effective as of July 25, 2022

General provisions

The following General Terms and Conditions apply to all contracts between companies, legal entities under public law or special funds under public law within the meaning of § 310 I BGB [German Civil Code] and EMC Home of Data GmbH, Elisabeth-Selbert-Str. 7, 80939 Munich, hereinafter referred to as “EMC HoD”. Insofar as the product sheets for individual products of EMC HoD or the provisions of the order forms contain more specific provisions than these General Terms and Conditions, these more specific provisions shall take precedence over the General Terms and Conditions.

If the customer uses different General Terms and Conditions, these are hereby rejected. Any terms and conditions of the customer that deviate from these terms and conditions in whole or in part shall not be recognized unless EMC HoD has expressly agreed to them in writing. These terms and conditions shall also apply exclusively if EMC provides its services without reservation in the knowledge of conflicting terms and conditions of the customer. These terms and conditions shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature.  

§1 Formation of contracts

1. The advertising of services or goods in product sheets, order forms, catalogs, or on the EMC HoD website does not constitute a legally binding offer. By ordering a specific service or item, the customer submits a binding offer. This offer is accepted by means of a separate declaration or implicitly by sending access data or other actual actions.

2. If a statement by EMC HoD is marked as an offer and signed, it is valid for a maximum of 30 days, unless a different offer period is expressly stated in the communication. Statements made by and to representatives and/or employees of EMC HoD shall only become effective upon written confirmation.

3. Insofar as EMC HoD brokers offers from its partner companies, for example cloud solutions, telecommunications services, special networks, etc., the respective partner company shall become the contractual partner. EMC HoD assumes no rights or obligations with regard to the brokered contracts. The service description provided to the customer prior to conclusion of the contract and valid at the time of conclusion of the contract shall be decisive for the nature of the agreed services.

4. The customer cannot derive any further obligations from other public representations made by EMC HoD, such as advertising or statements made by sales partners, unless these have been expressly confirmed in writing by EMC HoD. Guarantees on the part of EMC HoD are granted exclusively in writing.

§2 Duration of contract

1. Unless otherwise specified in the written contract documents, contractual relationships shall always last for one year from the start of the contract. They shall then be extended by a further 12 months unless terminated in writing by one of the contracting parties with six months' notice prior to the expiry of the contractual relationship, including any extended contractual relationships. The date of receipt by the other contracting party shall be decisive for compliance with this notice period.

2. If minimum terms are calculated in months, this means full calendar months. If, under these terms and conditions or other statements by EMC HoD, the start of the contract is determined to be a day within a calendar month, periods specified in years or months shall always be calculated from the end of that month.
   
   
3. The right of each contracting party to terminate the contract extraordinarily and without notice for good cause shall remain unaffected. Good cause shall be deemed to exist for EMC HoD in particular in any case in which

- the contractual partner is insolvent or insolvency proceedings have been opened against its assets or the application for the opening of insolvency proceedings has been rejected due to lack of assets; However, after an application for the opening of insolvency proceedings against the contractual partner's assets has been filed, EMC HoD may not terminate the contract due to a delay in payment of the remuneration that occurred in the period prior to the application for the opening of insolvency proceedings or due to a deterioration in the contractual partner's financial circumstances.

- the contractual partner breaches essential contractual obligations, in particular the contractual obligation to comply with applicable law when using the contractual services, and does not remedy this breach immediately even after receiving a warning or notification of the suspension of the contractual services by EMC HoD.

- revoke, withdraw, or otherwise revoke or fail to renew official approvals required for the operation of the equipment in the data center, in particular revoke, withdraw, or fail to renew a license required by law..

     4. In the event of termination for good cause, EMC HoD shall retain its claim to the remuneration accrued up to the date of termination and may demand an immediately due claim for lump-sum compensation in the amount of 60% of the remuneration           accrued up to the date on which the contractual partner could have terminated the contract for the first time in accordance with the terms of the contract. The contractual partner reserves the right to prove that EMC HoD has incurred lower damages.

§3 Performance deadlines

1. Performance dates shall be agreed individually and confirmed in writing by EMC HoD. Any subsequent requests for changes and/or additions by the customer shall result in a reasonable extension of the performance period.
   
