GENERAL TERMS AND CONDITIONS OF BUSINESS
for services of Serinus GmbH – hereinafter referred to as Serinus
1. Area of Application
These Standard Business Terms apply to all business relationships between Serinus and its customers. However, these Standard Business Terms only apply if the customer is an entrepreneur (section 14 German Civil Code – “BGB”), a legal person under public law or a special fund under public law.
2. Nature and scope of the services / Term of contract
2.1 The qualities, nature and scope of the services to be provided are set out in the respective service agreement and in relation to the eCall business SMS&FAX portal are set out in the eCall terms and conditions of use.
2.2 Unless otherwise agreed in writing, the term of contract for services of Serinus shall be twelve (12) months. The contract shall be extended by a further twelve (12) months (extension period), unless it is terminated in writing three (3) months prior to the end of the contract term or the corresponding extension period. This shall not affect the right to termination without notice and the right to termination under subsection 5.2.
3. Reporting of Disturbance and Notification of Defects
The customer shall notify in writing or in text form (e.g. email or fax) any defects and disturbances of the services and systems of Serinus immediately in detail and in an understandable manner.
4. Acts of co-operation
Acts of co-operation and supply by the Client that have been agreed or are necessary and expedient for performance of the contract, including those defined in the contract, shall be performed as essential contractual obligations of the Client. As part of its contractual ancillary obligations, Serinus shall store data for the use of services and systems when reporting emergencies for a period of 24 months from the respective report and shall supply this information to the Client in electronic format on request. There are no other mutual obligations to store and supply such data.
5. Prices / Terms of Payment
5.1 Unless otherwise agreed in a specific case, the fees to be paid by the customer for the services may be found from the price list as applicable from time to time plus statutory value added tax and other statutory taxes, if any.
5.2 Serinus reserves the right to make price adjustments for the services. In the event of price adjustment Serinus will communicate the changed prices at least two months prior to the date they become effective. In case of price increases exceeding 5% within 12 months the customer will be entitled to terminate the contract in writing with one month’s notice upon receipt of the notification of the price increase to become effective on the price increase comes into force.
5.3 During any period of default, fees will be subject to interest at the applicable statutory late payment interest rate. Serinus expressly reserves the right to assert claims for additional damage caused by delay. Serinus will impose a dunning fee of EUR 15.00 from the second dunning notice.
5.4 The customer may not set off against claims unless for undisputed claims and such recognized by declaratory judgement, and may only assert a right to deny service or to withholding based on such a claim. This is without prejudice to the customer’s corresponding rights in the case of a defect.
5.5 Objections to the invoiced amount of fees depending on the volume of use of the services shall be notified in writing within 30 days upon receipt of the invoice. Failure to raise objections in due time will be deemed approval. In its invoice Serinus will point out to the consequences of such failure to raise objections in a timely manner.
6. Use of Data
6.1 Personalized data communicated by the customer will be processed and used by Serinus exclusively for the customer and according to its instructions (commissioned data processing). Any technical and organizational procedures for the processing and use of such personalized data exceeding the foregoing will be established by the customer upon consultation with Serinus. Costs and expenses in connection with the implementation of such procedures, if any, shall be paid by the customer to Serinus on the basis of the price list as applicable from time to time.
6.2 The data protection regulations of the German Ordinance on Data Protection in the Telecommunications Industry and other applicable data protection laws and regulations will not be affected by the foregoing.
7. Defects and Disturbances
7.1 Liability for defects on the part of Serinus is primarily based on agreements made with regard to the quality of the services. In the event quality has not been agreed, applicable legal provisions shall be applied to determine whether or not there is a defect. Serinus assumes no liability for public comments made by third parties.
7.2 Serinus will immediately inspect any notified defects of its services and initiate their removal, provided that Serinus is obligated to remove defects.
7.3 The customer will be entitled to reduce payment due to defects if the customer notified – as defined in section 3 above – the specific defects which are the reason of reduction. Even in such a case reduction will only be permitted in proportion to the limitation of the options of use as a result of the notified defect.
