General Business Terms and Conditions

B. General regulations relating to the contractual relationship

3. Contractual offer, conclusion of contract and adjustments to contract

3.1 All presentations and other service specifications are without obligation. A contract will only be concluded if Spectos has accepted the offer of the Customer (e.g. by the conclusion of an individual contract) without reservation within 14 workdays or begins with the owed acts of fulfilment. The Customer shall waive the receipt of the acceptance declaration in the latter case.

3.2 The essential contractual regulations are to be recorded in an individual contract. If a third party (in particular distribution partners of Spectos) assisted in the conclusion of the contract, Spectos shall not recognise objections of the Customer, which the Customer derives from an additional contractual relationship with the third party.

3.3 All facts that are essential for the business relationship are to be reported to Spectos without delay, in particular changes to the corporate name, the name, the address, of the offsetting account, the disposal or obligation ability of the Customer or the persons who are entitled to represent it, as well as announced representation or disposal authorisations (in particular contacts). If the Customer culpably fails to make the notification of the change to his contractual data, it has to bear the costs for the determination of the data that are necessary to carry out the contractual relationship.

3.4 Should it be determined that the Customer has provided Spectos with deficient and/or incomplete information about the provision of the contractual services or despite its written request has not made essential information about the provision of the contractual services accessible in full or in part and additional costs are incurred by Spectos as a result of the deficient procurement of information, which were not foreseeable before the conclusion of the contract, Spectos is entitled to conduct re-negotiations with the aim of requesting an appropriate adjustment that is deemed reasonable for the customer to the remuneration and/or the service specifications. Should the contractual parties not be able to reach an agreement within a period of 14 workdays after the request for re-negotiation, Spectos is entitled to suspend the contractual services and/or to terminate the contract in full or in part for good cause.

4. Service obligations of Spectos

4.1 Spectos shall among others provide services for the Customer in the field of market and opinion research in conjunction with services of the information technology. The services to be provided by Spectos can respectively be derived from the contractual documents.

4.2 Insofar as Spectos makes free additional services available, the Customer does not have any fulfilment entitlement to their provision. Spectos will inform the Customer about the discontinuation of the free services.

4.3 Spectos will set the third party and own applications used for providing the services (in particular individual and standard software) within the scope of the technical possibilities, respectively in the newest version that is made available if this is deemed reasonable for the Customer (equivalent fulfilment of the service features). Insofar as not otherwise determined Spectos will inform the Customer before a change in version by adhering to a reasonable deadline.

4.4 Spectos is obligated to provide multi-client capable services if such a use is explicitly envisaged in the contractual documents.

4.5 The Customer is aware that the services of Spectos may contain modules or elements of free respectively Open Source Software. Insofar as possible Spectos will inform the Customer hereof following a written request.

4.6 Spectos will, insofar as recognisable, inform the Customer without delay if stipulations of the Customer are faulty, incomplete, contradictory or are objectively not executable to a significant extent or provided system components are not as per contract. Spectos is however not obligated to examine and test the stipulations and material provisions in more detail, to the extent that this is necessary for the creation of the contractual service components.

4.7 The Customer is aware that the services of Spectos may be subject to changes owing to new technical developments as well as possible statutory and/or new official regulations. Services for the Customer may therefore be adjusted by Spectos to the respective technical status of development. This shall, however, only apply to the extent that the fulfilment of the execution of the agreed services is not unreasonably impaired or rendered impossible and the adjustment is deemed reasonable for the Customer by taking all circumstances or his justified interests into consideration.

4.8 Spectos is entitled to relocate the places of service, which deviate from its location(s).

4.9 Service dates and service deadlines are only binding if they have been confirmed by Spectos in writing and the Customer has informed or made available to Spectos all information and documents that are necessary for performing the services in time, for example has paid agreed down payments, has granted permits and releases as well as carried out other necessary acts of assistance. In case of additional or extension orders placed after the conclusion of the contract (cf. among others 18.) the deadlines shall be extended accordingly. If the customer does not satisfy his obligation for notification and to provide assistance to a sufficient extent and if the execution of the contractual service obligations of Spectos are delayed hereby then the agreed deadlines shall be extended automatically by a reasonable extent, at least however by the time of the delay. The claim of Spectos for compensation (e.g. pursuant to Section 642 BGB [German Civil Code]) and the right to termination if applicable (e.g. according to Section 643 BGB [German Civil Code]) shall remain unaffected, insofar as applicable.

4.10 If assistance acts of the Customer are necessary in order to establish the readiness for service/ usability of the service owed by Spectos (for example the compilation, the maintenance and compatibility of IT systems) then these services will not be owed by Spectos. Insofar as support services are offered and the Customer would like to use these, a separate contractual agreement is to be reached.

4.11 The service availability guaranteed by Spectos is regulated in the contractual documents, in particular the STC. Excluded from this are times, in which the availability of the IT systems is not to be adhered to owing to technical or other problems, which do not lie in the scope of influence of Spectos (among others force majeure cf. 2.16, fault of third parties as well as planned maintenance work etc.).

4.12 Spectos can temporarily suspend or restrict the access to the services of the security of the IT systems, in particular if this is necessary to avoid serious interferences to the infrastructure, the interoperability of the services and/or requirements under data protection law.

4.13 Spectos will carry out necessary maintenance work on contractual services (in particular IT systems), insofar as this is possible, in times of low use. The Customer is not entitled to refuse the maintenance work, stipulated by the third party manufacturers, which are necessary or stipulated due to the application and thus resulting restrictions to the availability of the IT system or to define their time and duration. Should longer temporary service suspensions or restrictions be necessary, Spectos will inform the Customer about the type, extent and duration of the impairment 10 days in advance, insofar as this is objectively possible according to the circumstances and the notification would not be delay the remedy of already occurred interruptions.

4.14 Unforeseeable, unavoidable events, which are beyond the control of Spectos and for which it is not responsible such as force majeure according to 2.16 shall release Spectos from the obligation to provide the service for their duration. Agreed service deadlines shall be extended by the duration of the interference; the Customer will be informed of the occurrence of the interference to a reasonable extent. If the end of the interference is not foreseeable or if it lasts for longer than one month, each party is entitled to terminate the contract. This shall apply accordingly if the stated circumstances occur at a subcontractor of Spectos.

4.15 Insofar as Spectos is dependent on objects of delivery/ services in order to provide its services, which it does not provide itself and which it did not have in stock, or cannot be procured, at the time when the order was placed, Spectos is entitled to rescind the individual contract, insofar as Spectos is not supplied by its suppliers/subcontractors, is not responsible for the non-delivery or Spectos cannot procure the services despite reasonable efforts or can only procure these at substantially increased market prices (compared to the customary ones in trade). Spectos will inform the Customer about the non-availability of the services without delay and, if applicable, reimburse the Customer for already provided considerations.

4.16 If the Customer is, in connection with the use of the contractual services, the addressee of permit obligations (e.g. of a higher authority) or is obligated to submit reports towards public authorities (e.g. ministries, supervisory authorities) or other third parties, Spectos as far as possible supply all necessary information accessible to it and support the customer at its costs.

5. General obligations / responsibilities of the Customer

5.1 The Customer undertakes to pay the statutory remuneration.

5.2 The Customer assures that the data /information communicated to Spectos by it are correct and complete. It undertakes to confirm the actuality to Spectos once again – irrespective of 3.3 and 3.4 – following a corresponding enquiry, within 14 days from the receipt.

5.3 The Customer undertakes to maintain strict secrecy concerning passwords if applicable received from Spectos for the purpose of access to its services, to inform Spectos without delay as soon as it gains knowledge that unauthorised third parties have become aware of the password and to change it or have it changed by Spectos without delay if it has reason to presume that unauthorised third parties have gained knowledge hereof.
Should, as a result of the fault of the Customer, third parties use services of Spectos by the misuse of the passwords (e.g. for access data to online services), the Customer will be liable among others for the remuneration as well as thus accrued claims for damages.

5.4 The Customer guarantees that within the scope of the services by Spectos competent and qualified contacts will be available in particular for the coordination of the tasks and for queries. The Customer will guarantee by organisational measures that the respective employees delegated by it within the scope of the provision of the services are exclusively subject to his right to give instructions and disciplinary power. Instructions will exclusively be carried out within the scope of the agreed allocation of tasks.

5.5 If acts of assistance of the Customer are necessary to establish the readiness for service/ usability of the owed service, these are to be provided without delay (cf. in this respect also Points 4.8, 4.9, 9.). Spectos will inform the Customer, insofar as recognisable, about capacity misgivings, which arise in connection with the use of the technical infrastructure or IT systems of the Customer, and coordinate with the Customer, insofar as it has informed Spectos at an early stage about special service specifications/ key values (e.g. the intended use, storage volumes, management process stipulations) in writing.

5.6 The Customer will reasonably support Spectos to the necessary extent with the execution of the contractually owed services, in particular make the data, (confidential) information available that are necessary for the provision, and take the necessary measures so that Spectos can, if applicable, also access the technology of the Customer and his respective system environment/ his IT systems by Remote Access.

5.7 The Customer is responsible for ensuring that the contractual services can be provided in compliance with the applicable legal sovereign basic conditions that are relevant for its provision (e.g. stipulations under supervisory law). The Customer shall monitor the basic legal conditions that are applicable hereto and inform Spectos of each change without delay after their announcement by stating possible implications on the services in writing. The changes announced in writing and/ or newly applicable basic legal conditions or requirements that are essentially to be complied with from the contractual services Spectos will, if possible, be implemented before they come into force already according to the change management procedure (cf. 18. and 20.).

5.8 Insofar as the Customer is subject to export restrictions (in particular so-called “dual use goods”, embargoes) within the scope of the services requested by it, it is responsible for the compliance with the provisions under foreign trade law. After the recognition of breaches against such provision Spectos is not obligated to provide such contractual services.

5.9 Spectos is not obligated to monitor the information transmitted and stored by the Customer or investigate circumstances, which indicate an unlawful activity.

5.10 The Customer may not breach statutory prohibitions, the good morals and rights of third parties (trademark, name rights, copyrights, data protection rights, details in masthead, etc.) by the measures initiated by it in connection with the provision of the services by Spectos.

5.11 If the Customer breaches one or several of the obligations pursuant to 5.7 to 5.10 or a third party make such a breach appear credible, Spectos is entitled to block the provision of services without delay, for as long as the infringement of rights or the dispute with the third party lasts. The Customer is to be informed hereof – as far as possible in advance. The blocking is to be usefully restricted according to the technical possibilities and according to the occasion to certain services. It may only be upheld as long as the reason for the blocking continues to exist.
If the Customer continues the breach despite a warning or admonition and/or if a continuation of the contractual relationship is no longer deemed reasonable for Spectos, Spectos can terminate the contract for good cause. Further claims for damages shall remain unaffected hereby.

5.12 The Customer undertakes to indemnify Spectos from all claims, which are asserted owing to breaches against the aforementioned terms and conditions against Spectos.

5.13 The Customer is responsible for carrying out adequate data backups and to properly maintain and service the service environment or IT systems, insofar as this is not a part of the contractual services to be provided by Spectos. If the Customer recognises that the data backup measures of Spectos do not meet the customer requirements, it has to report this and the consequences which are recognisable to it to Spectos in writing without delay.

5.14 The services of Spectos shall not release the Customer from its obligation to comply with the customary and recognised security standards, such as e.g. the use of regularly updated anti-virus programmes, a plausibility check with incoming data, the data backup (unless Spectos has taken these services over for the Customer), upholding of a data protection organisation conform to the law as well as the regular change of passwords and a customary entrance and access control.

6. Prices and terms of payment

6.1 If the contractual parties have not agreed upon a certain price, then the price will be determined according to the price list of Spectos valid at the time when the contract is concluded or if such is not available according to the customary remuneration (within the meaning of Section 632 Para. 2 BGB [German Civil Code]) plus secondary costs (e.g. packaging, transport and transport insurance costs as well as the statutory value added tax). Cash discount will not be granted if not regulated otherwise in the individual contract.

6.2 Travelling times, travelling costs and secondary costs will be remunerated separately. Waiting times of Spectos for which the Customer is responsible will be remunerated as working hours.