   
2. The start of the performance period specified by EMC HoD is subject to the timely and proper fulfillment of the customer's obligations, in particular the provision of all necessary documents, payments, and securities. The right to invoke non-performance of the contract is reserved.
   
   
3. If the contractual partner is in default of acceptance or culpably violates other obligations to cooperate, EMC HoD shall be entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses. Further claims remain reserved.
   
   
4. Delays in performance due to force majeure or events that make performance significantly more difficult or impossible for EMC HoD, such as mobilization, war, riots, strikes, lockouts, fire, natural disasters, transport disruptions, delivery blocks, changes in legal provisions, official measures or regulations, pandemics, etc., shall extend the performance period by the duration of the hindrance. This shall apply accordingly if EMC HoD itself does not receive delivery correctly or on time, even though a congruent covering transaction has been concluded with the upstream supplier with the usual commercial diligence.
5. In the event of a business disruption caused by force majeure that is not merely temporary, EMC HoD shall be entitled to extraordinary termination or withdrawal from the contract.

§4 Self-commitment in the event of refusal to perform

Should EMC HoD be required to inform the customer that it is forced to restrict or terminate services, for example due to late payment, this shall not constitute grounds for liability on the part of EMC HoD if this is not done or only done incompletely. If services continue to be provided even after a warning of refusal to perform has been issued, the claim for remuneration shall remain valid.

§5 Ancillary contractual obligations

1. EMC HoD and the customer mutually undertake to appoint a contact person who is authorized to make decisions relevant to the contract.
   
   
2. EMC HoD and the customer undertake to remain available to each other. Both contracting parties shall compensate each other for any damage incurred as a result of one party failing to notify the other of its email address, postal address, changes in legal form, or the opening of insolvency proceedings. In this case, the scope of damages shall include any investigation costs. In particular, research by the EMC office will be charged at a flat rate of $80.00 per hour or part thereof.
   
   
3. If information is required for EMC HoD to provide its services, the customer shall provide this immediately and in sufficient detail upon request. This also applies without request to all information which the customer recognizes or should have recognized as relevant for the fulfillment of the contractual obligations, such as changes to the customer's technical equipment.
   
   
4. The customer is responsible for regularly and adequately backing up the data stored on the technical equipment covered by the contract, unless expressly agreed otherwise.
   
   
5. Insofar as the customer is granted the use of EMC HoD's equipment and devices within the scope of the contractual obligations, the customer is obliged to treat them with care and protect them from unauthorized access by third parties. Such equipment and devices may only be used for the contractually agreed purpose.
   
   
6. The customer is obliged to protect its equipment against misuse from its own area and from the Internet in accordance with the state of the art.

§6 Copyrights, patents, and licenses

1. When products are provided by EMC HoD or a third party, the customer is granted a right of use for the duration of the contract in accordance with the terms of use of EMC HoD or the third party. The same applies to the provision of products by the customer or third parties to EMC HoD. The customer undertakes to comply with these terms of use.
   
   
2. Any third-party copyrights to products provided by EMC HoD shall be recognized by the customer.
   
   
3. The transfer of any rights of use or the granting of sublicenses requires the express consent of EMC HoD, unless this is implied by the purpose of the contract itself.
   
   
4. In the event of an alleged or actual infringement of third-party rights in connection with the products provided to the customer, the customer shall indemnify EMC HoD against any recourse claims by such third parties. This shall not apply if EMC HoD is responsible for the alleged infringement.
   
   
5. The export of EMC HoD products requires the written consent of EMC HoD. The customer assures that it will comply with the applicable embargo regulations of the Federal Republic of Germany and the United States.

§7 Prices, due date, and deposit

1. Unless otherwise agreed in writing, the prices for EMC HoD's services shall be based on the fees stated on the EMC website https://www.emc.homeofdata.de at the time the contract is concluded.
   
   
2. Claims against EMC HoD may only be offset against undisputed or legally established claims.
   
   
3. EMC HoD is entitled to pass on energy price increases directly to the customer without this giving rise to a special right of termination on the part of the customer. Such price adjustments shall take effect at the earliest one month after notification.
   
