware subject to retention of title. Clause 10.1 shall apply accordingly in this case.
10.3 If software was defective at the moment of transfer of risk, q.beyond may fulfil the customer’s right to claim for repair by, at q.beyond’s discretion, repairing the software or delivering a new, defect-free replacement. Repairs to software may also consist of q.beyond giving the customer reasonable possibilities of applying a corresponding workaround. The customer shall grant q.beyond the time and opportunity required to provide a remedy.
10.4 Minor anomalies shall not be subject to claims for material defects.
10.5 Claims for defects shall expire twelve (12) months after the transfer of risk. This shall not affect the customer’s right to claim under the terms of clause 12 (clause 16, in the case of software).
10.6 Unless otherwise stipulated above, the customer shall be entitled to claim for defects in accordance with statutory provisions.
11. Special provisions applying to the supply of work and services
If the parties have agreed to services that are subject to the law on contracts for work and services (Werkvertragsrecht), the following provisions shall apply:
11.1 q.beyond shall only be responsible for successfully achieving a specific goal if and insofar as
- the scope and effect of the relevant criteria were specifically and definitively established when entering into the agreement, and
- the customer fulfils its obligations to cooperate in a timely and proper way, unless these have no bearing on the provision of the service concerned.
11.2 q.beyond undertakes to notify the customer in writing of confirmed readiness for acceptance. The customer shall, unless there is provision to the contrary, begin the acceptance process within five (5) working days of being notified of readiness for acceptance, and carry out the procedures concerned together with q.beyond. The work services shall be considered accepted if the customer begins to use the services supplied by q.beyond for their intended purposes or if the customer does not, within four (4) weeks of the date on which the customer received notification from q.beyond of readiness for acceptance, notify q.beyond in writing of defects corresponding to Class 1.
- Class 1 defect: use for the agreed purpose is prevented or severely restricted by, for example, malfunction, incorrect results of work or excessive response times;
- Class 2 defect: use for the agreed purpose is considerably limited, without being prevented or severely restricted, by such items as malfunction, incorrect results of work or excessive response times;
- Class 3 defect: all defects not included in classes 1 and 2 above
11.3 The definitive allocation of defects to one of the above classes shall be determined by mutual agreement between the parties. Article 640, sect. (1), subsection 2 of the German Civil Code (BGB) shall remain unaffected.
11.4 The customer shall notify q.beyond in writing of any defects that might arise. If a service was defective at the time of transfer of risk, q.beyond shall, at its own discretion, repair or replace the work concerned (“subsequent performance”). The provision of a reasonable workaround shall be regarded as adequate subsequent performance. If q.beyond fails to provide subsequent performance on two occasions, within a reasonable period of grace granted by the customer in writing, the customer may assert its claims in accordance with the corresponding legal provisions, subject to exclusion of the customer’s right to self-remedy (Selbstvornahme) within the meaning of article 637 BGB. Insignificant defects shall not entitle the customer to withdraw from the agreement, although this shall not affect the customer’s right to claim a reduction in price.
11.5 Provisions contrary to those of the contract for work and services and/or to those applying to acceptance may be present in the special terms and conditions. The rules of legal precedence established in clause 1.2 shall then apply in this respect.
If and insofar as q.beyond does not supply publicly accessible telecommunications services within the meaning of the German law governing the sector (TKG /Telekommunikationsgesetz; cf. clause 13), the liability of q.beyond shall be subject to the following provisions:
12.1 q.beyond shall be liable to an unlimited extent in the event of express written acceptance of a guarantee or procurement risk; material loss or damage due to wilful or gross negligence; or death, injury or harm to health due to wilful infringement or negligence.
12.2 This shall not affect obligations acquired under product-liability law.
12.3 q.beyond shall be liable, in the event of a slightly negligent breach of duty, only if the fulfilment of such contractual obligations enables proper implementation of the contract in the first place, if the breach of duty endangers the achievement of the object of the agreement and if the customer regularly relies on such observance (i.e. so-called “cardinal obligations”, including for example culpable infringement of the availability requirements of the corresponding SLA). q.beyond’s liability shall nevertheless be limited to loss and damage foreseeable at the moment of entering into an agreement of this type.
12.4 In the event of liability within the meaning of clause 12.3, q.beyond’s limited liability shall likewise extend to €15,000.00 per case of loss or damage. Liability shall be limited to €30,000.00 for multiple cases of loss or damage within a contractual year.
12.5 If the creation of data backups is not a service that q.beyond has expressly undertaken to provide, q.beyond’s liability for lost or damaged data and programs and their recovery shall be limited to loss and damage other than that considered reasonably preventable by the adoption of suitable precautions, with particular reference to the creation of daily backup copies of all data and programs.
12.6 Strict liability on the part of q.beyond for defects that already existed at the moment of entering into the agreement within the meaning of article 536 a BGB is hereby excluded. This shall not affect the liability provisions of clauses 12.1 to 12.5.
12.7 If and insofar as liability is excluded or limited under the terms of the above provisions, the same terms shall also apply to personal liability on the part of the staff, employees, collaborators, agents and appointed representatives of q.beyond.
13. Liability under the terms of TKG
If and insofar as q.beyond supplies publicly available telecommunications services within the meaning of the TKG law, q.beyond shall be liable to the customer, notwithstanding clause 12, for financial losses in the event of a negligent or grossly negligent breach of duty affecting the provision of such telecommunications services, depending to their extent and subject to a maximum of €12,500.00 per customer and furthermore subject to a maximum of €10 million per event resulting in loss and damage to all parties suffering such loss and damage. If the amounts corresponding to multiple customers that result from the same event caused by breach of duty in the provision of public available telecommunication services within the meaning of the TKG lead to the maximum limit being exceeded, compensation shall be reduced in relation to the total of all claims for loss and damage that exceed the maximum limit. This limitation of liability shall not apply to claims arising from delay in the payment of compensation for loss and damage.