6.3 Insofar as not agreed otherwise in an individual case, the following terms of payment shall apply:
Spectos will send the Customer an invoice for the provided contractual services. Services of Spectos can be issued to the Customer subsequently or in advance. Such claims are due and payable with the invoicing, unless Spectos features a payment deadline in the invoice.
If the Customer does not pay within 10 days after receipt of the invoice or not within the payment deadline shown in the invoice or if the Customer does not pay within a term of payment agreed otherwise, it will be deemed in default pursuant to Section 286 Para. 2 No. 1 or 2 BGB [German Civil Code] without a further reminder with the consequence that pursuant to Section 288 Para. 2 BGB [German Civil Code] interest on default will be owed.
If the Customer is in default with its payment obligations Spectos can charge a reminder fee for each reminder besides the flat rate pursuant to Section 288 Para. 5 BGB [German Civil Code]. Spectos reserves the right to assert a further damage due to default.

6.4 For the invoicing in case of partial services according to the contract for work and services the regulation pursuant to Section 632a Para. 1 Sentence 3 BGB [German Civil Code] (corresponding applicability of Section 641 Para. 3 BGB [German Civil Code]) is excluded.

6.5 The Customer has to file objections against the settlement of the services provided by Spectos within 20 days after receipt of the invoice in writing. After the expiry of the aforementioned deadline the settlement shall be deemed as approved by the Customer. Spectos will especially point out the significance of its behaviour to the Customer when the invoice is sent.

6.6 Incidentally, Spectos is entitled to adjust the charges a maximum of once per quarter at its reasonable discretion (pursuant to Section 315 BGB [German Civil Code], in particular with occurred cost increases of third party licensors). The price increase shall require the approval of the Customer if the increase amounts to more than 8 percentage points. The approval shall be deemed as granted if the Customer does not object to the price increase within 10 days after the receipt of the change notification. If the Customer objects to the change within the deadline, Spectos is entitled to terminate the contract. Spectos undertakes to inform the Customer with the change notification of the consequences of an omission or of the objection. An increase in the remuneration for goods and services, which are not delivered or provided within the scope of permanent obligations, will not be carried out by Spectos within four months after the conclusion of the contract.

6.7 The Customer undertakes to pay the usage fee that was incurred by the authorised or unauthorised use of the contractual services by third parties. This shall not apply if it was not responsible for the use.

7. Interferences to services and warranty

7.1 If Spectos provides the owed services deficiently then the Customer is entitled, in addition to the, if applicable, valid Service Level Agreements (SLA)/ service specifications, to assert warranty claims.

7.2 Warranted properties or guarantees (in particular regarding the condition and/or durability) are only those, which have been explicitly described as such and have been drawn up in a written form. The assurance shall apply until the expiry of the warranty period at the longest.

7.3 With the simultaneous existence of several service defects the Customer is entitled to stipulate priorities for Spectos for the remedy.

7.4 If the occurred service defects and/or qualitative interferences to services are a result of circumstances, for which Spectos is not responsible, but which stem from the scope of risks of the Customer, an obligation for remedying such defects shall cease to apply.
Possible claims shall therefore not cover faulty or insufficient instructions or assistance of the Customer as well as provided IT systems components, which the Customer or a third party changes without the consent of Spectos. This shall not apply if the Customer proves that this change is not the cause for the reported interference to services. In addition, the claims shall not cover services, which the Customer does not use in the agreed service environment or IT systems.

7.5 If the faulty condition of the service is due to the use of hardware or software, which Spectos acquired (or licensed) from third parties for the purpose of using the service, the warranty rights of the Customer will be limited to the scope of the rights to which Spectos is entitled against the third party. Spectos is, as far as possible, entitled to assign these rights to the Customer.
If the Customer procures updates, patches, bug fixes or upgrades of standard software from a third party (for example by online download via the internet or changes to the internet browser), then Spectos will not be liable for thus caused faults and defects or interferences to services. The Customer is responsible for proving that such interference is not due to an update or upgrade procured from the third party.

7.6 For the examination and/or remedy of an actually non-existing interference to services or one, which is due to circumstances, for which the Customer is responsible, Spectos can request a compensation for expenses based upon the currently valid conditions.

7.7 The regulations in 12. shall remain unaffected by the aforementioned rights.

8. Reservation of title

8.1 Spectos reserves the property to delivered objects, until all claims, to which Spectos is entitled against the Customer in connection with the contractual services (in particular delivered objects) in future, have been settled. With a current account the reserved property shall apply to secure the balance or current account claim to which Spectos is entitled.

8.2 A sale of the contractual services subject to the reservation of title, in particular their connection with objects of third parties, is only permitted for the Customer in proper business transactions. The Customer is not entitled to pledge the reserved services otherwise, to assign these as collateral or to make other disposals, which endanger the property of Spectos.

8.3 The Customer hereby now already assigns the claim from the resale to Spectos; Spectos hereby accepts this assignment. If the Customer sells the reserved services after connection or together with other goods, then the assignment of claim shall apply as only agreed in the amount of the part, which corresponds with the price agreed between Spectos and the Customer plus a security amount of 10%.

8.4 The Customer is revocably authorised to collect the claims assigned to Spectos in trust for Spectos in its own name. Spectos can revoke this authorisation as well as the entitlement to the resale, if the Customer does not satisfy its essential obligations, e.g. the payment. If the Customer does not satisfy its essential obligations, it undertakes, at the request of Spectos, to communicate the necessary data, in particular name, address, telephone number of the contractual partner and the services sold to it so that Spectos can report the assignment of the claim to the buyer and collect this itself.

8.5 In case of attachments or other impairments to the reserved property/property rights or the assigned payment claim by third parties the Customer undertakes, without delay, to point out the reservation of title and the ownership/the rights of Spectos as well as the assignment of claim. In addition, the Customer undertakes, to inform Spectos without delay by telephone and by stating the facts and to notify in writing upon request. The Customer further undertakes to inform Spectos of the name of the third party (parties), which conduct a material or claim attachment or cause other impairments so that Spectos is in the position to safeguard its legal interests towards the third party. The costs of a defence against such accesses shall be borne by the Customer.

8.6 If the realisable value of the collateral items exceeds the total claims to be secured of Spectos by more than 10%, then the Customer is entitled to request release insofar.

8.7 For the assignment of rights of use under copyright law the aforementioned regulations shall apply with the exception of the cases of permanent obligations (cf. in this respect 10.8) accordingly.

9. Obligations of the Customer to provide assistance and materials

9.1 The obligations to provide assistance and materials for which the Customer is responsible are main service obligations to be provided free of charge. Spectos shall not be deemed in default if the Customer has not satisfied these obligations as agreed as per contract. In the event of the permanent non-provision of the obligations to provide assistance and materials by the Customer Spectos is entitled, by setting a deadline, with the threat of rejection to announce the extraordinary termination of the contract or the rescission of the contract and to deem the total remuneration agreed for the residual term of the contract due immediately. In the latter named case Spectos has to have the remuneration part offset, which is saved for Spectos as an expense-related cost share as a result of the non-fulfilment of the contract by the Customer.
The Customer reserves the right to prove a lower damage amount.

9.2 The Customer can fulfil the obligations to provide assistance and materials for which it is responsible itself or to commission third parties with the fulfilment of these obligations with the consent of Spectos.

9.3 Spectos is entitled to inform the Customer of the type, scope, times and other details of the obligations to provide assistance and materials to be performed by it separately.

9.4 The Customer will make information and documents (in particular all necessary internal guidelines) available to Spectos within the scope of that which is deemed reasonable that are respectively requested by Spectos, are necessary with a reasonable consideration and are available at the Customer.

9.5 The Customer will grant those persons of Spectos and/or third parties commissioned by these, access to the premises to the extent as necessary to provide the contractual services and make other work equipment available.

10. Licence agreements, copyrights and rights of use

10.1 The Customer may use the services of Spectos for own purposes. It may only make the services available to third parties if Spectos has consented hereto in writing.

10.2 The Customer shall not acquire any property rights with a provision of (in particular individual) software or hardware through Spectos with the exception of the permanent provision (purchase contract and/ or contract for work and services). In addition to the licensing conditions and conditions of use of third parties /software manufacturers (cf. 4.3, 10.5) the following provisions shall apply.
The licence agreements with third parties can be made available to the Customer upon request.

10.3 The Customer guarantees that it possesses the right (in particular the intellectual property rights) for programmes/ confidential information, with which Spectos comes into contact within the scope of executing the contract, to carry out or have carried out editing or changes or other services to these programmes/ information.
It shall further ensure that no rights of third parties exist, which shall impede, restrict or exclude the use of the contractual services provided by Spectos as per contract.

10.4 The simple rights of use to work results, which are individually created by Spectos for the Customer, shall pass to the Customer with the full payment without reservation. Spectos shall grant the Customer – insofar as it does not concern a temporary provision according to 10.9 – revocably the simple, non-exclusive, non-transferable right to use and exploitation, that can be exercised in all hardware and software environments, as well as not limited in terms of facts and location, of all work results developed for the Customer as well as all extensions and adjustments to these work results together with the associated documentation.
The aforementioned granting of rights shall not comprise the right to use the work results for own purposes or for third parties, not to make it accessible to third parties for the editing, change (and other re-design), reproduction, publication and other distribution and exploitation of all kinds as well as not the right to assign the right of use and not to grant sub-licences limited or unlimited in time and contents.

10.5 Rights of use to software products of third parties, which are delivered within the scope of the execution of the contract by Spectos and, if applicable, are processed, will be assigned in the scope as authorised by the manufacturer. The Customer shall ensure that each person, who uses the services of Spectos and/or third parties, shall comply with these regulations as well as the licence provisions of the respective manufacturers (EULA).

10.6 Spectos is entitled to use the know-how used or acquired by it during the provision of the contractual services at its free discretion in its own interest or for the benefit of third parties, insofar as business or financial confidential information or personal data of the Customer are not used or published hereby.

10.7 The Customer may carry out data security according to the rules of technology and for this purpose to create the necessary backup copies. The Customer undertakes neither to change, nor remove copyright notices of Spectos or third parties. It is not entitled to use, copy, edit, transmit the contractual services in any other manner than described in the licence provisions, nor to convert these into another embodiment (in particular Reverse Engineering or de-compilation) or to translate these in any other manner, if such a conversion is not envisaged as essential by explicit statutory regulations. The applicability of Sections 69 d, e UrhG [German Copyright Act] shall remain unaffected hereby.

10.8 The assignment of the rights of use shall only be carried out at the time of the full payment of the owed remuneration. Until their full payment Spectos shall permit the Customer, however, to use the work results. Spectos can revoke the use of work results, with the remuneration of which the Customer is in default, for the duration of the default.

10.9 Insofar the Customer has been granted rights of use for the contractual services or the temporary right of use (no permanent provision) ends owing to the termination of the contract, the Customer has to return work results / software, possible copies as well as all written documentation and other information/ services upon request to Spectos or to delete these, insofar as the Customer is not obligated to a longer storage by law.

10.10 Spectos hat shall principally not be entitled to the use of data, Applications and/or confidential information of the Customer. Rights and obligations from this will fall under the exclusive responsibility of the Customer. The Customer shall grant Spectos however a non-exclusive right of use, not limited in location, free of licence fees, that shall comprise all types of use to data/ applications and other information, if this is necessary in order to provide the services as per contract. Spectos is moreover entitled to keep the data in reserve in a backup computer center or to remedy interferences, make changes to the structure of the data or the data format.

10.11 Insofar as Spectos charges separate licence fees, these will principally be oriented to the frequency of the use (for example number of users), the resources (for example data volumes), the duration of use or a combination of these parameters.

10.12 Spectos is entitled to have the correspondence checked of the actual use of the contractual services delivered or made available by it at the Customer (audit). The check may only be carried out by an expert who is not bound to instructions and is obligated to confidentiality towards the licensor. Spectos may only hand over information to the extent that there are breaches of licences insofar as these are necessary in order to pursue these breaches. The audit is to be announced with a period of notice of at least 2 weeks. It is to be ensured that personal data of third parties are principally not announced to the expert. The Customer will support it to a reasonable extent, i.e. in particular to provide the necessary information.

10.13 The Customer shall moreover indemnify Spectos from all claims of third parties owing to infringements pursuant to the aforementioned paragraphs in full. Further claims for damages shall remain unaffected hereby.

11. Infringement of property right/ claim for indemnification

11.1 If a third party asserts claims against the Customer owing to the infringement of an industrial property right or copyright by the use of the owed services of Spectos and if their use is impaired or forbidden hereby, the following provisions shall apply.

11.2 Spectos will at its choice and at its costs either change or replace the agreed services to the extent so that they do not infringe the property right, however essentially correspond with the agreed service in a manner that is deemed reasonable for the customer or indemnify the Customer from licence fees towards the property right holder or third parties.

11.3 The prerequisites for the liability of Spectos according to Subclause 11.2 are that the Customer informs Spectos without delay about the assertion of claims of third parties without delay, does not recognise the claimed infringement of property rights and leaves all disputes including possible out-of-court regulations to Spectos or only conducts these by mutual agreement with it. If the Customer discontinues the use for reason to minimise damages or other important reasons, it is obligated to inform the third party that the discontinuation of the use does not represent an acknowledgement of the claimed infringement of property right.

11.4 Insofar as the Customer is responsible for the infringement of property right, the entitlement of third parties is due to the fact that the service content owed by Spectos is changed without its knowledge, is processed in any other manner and was not used with services made available by Spectos, claims against Spectos shall be excluded.

11.5 Insofar as applicable mandatory liability regulations by law or 12. shall remain unaffected hereby.

12. Liability

12.1  Spectos shall be liable, no matter for what legal grounds, for damages or the reimbursement of fruitless expenses in the full amount only for damages of the Customer by wilful or grossly negligently conduct, malicious concealment of a defect, in the event of the assumption of explicit guarantees as well as warranted properties of the condition and/or durability, with damages from the injury to the life, the body or the health, for claims from product liability as well as in the event of mandatory statutory regulations.

12.2 With the negligent breach of essential contractual obligations (cardinal obligations) Spectos – will be liable irrespective of the cases stated in 12.1 – only limited to the typical damages for a contract, which are reasonably foreseeable upon conclusion of the contract. Cardinal obligations concern obligations, whose fulfilment renders the proper execution of the contract possible at all, the breach of which jeopardises the achievement of the contractual purpose and on the compliance with which the contractual partner may as a rule rely.

12.3 Deemed as foreseeable damage that is typical for the contract is fundamentally damage in the total amount of 60 per cent of the remuneration, which the Customer paid to Spectos in the last twelve (12) months before occurrence of the respective damaging event. Several damaging events, which have the same cause for the damages, shall be deemed as one damaging event (continuation context/ concurrence of offences).

12.4 Spectos shall not be liable, irrespective of the cases stated in 12.1 and 12.2 for all, for missed profit, indirect damages, consequential damages from defects and claims of third parties with the exception of claims from the infringement of property rights of third parties as well as not for occurring defects, which are associated with a change to the services of Spectos carried out by the Customer or otherwise initiated or other third party influences and which stem from the scope of risks of the Customer. The Customer is responsible for proving that occurring defects are not caused by a change to the system environment or other third party influences.

12.5 For the loss of data or programmes Spectos, will be liable irrespective of the cases stated in 12.1 and 12.2, merely up to that amount of damages, which would also have occurred with the regular data backup. The aforementioned liability limitation shall consequently apply in particular to the extent that the damages are due to the fact that the Customer failed to carry out regular data backups and to hereby ensure that lost data can be recovered with a reasonable amount of work, unless Spectos took over the data backup for the Customer.

12.6 Spectos shall merely make the contractual services available for use by the Customer and will not be liable for damages, which are suffered by the Customer by the use of these (use not as intended). In particular Spectos shall not assume any responsibility for official inspections or audits of third parties (e.g. third party software manufacturers) at the Customer.

12.7 Incidentally, the liability of Spectos for property damages and financial losses is excluded. Insofar as applicable mandatory statutory liability regulations shall remain unaffected hereby.

12.8 Insofar as the liability of Spectos is limited or excluded towards the Customer, this shall apply accordingly to legal representatives, employees, freelancers and other vicarious agents of Spectos.

13. Confidentiality, secrecy, data protection and references

13.1  Confidential information may not be disclosed by the receiving contractual party towards third parties without the prior written consent of the other contractual party, unless this is necessary owing to mandatory applicable basic legal conditions or owing to orders by a court or a supervisory authority and the receiving contractual party has informed the other contractual party without delay about the respective obligation in writing or the confidential information are made accessible to the consultants of the receiving contractual party in connection with the interpretation or execution of the contractual documents or a thus arising dispute and the consultant has previously obligated in writing to confidentiality towards the receiving contractual party or is already obligated to professional confidentiality.

Confidential information of Spectos or documents and data created by order of Spectos have to be destroyed or deleted by the Customer after termination of the contract, insofar as this is not opposed by statutory storage obligations. The Customer shall confirm to Spectos within thirty (30) calendar days after the termination of an individual contract that it has fulfilled the aforementioned obligations.

13.2 The Customer and Spectos reciprocally undertake to treat all confidential information and business secrets of the respective other contractual party, which it makes accessible owing to the initiation and fulfilment of the contract, to the respective other party, confidential for an unlimited period of time and only to use these within the scope of the agreed intended use as well as to safeguard the applicable provisions of data protection and the data security.

13.3 Confidential Information shall not be handled by the Customer by
– Unauthorised access to, unauthorised acquisition of or unauthorised copying of the information media containing the confidential information or from which the confidential information may be derived; or
– observing, examining, disassembling or testing a product or object that has been made publicly available or is in the observer’s, examiner’s, disassembler’s or tester’s possession (prohibition of decryption); and
– any other conduct that is inconsistent with good faith and fair market practice under the circumstances.

13.4 All communicated personal data (such as for example form of address, name, address, date of birth, e-mail address, telephone number, fax number, bank details) will be exclusively collected, processed or used pursuant to the applicable conditions under data protection law.

13.5 Spectos explicitly informs the Customer that the data protection cannot be comprehensively guaranteed in data transmissions in open networks, such as the internet, according to the current status of technology. The Customer knows that Spectos can view data of the Customer from a technical point of view at all times. Third parties are also under certain circumstances technically in the position to intervene in the network security without authorisation and to view the data traffic. The Customer is responsible for the security and the backup of the stored data, unless Spectos has taken over these services for the Customer.

13.6 The Customer is aware that the provision of the services can concern contract processing pursuant to the GDPR. Insofar the Customer is “Controller” and fundamentally responsible for the compliance with the regulations regarding the data protection. In this respect, Spectos points out to the Customer that signing a Data Processing Agreement might be necessary. Upon request, Spectos can assist the Customer with the conclusion of this agreement. Likewise, Spectos declares that the technical and organisational measures principally satisfy the current status of technology.

Spectos will, insofar as the statutory prerequisites are safeguarded, be authorised to represent the Customer in legal transactions in third countries within the scope of the conclusion of standard contractual clauses with relevant services providers (cf. pursuant to RESOLUTION OF THE COMMISSION of 5 February 2010 concerning standard contractual clauses for the transmission of personal data to contract processors in third countries according to the Directive 95/46/EC of the European Parliament and of the Council – ref. no. K 593 – 2010/87/EU).

13.7 If the Customer collects, processes or uses personal data it shall be responsible for ensuring that this takes place in line with the conditions under data protection law and shall in the event of a breach indemnify Spectos from claims of third parties. The Customer is aware that the collection and processing of personal data of third parties, which are survey for example within the framework of the market research or the feedback management, is permitted owing to the regulations under data protection law, as rule only with the consent of the respondents.

13.8 Complaints as well as claims for information, rectification deletion and blocking will be forwarded by Spectos to the Customer. If the Customer determines that in case of personal data stored at it is transmitted unlawfully or in any other manner third parties unlawfully gained knowledge thereof, there is a threat of serious impairments for the rights or interests of the data subjects which are worthy of protection, it has to report this without delay to the responsible supervisory authority, Spectos and the data subject.

13.9 The Customer shall grant Spectos a time-unlimited revocable right to enter the names and the corporate logo of the Customer as well as a brief description of the contractual relationships as a reference object and by safeguarding the confidentiality /the data protection in all publications (in particular brochures and internet presences) of Spectos. Spectos is moreover entitled to use anonymised/ pseudonymised user information for the creation of statistics and trend recognitions as well as for quality assurance and market research and to make these available to third parties– including advertisement customers– for demoscopic purposes.

14. Statute-of-limitations

14.1 According to the statutory regulations claims shall become statute-barred based on a wilful or grossly negligent action of Spectos, a legal representative or vicarious agent as well as claims from damages from the injury to life, the body or the health.

14.2 For all other contractual and statutory claims against Spectos the statute-of-limitations is one year.