   
4. All prices quoted are net prices excluding applicable value added tax.

§8 Return of items provided

1. Insofar as EMC HoD provides the customer with items for use, whether for a fee or free of charge, the customer is therefore particularly obliged to notify EMC HoD of any change in its registered office, legal form, or address.
   
   
2. Any change in the location of items provided must be notified without request. Such items must be marked separately and conspicuously as being the property of EMC HoD.

§9 Data exchange, confidentiality

1. Compliance with all relevant data protection regulations is the responsibility of the contractual partner in whose area of responsibility they fall.
   
   
2. EMC HoD is particularly committed to protecting personal data. As a matter of principle, such data will only be passed on if the person concerned has given their consent. This also applies if EMC HoD is asked for information by the police, for exampe. In such cases, the customer undertakes to contact the requesting party himself or to inform EMC HoD within a reasonable period of time that he does not wish the data to be passed on. If EMC HoD does not receive a response to its request, it is entitled to assume that the customer agrees to the disclosure of his name and address to the requesting party.
   
   
3. Each contracting party undertakes to keep confidential any data of the other contracting party that comes to its knowledge, even after termination of the contract. The parties agree to maintain confidentiality regarding all confidential information within the scope of the contract and the knowledge gained during its execution.
   
   
4. Confidential information in the above sense includes, in particular, physical and electronic information and documents as well as verbal information that is either marked as confidential or whose confidentiality is apparent from the circumstances, for example information relating to technology, research and development, clients, services, subcontractors, general financial matters, etc.
   
   
5. Information that was already known to the other party or that it has obtained from third parties, that is generally known or that the other party has expressly excluded from confidentiality in writing shall not be considered confidential information.
   
   
6. The contracting parties are also obliged to protect information and documents subject to confidentiality from access by third parties.

§10 Liability

1. EMC HoD shall only be liable for damages if EMC HoD or one of its vicarious agents has breached a material contractual obligation (cardinal obligation) or if the damage is attributable to gross negligence or intent on the part of EMC HoD or one of its vicarious agents. If the culpable breach of an essential contractual obligation (cardinal obligation) is not grossly negligent or intentional, EMC HoD's liability shall be limited to the damage that is typical for the contract and was reasonably foreseeable for EMC HoD at the time the contract was concluded. An “essential contractual obligation (cardinal obligation)” in the above sense is an obligation whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the contractual partner may regularly rely.
   
   
2. Typical, foreseeable damage is damage in the amount of the average rent paid by the contractual partner for the respective contract with EMC HoD (if the contractual relationship is shorter, the annual fee will be extrapolated).
   
   
3. EMC HoD's liability arising from a guarantee or procurement risk assumed, in the event of injury to life, limb or health, under the Product Liability Act and under other statutory provisions under which liability cannot be expressly excluded or mitigated in advance, remains unaffected.
   
   
4. No-fault liability for defects at the start of the contract in accordance with Section 536a (1) 1. Alt. BGB is excluded.
   
   
5. Within the scope of the above provisions, EMC shall only be liable for data loss to the amount of damage that would have been incurred even if the customer had carried out proper, regular data backups appropriate to the importance of the data. For clarification, it is pointed out once again that EMC HoD has no access to the data at any time.
   
   
6. Liability for interruption, disruption, or other damaging events based on telecommunications services provided by third parties is limited to the amount of recourse available to EMC HoD against the respective telecommunications service provider.

§11 Final provisions

1. Side agreements and changes to this agreement must be in writing to be legally valid. No verbal side agreements have been made.
   
   
2. If individual provisions of these Terms and Conditions are invalid, this shall not affect the validity of the remaining provisions.
   
   
3. The customer may only transfer rights and obligations arising from the contractual relationship with EMC to third parties with the prior written consent of EMC.
   
   
4. The place of jurisdiction for all disputes arising from this contractual relationship is Munich, provided that the customer is a merchant, a legal entity under public law or a special fund under public law, or the customer does not have its general place of jurisdiction in the Federal Republic of Germany.
   
   
5. The law of the Federal Republic of Germany applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods.