Terms & Conditions

These General Terms and Conditions apply to all contracts between ICT Berlin GmbH, hereinafter “ICT”, and its customers concerning deliveries of goods, software and licences, IT support, consulting, repair and setup, projects, managed services, maintenance, hosting, email services, cloud services, backup and restoration, and related services.

A customer is any natural or legal person who enters into a contract with ICT. A consumer is a natural person who acts primarily for purposes that cannot be attributed to their trade, business or self-employed professional activity. An entrepreneur is a natural or legal person or a partnership with legal capacity that, when entering into the contract, acts in the exercise of its trade, business or self-employed professional activity.

Provisions expressly stated to apply only to entrepreneurs or only to consumers apply exclusively to the respective designated customer group. Mandatory statutory consumer-protection provisions always take precedence in relation to consumers.

Any deviating terms and conditions of the customer do not apply, even if ICT does not expressly object to them. They become part of the contract only if ICT expressly agrees to their application in text form. This provision does not apply in relation to consumers to the extent that an individually negotiated agreement has been made.

Individual agreements between ICT and the customer take precedence over these Terms and Conditions.

The contractual language is German.

In the event of contradictions, the following order of precedence applies:

1. a)individually negotiated agreements and the offer accepted by ICT or the order confirmation,
2. b)the service description, service level agreement, maintenance agreement or managed service agreement,
3. c)for data-protection matters, the data processing agreement, including the technical and organisational measures,
4. d)these Terms and Conditions,
5. e)the incorporated price list, and
6. f)for the respective third-party product, the manufacturer or licence terms provided before the contract was concluded.

In its offers, ICT refers to the Terms and Conditions available at https://ict-berlin.de/agb/. By placing an order or accepting an offer, the customer agrees that they apply, provided that, before submitting its contractual declaration, the customer was given a reasonable opportunity to review them.

An offer from ICT is binding within the validity period stated in it unless it is identified as subject to change, non-binding or based on daily prices. In the case of daily prices or non-binding procurement prices, a contract is formed only once ICT has confirmed the final price and the customer has accepted it.

If the presentation of services or goods is non-binding, the customer submits a binding contractual offer by placing its order. ICT may accept this offer within five working days by sending an order confirmation by email, countersigning it, commencing the agreed service in a manner apparent to the customer, or dispatching or handing over the goods. If the customer does not receive acceptance within this period and ICT does not commence the service in a manner apparent to the customer, the customer is no longer bound by its offer.

ICT may accept an order only in respect of objectively separable parts if this is apparent to the customer and the partial service is reasonable for the customer.

Presentations on the website do not constitute binding offers unless expressly designated as such.

In consumer contracts, ICT fulfils the statutory pre-contractual information and confirmation obligations. The contract confirmation is provided on a durable medium within a reasonable period after conclusion of the contract, at the latest upon delivery of the goods or before performance of the service begins.

The type, scope, place of performance and characteristics of the service owed are determined primarily by the individual offer, the order confirmation and any agreed service description or SLA.

Time-based IT support, IT consulting, analysis, assistance and ongoing support are generally services. In this respect, ICT owes professional performance, but not any particular commercial or technical result unless a specific result has been expressly agreed.

If a specifically defined work result capable of acceptance has been agreed in the offer, the provisions on projects and acceptance also apply.

Managed services, maintenance, hosting, email, cloud and backup services are provided exclusively within the scope specified in the offer, service description or SLA. Activities not expressly specified are not owed.

For third-party services, the offer specifies whether ICT itself becomes the customer’s contractual partner, resells a third-party product in its own name, or merely brokers or procures a contract between the customer and the third-party provider on behalf of the customer.

ICT is entitled to select and replace the personnel deployed to provide the services on the basis of professional and operational considerations, provided that this does not cause unreasonable disadvantages for the customer.

Services are performed, at ICT’s discretion, remotely, at ICT’s premises, at the customer’s premises or at another agreed place of performance, unless the offer provides otherwise.

Round-the-clock support, on-call availability or services outside regular business hours are owed only if expressly agreed.

The customer provides in good time all cooperation required for performance. This includes in particular:

1. a)complete and accurate system information, documentation and error descriptions,
2. b)the necessary access credentials, administrator rights, licences and manufacturer access credentials,
3. c)a technically and organisationally available contact person with decision-making authority,
4. d)access to premises and systems and suitable maintenance windows,
5. e)timely decisions, tests, acceptances and approvals, and
6. f)suitable data backups before interventions, unless data backup has expressly been assumed by ICT.

The customer warrants that it is entitled to provide systems, data, content, access credentials, software and licences and that the instructions it issues are lawful.

The customer must treat access credentials as confidential. The customer informs ICT without undue delay of any suspected misuse, loss or unauthorised disclosure.

If required cooperation is not provided, performance deadlines are extended as appropriate. After prior notice, ICT may charge the additional effort arising as a result at the agreed rates. Statutory rights arising from default in acceptance or failure to cooperate remain unaffected.

If the customer rejects a security measure identified by ICT as necessary, ICT documents the warning and the customer’s decision. ICT is not liable for damage that would have been avoided if the expressly rejected measure had been properly implemented, provided that ICT previously informed the customer in understandable terms of the specific risk.

In the event of a substantial and continuing security risk, ICT may suspend the affected service after prior warning and expiry of a reasonable cure period. If continuation is unreasonable for ICT, ICT may terminate the affected contract for good cause. In the event of acute danger, the provision on immediate measures applies.

Performance dates are agreed individually. Dates are binding only if they have expressly been confirmed as binding.

If a customer cancels a firmly agreed appointment so late that, despite reasonable efforts, ICT cannot otherwise use the reserved time, or if the service cannot be performed for a reason for which the customer is responsible, ICT may charge the actual and demonstrable loss incurred and expenses already incurred. The customer is entitled to demonstrate that no loss or a substantially lower loss was incurred.

Additional requests and changes to the scope of services are owed only if ICT accepts them by means of a supplementary offer, order confirmation or approval by email. Unless otherwise agreed, additional services are charged on the basis of the time actually spent.

Voluntary additional services provided free of charge are provided as a gesture of goodwill and do not establish any entitlement to corresponding treatment in future cases.

Change requests may alter deadlines, effort, fixed prices, service levels and technical dependencies. ICT informs the customer of identifiable effects.

In the event of an acute danger to data, systems, networks or third parties, ICT may take necessary and proportionate immediate measures to avert damage without prior approval, including in particular isolating systems, blocking access, terminating harmful processes or temporarily disabling endangered services. ICT informs the customer without undue delay and documents the measures. If the danger is based on a circumstance for which the customer is responsible, the necessary additional effort is charged at the agreed rates.

Time-based services are charged on the basis of the working time actually incurred.

Billing increments, minimum billable periods, travel to and from the place of performance, travel flat rates, mileage costs and surcharges outside regular business hours are set out in the individual offer or the incorporated price list.

Necessary travel, shipping, accommodation and other expenses are charged only to the extent agreed or approved by the customer in advance.

ICT documents services by means of digital time recording, ticket data, service or field-service reports or comparable traceable records.

An estimate of effort is not a guarantee of a particular final price unless it is expressly designated as a binding upper limit. ICT informs the customer as soon as a material overrun becomes apparent.

If a binding cost ceiling has been agreed, ICT exceeds it only after approval by the customer. This does not apply to urgent and proportionate measures to avert an immediately impending substantial danger if the customer cannot be reached in time. ICT informs the customer without undue delay.

For projects, the result owed is conclusively determined by the detailed offer and the annexes expressly incorporated into it. Characteristics, capacities or integrations not described are not owed.

Upon completion, ICT notifies the customer that the work is ready for acceptance and, where appropriate, offers a joint functional test.

The customer may not refuse acceptance because of immaterial defects. Identified defects must be described with sufficient specificity to enable ICT to inspect and remedy them.

ICT is entitled to submit separable and independently usable partial services for partial acceptance if this is provided for in the offer or reasonable for the customer.

Extensions requested after acceptance, changed requirements and services outside the agreed result are treated as additional services.

The scope, supported systems, included activities, response times, support channels and exclusions are set out in the offer, service description or SLA.

