General Terms and Conditions (GTC) of epoq internet services GmbH (“epoq”) for the transfer of use of epoq products (Software as a Service) and the provision of services.
1. Scope of application
1.1 epoq is a manufacturer of automated software solutions for optimising customer contact processes.
1.2 Depending on the contractual agreement with the customer, epoq shall license software on specially configured servers, as Software as a Service, for a limited period of time or permanently and shall provide services on the basis of the following GTC. In the event of commissioned processing pursuant to Art. 28 EU-DSGVO, we shall be pleased to provide a proposal for an agreement which shall then apply in addition to these GTC (general information on data protection at epoq can be found here).
1.3 epoq shall not recognise any terms and conditions of the customer that conflict with or deviate from these GTC unless epoq has expressly agreed to their validity in writing.
2 Duties and obligations of the customer
2.1 Customers shall be obliged to treat all knowledge of epoq’s business processes obtained within the scope of the contractual relationship as confidential. They may not use the products supplied by epoq (Software as a Service) or services provided by epoq beyond the agreed scope or use them outside their business operations, utilise them or make them available to third parties without written approval from epoq. epoq shall similarly undertake to treat the customer’s business secrets confidentially.
2.2 If the customer culpably breaches its contractual obligations, it shall compensate epoq internally for all damages incurred by epoq as a result of claims by third parties.
3 Terms of payment
3.1 Invoice amounts shall be due within 10 days of receipt of the invoice without deduction. All prices are subject to the statutory value added tax applicable at the time.
3.2 The customer shall be in default of payment of charges if it does not make payment within 10 days of receipt of an invoice or an equivalent request for payment from epoq.
3.3 epoq shall be entitled to suspend the contractual services in the event of default in payment by the customer.
4 Duration and termination of the contractual relationship
4.1 Contracts shall be concluded for an indefinite period, but at least for a period of 12 months. A contract shall be automatically extended by a further 12 months in each case unless it is terminated in writing with three months’ notice to the end of the contract.
4.2 The contractual relationship may be terminated by either party for good cause and without notice.
4.3 Notice of termination must be given in writing.
5.1 epoq shall be liable – irrespective of the legal grounds – only in accordance with the following provisions.
5.2 epoq shall be liable for any financial losses – irrespective of the legal grounds – in the event of intentional or grossly negligent causation in accordance with the statutory provisions.
5.3 Liability shall be excluded in cases of slight negligence unless material contractual obligations, so-called cardinal obligations, have been breached. In this case, however, epoq shall only be liable for the damage typically occurring and foreseeable for the customer.
5.4 In the event of slight negligence, epoq shall not be liable for consequential and indirect damage, in particular not for loss of profit.
5.5 epoq’s liability under the Product Liability Act and other mandatory statutory provisions shall remain unaffected by the above limitations of liability.
5.6 Insofar as epoq’s liability is excluded or limited, this shall also apply to the liability of epoq’s employees, representatives and vicarious agents.
5.7 Should epoq fail to provide its services and products or services on time, the assertion of claims against epoq shall be excluded insofar as the reasons for the delay and its elimination are not within the power and influence of epoq (e.g. industrial dispute, force majeure, unavoidable influence of third parties).
5.8 epoq shall not be liable for the loss of data and/or programs insofar as the damage is due to the fact that the customer has failed to carry out regular data backups and thereby ensure that lost data can be restored with reasonable effort. Customers may not derive any claims for damages against epoq from the loss of the possibility of use during necessary maintenance work unless damage was caused by epoq intentionally or through gross negligence. epoq shall endeavour to keep maintenance-related downtimes as low as possible within the framework of the existing technical and operational possibilities.
5.9 The customer shall be obliged to report any damage within the meaning of the above liability provisions to epoq in writing without delay or to have it recorded by epoq so that epoq is informed as early as possible and, if necessary, can work with the customer to minimise the damage.
5.10 epoq shall not be liable to the customer for the commercial success of the licensed software.
All claims against epoq shall become statute-barred within one year of the other party’s knowledge of their occurrence. Liability claims arising from damage caused intentionally shall be excepted. Warranty claims shall become statute-barred within one year of delivery or acceptance of the service. A prerequisite for this is, however, that the customer has fulfilled his obligation to give notice of defects in due time and form. Obvious defects must be reported immediately after delivery, hidden defects immediately after their discovery. In the scope of application of the TKG or the TKV, their limitation provisions shall take precedence insofar as they are mandatory.
7. Final provisions
7.1 The exclusive place of jurisdiction for all disputes arising from or in connection with a contractual relationship is Karlsruhe.
7.2 There are no verbal subsidiary agreements. Amendments and supplements to the contract and these terms and conditions must be made in writing to be effective, which also includes e-mail and fax. The same applies to the waiver of this written form clause.
7.3 If any provision of the contract and/or these terms and conditions is invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties undertake to replace the invalid provision with a provision that comes as close as possible to the economic purpose and legal content of the invalid provision, taking into account the interests of both parties.