7.4 Expenses for inspection and supplementary performance will be borne by Serinus in the event there actually is a defect. However, if it is found to be the case that there is no defect and/or that the disruption was based on factors within the customer’s scope of responsibility, Serinus may demand reimbursement from the customer for costs resulting from the unjustified request to remedy a defect (including, in particular, inspection and travel expenses) unless the lack of a defect would not have been apparent to the customer based on a reasonable amount of effort.
7.5 The limitation period for claims based on defects of quality or defects in title of the services provided by Serinus is one year from the start of the statutory limitations period. Section 548 (2) of the BGB (German Civil Code) will not be affected by the foregoing.
The liability of Serinus for all the rights and claims resulting from and in connection with the conclusion and performance of the contract on services is – irrespective of the factual or legal ground – limited as follows, the provisions in section 7 above remaining unaffected:
8.1 In case of willful or fraudulent intent, claims under the German Product Liability Law, as well as injury of life, body and health, Serinus will be liable in accordance with the legal regulations. In this context the limitations of liability below will not be applicable.
8.2 In case of gross negligence the liability of Serinus is limited to the typical damages which were foreseeable for Serinus at the time of entering into the contract. This limitation of liability will not be applicable in case of gross negligence of a legal representative or executive officer of Serinus.
8.3 In case of simple negligence Serinus will only be liable to the extent as the damages were caused in breach of material contractual obligations, such liability being limited to the typical damages foreseeable for Serinus at the time of entering into the contract. Material contractual obligations include such obligations that are essential to the proper performance of the contract and upon which the obligee has relied, and may also be expected to rely upon, and the culpable non-performance of which endangers achieving the purpose of the contract. Liability for typical, foreseeable damages is limited in amount to a maximum of EUR 500,000.00 for property damage and a maximum of EUR 500,000.00 for purely financial losses.
8.4 Serinus will be liable under a guarantee accepted by Serinus only to the extent as rights, claims and liability result from the explicit wording of the guarantee statement.
8.5 The customer’s contributory fault, if any, will be taken into account accordingly.
8.6 In the absence of any other limitation of liability expressly agreed between the customer and SERINUS, liability for typical, foreseeable damages is limited to maximum € 500,000.00. If the customer finds that the typical, foreseeable damage might exceed the above liability limits, the customer shall expressly draw the attention of Serinus to this fact. In such a case the contracting parties will agree a higher liability amount in exchange for the customer’s take-over of the costs incurred for a surplus insurance.
8.7 Where the services can only be provided subject to the provision and availability of communication routes by telecommunications services providers, Serinus will assume no responsibility for the provision and availability of the communication routes, unless such provision is denied due to the intentional or grossly negligent acting of Serinus.
8.8 Serinus will not be responsible for disturbances affecting facilities, devices and/or implements of communication which were not provided by Serinus, unless such disturbance was caused intentionally or with gross negligence by Serinus.
8.9 For claims for reimbursement of expenses and other liability claims against Serinus the provisions of this section 9 will be applicable accordingly.
9. Use by Third Parties
The customer is not allowed to make available the provided service for use by third parties unless with the consent of Serinus. The contractual relationship does not entitle the customer to make available the services to third parties.
10. Other Covenants
10.1 Collateral arrangements, supplementing provisions, modifications of and amendments to the contract on services including the specification of services require the written form to be effective. The waiver of the written form requirement must be made in writing as well.
10.2 The customer’s general terms and conditions of business will not be applicable, unless such applicability has been expressly confirmed by SERINUS in writing.
10.3 Upon expiration of the contract Serinus will be entitled to either preserve or destroy all the documentation received from the customer, unless mandatory legal regulations provide otherwise.
10.4 Any assignment of rights or transfer of obligations is subject to the prior written consent of the other contracting party. Section 354 a of the HGB (German Commercial Code) will not be affected by the above.
10.5 Venue for all disputes under and in connection with the contract on services shall be Munich if the customer is a merchant (as defined by German law) or a legal entity under public law, and provided that no other exclusive venue has jurisdiction pursuant to German law.
10.6 German law shall govern all the legal issues resulting under the services agreement and from its discharge, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.