A response time means the period until qualified processing begins. It is not a guaranteed resolution, restoration or rectification time unless the SLA expressly provides otherwise.

Response times run only during the agreed support hours. Extended support hours apply only if expressly agreed.

Priorities and response times require an accurate incident report via the agreed reporting channel. The customer provides the information needed for classification and processing.

Monitoring, patch management, updating, capacity control, security checks and proactive incident resolution are owed only to the extent that they are expressly part of the commissioned service.

Plannable maintenance work is agreed individually unless the SLA provides for a fixed maintenance window. Urgent security and incident maintenance may be performed without prior notice if postponement is not reasonably possible. ICT performs it, where possible, outside usual business hours and informs the customer without undue delay.

A specific level of availability is owed only if expressly promised in the SLA. Agreed maintenance windows and outages for which ICT is not responsible are disregarded in the calculation unless the SLA provides otherwise.

ICT may use temporary workarounds to handle incidents if they are reasonable for the customer and substantially enable the agreed use.

Service credits, lump-sum reductions or contractual penalties for an SLA deviation are owed only if expressly agreed in the SLA. The customer’s statutory rights remain unaffected.

Hosting, email, storage, database and application services are provided within the technical capacities agreed in the offer.

The customer is responsible for its content and its lawfulness. The customer ensures that websites, domains, emails, files, databases and applications do not infringe third-party rights, contain malware, are not used for spam or attacks and do not violate statutory prohibitions.

ICT is not obliged to monitor customer content generally without a specific reason. Statutory duties to inspect, provide information, preserve or remove content remain unaffected.

In the event of an acute danger, recognisably unlawful use, malware, attacks or a substantial threat to other systems, ICT may immediately block the affected content, access or services. ICT limits the measure to what is necessary and informs the customer without undue delay to the extent legally permissible.

In the case of non-urgent breaches of contract or law, the statutory rights apply. ICT may set the customer a reasonable period to remedy the breach.

Customer domains are generally registered with the customer as the domain holder. ICT handles the technical registration, DNS and name-server administration and agreed transfers.

The availability of a domain cannot be guaranteed until registration has been successfully completed. In addition, the terms of the respective registry and registrar apply, provided that they were made accessible before conclusion of the contract.

The customer provides complete and current holder information for domain registrations. The customer cooperates in good time with authentication procedures, transfers and changes of holder.

An extension or renewal of domains is owed only while the associated contract remains in force, the required cooperation is provided in good time and due fees have been paid. ICT informs the customer of identifiable obstacles to the extent that this is possible in good time.

Assistance with a provider or domain transfer after the end of the contract is charged on a time basis unless expressly included in the contract.

For email services, ICT does not owe unrestricted delivery to external recipients. Filters, blocklists, misconfigurations or acceptance decisions of third-party mail servers are outside ICT’s sole sphere of influence.

ICT assumes backup services only on the basis of an express order. Without such an agreement, the customer remains responsible for selecting, setting up, monitoring, retaining and testing suitable data backups.

The specific backup order must in particular define the systems and data to be backed up, backup intervals, retention periods, storage locations, encryption, notifications and, where applicable, restoration objectives.

Depending on the offer, the one-time setup, automated monitoring of backup runs, response to error messages, retention of offsite copies and restoration in an emergency may be owed. Components not expressly specified are not included.

Automated monitoring does not mean continuous manual supervision. Error messages are handled within the agreed support hours and response times unless round-the-clock monitoring and response have expressly been agreed.

Regular restoration tests, integrity checks or complete test restorations are owed only if expressly commissioned.

ICT performs the backup services it has assumed with professional care. An absolutely error-free backup run or the restorability of every individual data state cannot be guaranteed because of technical failures, defective source data, encryption, malware or circumstances outside ICT’s sphere of influence.

Specific restoration points, maximum data-loss periods or restoration times apply only if expressly promised in the offer or SLA.

The customer informs ICT without undue delay of changes to systems, data volumes, encryption, access credentials or protection requirements that may affect the backup order.

Restorations and emergency assignments are charged on a time basis unless expressly included in a flat fee.

The characteristics and scope of delivery of hardware are set out in the offer. Product images and general manufacturer descriptions are binding only to the extent that they have expressly become part of the agreed characteristics.

Delivery dates are binding only if ICT has expressly confirmed them as binding. Delivery periods do not begin until all information required for procurement and any agreed deposit or advance payment have been received.

Partial deliveries are permitted to the extent reasonable for the customer. The customer incurs additional shipping costs as a result only if the partial delivery is made at its request or was agreed in advance.

Delivery is subject to ICT receiving correct and timely supplies, provided that, upon or without undue delay after conclusion of the contract, ICT enters into a corresponding procurement transaction with a reliable supplier and is not supplied through no fault of its own. ICT informs the customer without undue delay. If procurement is permanently impossible, either party may withdraw from the affected part; payments already received are refunded without undue delay.

Obvious transport damage should be documented upon handover and reported to ICT promptly. Statutory rights, in particular the rights of consumers, are not restricted by a failure to report the damage.

Delivered hardware remains the property of ICT until the respective delivery has been paid for in full.

For software, cloud services and licences, the terms of use and licence terms of the respective manufacturer or provider that were supplied before conclusion of the contract also apply.

The offer specifies whether ICT resells the product in its own name, procures it in the customer’s name or merely brokers a direct contract with the third-party provider.

The customer receives only the rights of use specified in the offer and the manufacturer’s terms. The customer may not circumvent technical protection measures, licence checks or restrictions on use.

To the extent that a licence is linked to a customer or manufacturer account, the customer is responsible for the ongoing maintenance of its account data, authentication methods and authorised users.

Activation, installation, migration, configuration and manufacturer support are included only if expressly commissioned.

Assistance with manufacturer warranties and voluntary manufacturer support cases is a separate service subject to payment unless included in the offer. Statutory rights in respect of defects against ICT remain unaffected.

If a third-party provider changes or discontinues a product, ICT informs the customer without undue delay after becoming aware of this. To the extent that ICT itself is the contractual partner, ICT may replace the third-party product with a functionally equivalent alternative if this is reasonable for the customer and does not materially impair the agreed use. Otherwise, the statutory rights apply; in the case of continuing contracts, either party may terminate for good cause the part of the service that can no longer be provided.

If ICT merely brokers a contract between the customer and a third-party provider, the third-party provider is responsible for its service. ICT is liable for properly selecting the provider and brokering the contract, but not for breaches of duty by the third-party provider. If ICT itself becomes the contractual partner, ICT’s own statutory and contractual duties remain unaffected.

For repair orders, the offer or order specifies whether a paid diagnosis on a time basis, a free cost estimate or a repair up to an approved cost ceiling is owed.

If the cause of a fault cannot be identified before diagnosis, ICT does not owe a particular repair result before the customer has commissioned the repair proposed on the basis of the diagnosis.

An agreed cost ceiling is exceeded only after approval by the customer. ICT informs the customer if additional defects or necessary services become apparent during the work.

Before handing over a device, the customer ensures that a current data backup exists unless backup has expressly been commissioned. The customer removes confidential data that is not required and communicates necessary passwords by a secure means.

After completion or diagnosis, ICT requests that the customer collect the device. If no individual period has been agreed, ICT may, after 30 calendar days have expired from the request for collection and following a further notice, charge reasonable and demonstrable storage costs or the storage costs stated in the incorporated price list.

After prior notice, ICT may return an uncollected device to the most recently notified address at the customer’s expense. Realisation or disposal takes place only on the basis of a separate agreement or statutory authority.

Loan devices are provided only on the basis of an individual agreement in return for a daily or monthly flat fee. Title and all rights not expressly granted remain with ICT.

The customer treats loan devices with care and uses them only in accordance with the contract. Under the statutory rules, the customer is liable for damage caused intentionally or negligently and for loss or theft for which it is responsible. Normal wear and tear does not give rise to a duty to compensate.

Loss, theft or damage to a loan device must be reported to ICT without undue delay. At the end of the contract, loan devices must be returned in full and together with any accessories provided.

The prices in the individual offer apply. A price list applies in addition only to the extent that the offer refers to it and does not contain different amounts.

Changes in the statutory rate of value added tax are taken into account accordingly for services not yet performed to the extent permitted by law.

Cash discounts, rebates and other reductions apply only to the specifically agreed order and do not establish any entitlement for future contracts.

Invoices are payable without deduction within 15 calendar days of receipt unless a different payment term is specified in the offer or invoice.

In accordance with the offer, ICT may issue progress and partial invoices, require deposits, supply hardware or licences against advance payment and invoice ongoing services monthly.

Invoices may be transmitted electronically. The customer provides an accessible billing address and informs ICT of changes.

The statutory provisions apply to late payment, default interest, reminder costs and collection costs.

ICT may assign receivables to a factoring or financing service provider. The customer is informed of any change in the payment recipient.

After conclusion of the contract, ICT may require reasonable security or advance payment only if the statutory requirements are met, in particular if a material deterioration in the customer’s financial circumstances becomes apparent and the payment claim is at risk.

The customer may set off only with counterclaims that are undisputed, have been finally adjudicated or are ready for decision, or with counterclaims arising from the same contractual relationship. Statutory rights of consumers remain unaffected.

A right of retention may be exercised only on the basis of claims arising from the same contractual relationship. Mandatory statutory rights remain unaffected.

If the customer is in substantial arrears with a due payment, ICT may temporarily suspend the affected ongoing services after a reminder, expiry of a reasonable grace period and prior notice of suspension. The measure must be proportionate and must not extend beyond what is necessary to safeguard legitimate interests.

Suspension of a service does not release the customer from payment for services already performed. After payment in full, ICT resumes the service within a reasonable period, provided that the contract remains in force and resumption is technically possible.

The term and ordinary notice period are set out in the offer. If an indefinite continuing contract contains no provision, either party may terminate it on one month’s notice to the end of a month.

Notices of termination must be given at least in text form unless a stricter form is prescribed by law.

The right to terminate for good cause remains unaffected. Good cause for ICT may exist in particular in the event of:

1. a)substantial or repeated payment default despite a reminder and the setting of a deadline,
2. b)serious breaches of security, data protection or compliance requirements,
3. c)a continuing failure to provide necessary cooperation,
4. d)abusive or unlawful use of services, or
5. e)an unreasonable threat to systems, data, employees or third parties.

To the extent that the reason for termination can be remedied, a warning must generally be issued or a reasonable cure period set before termination for good cause. This does not apply if immediate termination is permitted by law and justified after weighing the interests involved.

At the end of the contract, ICT provides the customer with customer-owned access credentials and administrator accounts and any existing technical documentation owed under the contract. ICT’s own scripts, source code, internal tools and standard components are provided only if this has expressly been agreed.

Assistance with handover, migration or transfer to another service provider is charged on a time basis unless included in the contract.

For hosted customer data, the export and deletion period specified in the offer or service description applies. If no provision has been made, ICT keeps the data available for collection or export for 30 calendar days after the end of the contract. ICT may then delete it unless statutory retention obligations prevent this.

Data in technically rotating backup copies is overwritten in the regular backup cycle. After the end of the contract, it is no longer used productively or restored unless a statutory obligation or separate agreement applies.

Rights of use in third-party software are governed exclusively by the respective licence terms.

The scope of the rights of use in individually created scripts, automations, documentation, concepts, software adaptations and other work results is determined primarily by the offer.

In the absence of an express provision, after full payment the customer receives the non-exclusive and non-transferable right to use the work result individually created for it permanently for its own internal contractual purpose apparent at the time the contract was concluded. Mandatory statutory rights remain unaffected.

Tools, libraries, templates, methods, configuration components, standard texts, routines and general know-how that already existed or were developed independently of the customer order remain with ICT. ICT may continue to use and develop them, provided that no confidential information or personal data of the customer is disclosed in doing so.

An entitlement to the provision of source code, development environments, internal notes or documentation not owed exists only if expressly agreed.

The customer may not remove or alter copyright, licence or proprietary notices.

For performance of the contract, the customer grants ICT the necessary rights in content, data, trademarks, documentation and software provided. The rights end as soon as they are no longer required for performance of the contract, unless statutory retention obligations apply.

Both parties treat as confidential any non-public commercial, technical, organisational and other confidential information of the other party. They use such information only for performance of the contract and make it accessible only to persons who need it for this purpose.

Information is not confidential if it was demonstrably already publicly known, becomes publicly known without a breach of duty, was lawfully obtained from a third party or was independently developed.

Statutory disclosure obligations remain unaffected. To the extent legally permissible, the disclosing party informs the other party in advance.

The duty of confidentiality continues for five years after the end of the contract. For trade secrets and specially protected data, it continues for as long as statutory protection or the need for secrecy exists. A separate confidentiality agreement takes precedence.

ICT may engage suitable independent technicians, specialised IT partners, manufacturers, distributors, data-centre and cloud providers as subcontractors and remains responsible for its own contractual obligations.

Access by a subcontractor to particularly sensitive systems generally requires the customer’s prior consent. Systems containing health or patient data, employee or applicant data, financial or accounting data, professional secrets of lawyers, tax advisers or comparable holders of confidential information, and critical production or security facilities are considered particularly sensitive.

If an urgent immediate measure is required for a particularly sensitive system in order to avert a substantial danger and the customer cannot be reached in time, ICT may engage a suitable subcontractor to the extent necessary. ICT documents this and informs the customer without undue delay.

Data-protection subcontractors and approval procedures are additionally governed by the data processing agreement.

The parties comply with the applicable data-protection provisions.

Where ICT processes personal data as an independent controller, this takes place in accordance with the applicable privacy information. Where ICT processes personal data on behalf of the customer, the parties enter into a data processing agreement before processing on behalf of the customer begins.

Until a data processing agreement required by law has been concluded, ICT may postpone the affected access to personal data or systems without thereby being in default. ICT informs the customer of the requirement.

The customer is responsible for the lawfulness of the collection, use and transmission of the personal data it provides and for the permissibility of its instructions.

For data-protection matters, the data processing agreement, including the technical and organisational measures, takes precedence over these Terms and Conditions.

ICT may suspend an instruction if, on the basis of a reasoned assessment, it infringes data-protection law. ICT informs the customer without undue delay to the extent legally permissible.

Statutory information, assistance, security and notification obligations and the processes agreed in the data processing agreement remain unaffected.

The statutory limitation periods apply to claims in respect of defects. These Terms and Conditions do not shorten them for new goods, used goods, refurbished hardware or demonstration devices.

Rights in respect of defects do not exist to the extent that a disruption is due solely to circumstances for which ICT is not responsible, in particular unauthorised changes by the customer or third parties, unapproved software, missing updates outside the commissioned scope of services, unsuitable infrastructure or use contrary to documented specifications. The customer retains the right to demonstrate that the defect exists independently of these circumstances.

The customer allows ICT a reasonable inspection and opportunity for supplementary performance. Costs of self-remedy or intervention by third parties before expiry of a reasonable period for supplementary performance are reimbursed only if permitted by law or required to avert an urgent danger.

A guarantee, including in particular a guarantee of characteristics, durability, availability or data backup, exists only if ICT has expressly designated it as a guarantee.

Voluntary manufacturer guarantees exist in addition to the statutory rights in respect of defects. Assistance with their processing is owed without additional remuneration only if this has expressly been agreed.

ICT has unlimited liability for intent and gross negligence, for damage arising from injury to life, limb or health, under the German Product Liability Act, in the event of fraudulent concealment of a defect and to the extent of an expressly assumed guarantee.

In the event of ordinary negligence, ICT is liable only for breach of a material contractual duty. Material contractual duties are duties whose performance is essential for the proper performance of the contract and on whose fulfilment the customer may regularly rely. In this case, liability is limited to the damage foreseeable at the time the contract was concluded and typical for the contract.

In the event of data loss, the duty to compensate is limited to the expense that would have been required for restoration if proper data backup appropriate to the risk had been performed. This does not apply to the extent that ICT expressly assumed responsibility for the affected data backup and breached a duty arising from that backup order.

If the customer fails to perform a data backup, security measure, cooperation or timely incident report for which it is responsible, any damage contributed to as a result is taken into account in accordance with the statutory rules on contributory negligence.

If ICT merely brokers services of a third-party provider, ICT is not liable for that provider’s performance obligations. ICT is, however, liable for its own breaches of duty in selection, advice, brokerage and forwarding. If ICT itself becomes the contractual partner, ICT’s own obligations remain unaffected.

ICT is not liable for damage arising exclusively from unlawful customer content, inaccurate information, unauthorised instructions or an infringement of licence or intellectual property rights for which the customer is responsible.

The limitations of liability also apply for the benefit of ICT’s legal representatives, employees, independent contractors and vicarious agents to the extent that claims are asserted directly against them.

Mandatory claims under data-protection law and other mandatory law remain unaffected.

Neither party is liable for delays or failures caused by an event outside its sphere of influence that was not foreseeable at the time the contract was concluded and could not have been avoided even with reasonable care. Such events may include, in particular, natural events, war, terrorism, government measures, widespread energy or telecommunications outages, pandemics, industrial disputes, cyberattacks of an exceptional scale and disruptions affecting key upstream suppliers.

The affected party informs the other party without undue delay of the commencement, expected duration and effects to the extent possible. Performance periods are extended for the duration of the impediment and a reasonable restart period.

If the impediment continues for so long that the customer can no longer reasonably be expected to remain bound by the contract, after setting a reasonable additional period the customer may withdraw from or terminate the affected part of the service.

If performance becomes permanently impossible for ICT or continuation is unreasonable, ICT may also terminate the affected part of the service. Fees already paid for services not performed are refunded; services performed remain payable.

The provisions of this section apply exclusively if the customer is an entrepreneur. They take precedence over conflicting general provisions of these Terms and Conditions.

Prices are exclusive of statutory value added tax unless otherwise stated in the offer.

The entrepreneur reviews service records within five working days of receipt and reports identifiable inaccuracies in text form. If no report is made, this is deemed an indication that the record is correct. Objections based on errors that could not be identified within the period remain permissible.

For project results capable of acceptance, the entrepreneur examines the work result within a reasonable period, generally within ten working days after notification that it is ready for acceptance. If, within a reasonable period set by ICT, no acceptance takes place with at least one defect being specified, the statutory rules on deemed acceptance apply. Productive use of a substantially completed result may be deemed an indication of acceptance if a reasonable examination was previously possible.

In the case of a sale involving carriage of goods, the risk passes to the entrepreneur upon handover to the carrier, freight forwarder or other transporter. The statutory duties of inspection and notification of defects apply in relation to merchants.

Cancellation of hardware or licences that have been bindingly ordered requires ICT’s consent. ICT may refuse consent in the case of individually configured hardware, special orders, registered or activated licences and opened or unsealed software. If ICT consents, the entrepreneur reimburses the demonstrable costs already incurred that cannot be avoided. Statutory rights of withdrawal from the contract remain unaffected.

For indefinite continuing contracts, ICT may adjust the prices of its own services to reflect changes in the relevant costs occurring after conclusion of the contract, including in particular personnel, data-centre, energy, infrastructure and financing costs and statutory levies. The adjustment is limited to the calculated proportion of the cost change in the total price. Cost increases and cost reductions are taken into account and offset according to the same criteria; the profit component is not increased by the adjustment. ICT announces the change in text form at least four weeks in advance. The entrepreneur may terminate the affected contract up to the time the change takes effect.

If a third-party provider changes the purchase price of an ongoing third-party product, ICT may pass on the demonstrable increase or reduction in that purchase price to the entrepreneur to the same extent without increasing its own service or profit component. ICT informs the entrepreneur without undue delay after becoming aware of the change. The change does not take effect before the manufacturer’s change and not before ICT’s notice has been received. In the event of an increase or deterioration in service that is more than insignificant, the entrepreneur may terminate the affected ongoing part of the service up to the time the change takes effect.

For contracts for the sale of goods or hardware, ICT may initially, at its discretion, repair the item or provide a replacement, provided that the selected form of supplementary performance is reasonable for the entrepreneur and legally permissible. The statutory limitation periods remain unchanged.

If the entrepreneur culpably breaches its duties regarding the lawfulness of customer content, data, instructions, software or licences, it indemnifies ICT against justified third-party claims and the necessary and reasonable costs of legal defence. ICT informs the entrepreneur without undue delay, does not make any acknowledgement without its consent and enables it to participate in the legal defence. The indemnity does not apply to the extent that ICT contributed to causing the claim.

To the extent that ICT is liable for ordinary negligence, indirect damage, loss of profit, unrealised savings and production downtime are recoverable only if, when the contract was concluded, they were identifiable as a consequence of the breach of duty that was typical for the contract and foreseeable.

The United Nations Convention on Contracts for the International Sale of Goods is excluded. The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship is Berlin if the entrepreneur is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, and the agreement is legally permissible.

The provisions of this section apply only if the customer is a consumer. They take precedence over conflicting general provisions of these Terms and Conditions.

Before submitting its contractual declaration, the consumer receives the information required by law. After conclusion of the contract, the consumer receives a contract confirmation on a durable medium within a reasonable period, at the latest upon delivery of the goods or before performance of the service begins. In the case of digital content, the confirmation may also include the declaration concerning early commencement of performance and loss of the right of withdrawal.

Before placing their order, consumers receive in the offer the total price including value added tax and all additional shipping, delivery, travel and other costs incurred.

For deliveries of goods to consumers, the risk of accidental loss or accidental deterioration passes in accordance with the statutory provisions.

The statutory rights in respect of defects and updates apply to goods, goods with digital elements, digital products, services and work services.

ICT bears the costs of supplementary performance required because of a defect in accordance with the statutory provisions.

In the case of a distance contract concluded by email, the consumer generally has a right of withdrawal. The withdrawal instructions attached for the respective service apply.

If ICT is to begin performing a service before expiry of the withdrawal period, the consumer must expressly request this. If performance is completed, the right of withdrawal may expire only subject to the statutory requirements. If the consumer withdraws before performance is completed, the consumer may owe compensation for the performance provided up to that time.

Digital content not supplied on a tangible medium, including in particular licence keys transmitted by email or immediate activations, is provided before expiry of the withdrawal period only after express consent and confirmation of awareness of the loss of the right of withdrawal.

The right of withdrawal may be excluded in particular for goods made to customer specifications or clearly personalised. For sealed software on a tangible medium, it may expire after the seal has been removed. The statutory requirements apply.

Subject to the statutory requirements, the right of withdrawal does not exist for a contract under which the consumer has expressly requested ICT to visit the consumer in order to carry out urgent repairs or maintenance work. The exception does not cover any additional services not expressly requested or goods that are not necessarily required.

Price changes for ongoing services provided by ICT itself or for third-party products are made only on the basis of a transparent individual contractual provision, statutory authority or the consumer’s consent.

The choice of German law applies only to the extent that it does not deprive the consumer of the protection afforded by mandatory provisions of the country of the consumer’s habitual residence, provided that those provisions would apply in the absence of a choice of law.

ICT is willing to participate in dispute resolution proceedings before the Universalschlichtungsstelle des Bundes. The competent body is the Universalschlichtungsstelle des Bundes at the Zentrum für Schlichtung e. V., Straßburger Straße 8, 77694 Kehl am Rhein, https://www.verbraucher-schlichter.de/.

The provisions on inspection, notification of defects, service records, price changes and place of jurisdiction that are intended only for entrepreneurs do not apply to consumers.

German law applies, subject to the special provisions for entrepreneurs and consumers.

Should individual provisions of these Terms and Conditions be or become wholly or partially invalid, the remainder of the contract remains valid. The statutory provisions apply in place of the invalid provision. The invalid provision is not reduced in scope so as to preserve its validity.

ICT Berlin GmbH, Lübbenauer Weg 52, 12527 Berlin, Germany.

Register court: Charlottenburg Local Court. Commercial register number: HRB 221939 B.

Managing Directors: Franz Finsch and Florian Staske.

Email: [email protected].