The customer’s entitlement to claim shall expire twelve months after the date of detection of the breach, and in any case 36 months after the date on which the service concerned was supplied or the contractual infringement took place. The statutes of limitation applying to wilful and gross negligence, claims arising from wilful or negligent acts resulting in death, personal injury or harm to health, malice or wilful misrepresentation and claims under product liability law shall remain unaffected.
15. Force majeure
15.1 No party shall be liable for delivery delays or service disruptions resulting from force majeure.
15.2 Events of force majeure may in particular include strikes, legal internal labour disputes, war, terrorist attacks, civil unrest, natural disasters, fire, sabotage by third parties (e.g. denial-of-service attacks) or fault-free failure to obtain permits and approvals. The parties shall keep each other informed of any occurrence of events of force majeure.
16. Licensing rights
16.1 If and insofar as q.beyond provides the customer with software under the terms of these GT&C, the customer shall be granted, for the agreed period, usage rights in accordance with the licensing conditions of the corresponding manufacturer or distributor.
16.2 All indemnity obligations on the part of q.beyond vis-a-vis the customer shall be in accordance with the licensing conditions of the manufacturer or distributor concerned. If the customer is subject to third-party claims arising from alleged infringement of commercial or patent rights relating to software provided by q.beyond, q.beyond and/or the manufacturer or distributor concerned shall in any case reserve the right to take appropriate defensive measures, instigate settlement negotiations and take possible legal action. The customer shall only acknowledge claims asserted against it if it has q.beyond’s written permission to do so. The customer undertakes to provide reasonable support to q.beyond and/or the manufacturer or distributor in the event of legal action or settlement negotiations.
16.3 If and insofar as software is provided by the customer, the customer shall grant q.beyond all the usage rights that might be required to fulfil the object of the agreement. If third-party claims are asserted against q.beyond due to an alleged violation of commercial and patent rights in connection with software provided by the customer, the customer undertakes to indemnify and hold q.beyond harmless for such claims, unless q.beyond is responsible for violation of the law. q.beyond shall not be entitled to enter into agreements designed to settle third-party legal disputes – with particular reference to amicable agreements – without the customer’s consent. The latter shall not apply if the customer refuses to comply with a request from q.beyond to hold it harmless for third-party rights. This indemnity obligation on the part of the customer shall cover any cost, loss or damage which q.beyond might incur as a result of, or in the course of, third-party claims.
16.4 The parties undertake to notify each other in writing and without delay of all and any claims resulting from the infringement of third-party rights.
17. Non-solicitation agreement
q.beyond employees who have worked on the customer’s behalf within the framework of the agreement shall not be actively recruited by the customer until six months after their tasks are complete, unless q.beyond otherwise consents. This six-month period shall begin with the definitive termination of the activity concerned (i.e. after its full completion) or the termination of the agreement, whichever occurs later.
18. Prohibition of assignment, offsetting, right of retention
18.1 The customer shall not be entitled to assign any claim against q.beyond to a third party. Article 437 of the German Commercial Code (HGB) shall remain unaffected.
18.2 The customer may only offset claims or retain payment if and insofar as it is actually entitled to payment claims arising from material or legal defects affecting the services provided. In the event of other claims for defects, the customer may only withhold payment in proportion to the defect concerned. Clause 10.4 shall apply accordingly. The customer shall not be entitled to withhold payment if the claim for defects has expired. The customer may otherwise only offset or withhold payment in the event of undisputed or legally established claims.
19. Security guarantees
19.1 q.beyond shall be entitled to make acceptance of the customer’s proposal dependent upon the provision of a security guarantee.
19.2 If the customer fails to provide a guarantee conforming to clause 19.1, or provides a guarantee conforming to clause 19.1 which is for less than the amount stipulated in clause 19.3, q.beyond shall be entitled, after the agreement enters into effect, to demand a security guarantee from the customer if the customer falls into arrears for more than 14 days with its payment obligations. If the security guarantee is not then supplied to q.beyond within 14 days of it being requested, q.beyond shall be entitled to terminate on extraordinary grounds in accordance with clause 8.2 in conjunction with clause 8.3.
19.3 The security guarantee shall be payable on demand to q.beyond, free of further legal and contractual rights, in cash or by way of a directly enforceable, non-time-limited bank guarantee issued by a German bank and payable to q.beyond, for an amount equal to the sum total of the invoiced amounts for the four (4) months immediately preceding the first occurrence of arrears. The bank shall waive all claims within the meaning of articles 768, 770, sect. 1 and 771 BGB.
19.4 If the contractual volume increases, q.beyond reserves the right to demand an appropriate adjustment of the security guarantee.
19.5 The security guarantee shall be returned upon termination of this agreement, provided there are no outstanding claims against the customer. q.beyond shall be entitled to resort to the security guarantee if the customer falls into arrears with payments. If this occurs, the customer undertakes to replenish the security guarantee within two (2) weeks, thereby returning it to its original amount.
20. Other provisions
20.1 All claims arising from the contractual relationship with the customer shall be subject to the laws of Germany. Application of the United Nations Convention on the International Sale of Goods (CISG) is hereby excluded.
20.2 The place of jurisdiction is the German city of Cologne.
20.3 All amendments and extensions of these GT&C, special GT&C, descriptions of services, SLAs and price lists must be made in writing. This also applies to any provision changing this obligation to communicate in writing.