General Terms and Conditions as of 10/25
§1 Scope of Application
(1) VAPS GmbH, Kollberg 9, 30916 Isernhagen (hereinafter “VAPS”) supplies hardware and software and other items and provides various services in the IT and telecommunications sector.
The following General Terms and Conditions apply to all business relationships between VAPS and the customer who is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.
(2) The General Terms and Conditions (hereinafter “GTC”) apply to all contracts on the basis of which telecommunications services as well as other services, usage rights, or products are provided or sold to the customer.
(3) Conflicting, supplementary, or deviating terms and conditions of the customer shall not apply unless VAPS has expressly agreed to their validity in writing. This requirement of consent applies in any case, particularly even if VAPS provides or accepts services from the customer without further reservation or objection with knowledge of conflicting or deviating conditions.
§2 Contract Content and Order of Precedence
(1) These GTC contain the general provisions applicable to each contract. Insofar as no other provisions are contained in higher-ranking regulations, the following documents generally apply in addition to these GTC in the following order of precedence: order confirmation, order, service descriptions, price lists.
(2) Individual agreements made with the customer in specific cases (including ancillary agreements, supplements, and amendments) always take precedence.
(3) The information contained in the GTC and other documents only constitutes the assumption of guarantees if this is expressly declared in writing.
§3 Conclusion of Contract
(1) Contracts are concluded, unless expressly agreed otherwise, upon receipt of an order confirmation from VAPS in text form, but at the latest upon provision of the service by VAPS.
(2) Offers from VAPS are generally subject to change unless they are expressly marked as binding.
§4 Scope of Services
(1) The type and scope of the services to be provided by VAPS are regulated, insofar as they take precedence, in the service descriptions, in the order and order confirmation, and in the individually agreed arrangements.
(2) VAPS is entitled to use third parties to provide its own services.
(3) In individual cases, VAPS also distributes products and services (hereinafter “third-party products”) from other manufacturers (hereinafter “manufacturers”) as a reseller. These third-party products are offered to customers by VAPS in its own name and on its own account.
(4) The manufacturer is entitled to provide supplementary product-specific usage and/or license terms if applicable. These may include supplementary license agreements, warranty contracts, or product-specific agreements. These then apply directly between the customer and the manufacturer.
(5) In the event of ambiguities or contradictions between the individual contract documents regarding the third-party products and the associated usage rights, the following order of precedence applies:
- Special regulations individually agreed between the customer and VAPS regarding the respective third-party products,
- product-specific usage and/or license terms of the manufacturer (including any warranty or support terms),
- the service description for the respective third-party products,
- the order confirmation,
- the order,
- these GTC.
With regard to the special usage conditions (scope of usage rights), the product-specific usage and/or license terms of the manufacturer take precedence.
§5 Dates and Deadlines
(1) Dates and deadlines for the commencement of services are only binding insofar as they have been expressly agreed between the contracting parties and confirmed in writing by VAPS.
(2) In the event of failure to fulfill or incomplete fulfillment of the customer’s cooperation obligations or in cases of force majeure, the deadlines and dates shall be postponed by a reasonable period of time.
(3) If hardware or software extensions become necessary during installation work to be performed by VAPS at the customer’s premises in accordance with the contract, which were not foreseeable for VAPS at the time of conclusion of the contract, the provision time also depends on delivery by the corresponding upstream supplier. Delays resulting from this are not attributable to VAPS.
§6 Prices and Payment Terms
(1) The customer is obligated to pay the agreed fees on time. The amount of the fees to be paid by the customer results from the agreements made with the customer in each individual case.
(2) Unless expressly stated otherwise, the fees to be paid are net fees plus the applicable value-added tax.
(3) The customer’s obligation to pay the agreed fees does not cease because the customer has used the service not personally but through third parties, unless the customer proves that the use cannot be attributed to him.
(4) The customer is obligated to report unauthorized use immediately.
(5) All fees are payable without deduction and become due, unless expressly agreed otherwise, at the latest ten days after receipt of the invoice.
(6) Unless otherwise stipulated, the agreed fee to VAPS generally becomes due upon initial provision of the (partial) service. VAPS is entitled to invoice partial services.
(7) The customer bears the costs arising from an unredeemed or returned direct debit, insofar as he is responsible for this. VAPS is entitled to demand flat-rate compensation for expenses. The customer has the right to prove that no costs or lower costs were incurred.
§7 Set-off and Retention
(1) The customer is only entitled to set off against claims by VAPS if his counterclaim is undisputed or has been legally established.
(2) The customer is only entitled to assert a right of retention insofar as his counterclaim is based on the same contract, is undisputed, or has been legally established.
§8 Payment Default/Service Disruptions
(1) The customer is in default at the latest if he does not perform within 10 days after receipt and due date of the invoice or
an equivalent payment statement.
(2) If the customer is in payment default, VAPS is entitled to demand default interest at the statutory rate. The assertion of further default damages remains reserved.
(2) VAPS is entitled to block publicly accessible telecommunications services under the conditions of the TKG.
This does not affect further statutory rights of VAPS to refuse services in the event of a service disruption.
(3) The customer remains obligated to pay the agreed fee even in the event of a justified block or service withholding.
(4) VAPS is entitled to satisfy itself from a security provided by the customer in accordance with the agreement if the customer falls into payment default. If VAPS makes use of the security, the customer is obligated to renew it immediately to the agreed amount if the contract is continued.
§9 Retention of Title
(1) Until fulfillment of all claims, including all balance claims from a current account, which VAPS is entitled to against the customer now or in the future from the business relationship, the customer grants VAPS the following securities, which we will release upon request insofar as their value exceeds the claim by more than 20% on a sustained basis.
(2) The goods remain the property of VAPS until full payment.
(3) The customer, if he is a merchant, is entitled to resell the goods subject to retention of title in the ordinary course of business. Resale to resellers is expressly not permitted. All claims arising from the resale or any other legal reason (insurance, tort) with respect to the goods subject to retention of title, including all balance claims from current accounts, are hereby assigned by the customer (entrepreneur) to VAPS in full as security. VAPS authorizes him, subject to revocation, to collect the assigned claims for the account of VAPS in his own name. The collection authorization can only be revoked if the customer is in payment default. He is then obligated to provide the names, addresses, and claim amounts of all persons to whom the goods subject to retention of title were sold by him. Pledging or transfer of ownership as security is not permitted. As long as the customer is not in payment default, VAPS will not disclose the assignment. In the event of third-party access to the goods subject to retention of title, particularly seizures, the customer (entrepreneur) will point out the ownership of VAPS and notify VAPS immediately so that VAPS can enforce its ownership rights. Insofar as the third party is not able to reimburse VAPS for the judicial or extrajudicial costs arising in this context, the customer is liable for them.
(4) In the event of conduct by the customer contrary to the contract—particularly payment default, cessation of payments, filing for insolvency—VAPS is entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the customer’s claims for surrender against third parties. The taking back as well as the seizure of the goods subject to retention of title by VAPS does not constitute withdrawal from the contract.
§10 Duties and Obligations of the Customer
(1) The customer provides VAPS with all information required for the operation and installation of the contractual services completely, on time, and truthfully. The customer must immediately notify any change, particularly of his name, company, entrepreneur status, address, billing address, bank details, legal form, as well as fundamental changes in his financial circumstances (e.g., application for opening of insolvency proceedings,
insolvency).
(2) The customer provides all necessary technical facilities required for the provision of services but not to be provided by VAPS (suitable installation rooms, electricity, and grounding) free of charge and on time and maintains them in a functional and proper condition during the contract term.
(3) If VAPS installs technical facilities in the customer’s premises, the customer grants VAPS or its agents access after prior notice, insofar as this is necessary for the provision of the service and reasonable for the customer. The same applies if deinstallation of the technical facilities is necessary after termination of the contract.
(4) The customer must protect VAPS’s technical facilities from unauthorized interference by his own employees or third parties, not make any interference himself, and notify VAPS immediately of recognizable damage or defects.
(5) The customer undertakes not to connect or use any hardware or software that does not comply with legal regulations to VAPS’s technical facilities or via them.
(6) The customer must not disclose usernames as well as passwords and access codes provided to him to third parties and must keep them secure from unauthorized access by third parties. Passwords or access codes must be changed immediately if there is reason to suspect that unauthorized persons have obtained or could have obtained knowledge of them. Passwords or access codes must be changed regularly regardless of this.
(7) The customer ensures compliance with the recognized principles of data security against all types of data loss, data damage, transmission errors, or other disruptions on his own responsibility.
(8) The customer is responsible for content that he makes accessible to third parties, even if VAPS provides the technical services for this purpose.
(9) The customer refrains from offering, retrieving, transmitting, or making available content or information:
– of an illegal or immoral nature
– that incite racial hatred according to §§ 130, 130a, 131 StGB
– that glorify or trivialize violence or war
– that instruct others to commit crimes
– that are sexually offensive or pornographic
– of a nature endangering children and young people
– that harass third parties or cause damage
(10) The customer refrains from:
– unsolicited sending of emails to third parties for advertising purposes (spamming, excessive posting)
– unauthorized intrusion into a foreign computer system (hacking)
– searching a network for open ports (port scanning)
– falsifying mail and news headers and IP addresses
– using falsified websites (phishing)
– spreading computer viruses and worms
(11) The customer ensures and guarantees that all obligations incumbent upon him are also complied with by third parties.
(12) If the customer culpably fails to fulfill his duties and obligations, he must compensate VAPS for all resulting damages, including any additional expenses. The customer indemnifies VAPS against all claims asserted by third parties against VAPS from the violation of one of these duties, unless he can prove that he is not responsible for the breach of duty causing the damage.
§11 Contract Term and Termination
(1) Unless a different agreement has been made between the contracting parties, the contract is concluded with a minimum contract term of 60 months. The contractual relationship
is extended by a further 12 months in each case, unless timely notice of termination is given by one of the parties six months before the end of the contract.
(2) The term of the contract begins on the contractually agreed date. If such a contractual agreement is missing, the term begins on the date of the initial complete activation or operational provision of all contractually agreed services.
(3) The right to extraordinary and immediate termination for good cause remains unaffected for both parties. For VAPS, good cause exists, for example, if
– the customer is in default with payment for two consecutive months or a not insignificant amount of the fees owed or in a period lasting longer than two months with an amount corresponding to the average fees owed for two months,
– the customer files an application for opening of insolvency proceedings, such proceedings are rejected or discontinued for lack of assets, or proceedings for its dissolution, liquidation, or winding up are initiated,
– the customer ceases its business activities or becomes insolvent,
– the customer culpably and in breach of duty permanently prevents the complete installation and establishment of the contractual services or significantly impedes them for more than one day,
– the customer seriously violates his duties and obligations,
– the customer otherwise behaves contrary to the contract.
(4) In the event of extraordinary termination for the aforementioned reasons, VAPS expressly reserves the right to assert claims for damages against the customer due to the premature termination.
(5) Every termination must be in writing; § 127 para. 2 BGB does not apply.
(6) If the provision of services depends on preliminary services by third parties, VAPS is entitled to terminate the contractual relationship extraordinarily if the preliminary services are not provided by the third parties or the underlying contractual relationship is terminated by the third parties. In this case, the customer is only entitled to a claim for damages against VAPS if the reason for termination was brought about by VAPS intentionally or through gross negligence.
§12 Acceptance
(1) Insofar as required within the framework of an individual contract for the provision of a work performance and not otherwise agreed, the services of VAPS are deemed accepted if the customer does not refuse acceptance in writing stating reasons within ten working days after receipt of the provision notice.
(2) VAPS may—unless otherwise agreed—provide partial deliveries and services for acceptance.
§13 Service Restrictions and Extensions
(1) VAPS is entitled to modify the services or temporarily suspend or restrict them if this is necessary due to an official measure, for reasons of public safety, to secure network operation, to maintain network integrity, to ensure interoperability of services, to secure data protection, to prevent illegal or abusive use, or for service improvements. The same applies to force majeure, without the customer being able to derive claims from this.
(2) Insofar as VAPS has concluded an availability agreement with the customer and has assumed tasks to ensure the operational safety of the customer’s systems in this context, VAPS is entitled, after appropriate notice to the customer of the urgently necessary resource expansion to
ensure the operational safety of the customer’s systems, to carry out such expansion at the customer’s expense to the necessary and required extent, unless the customer expressly objects to this notice at least in text form within 10 working days after receipt.
§14 Changes to Service Content and Prices
(1) VAPS is entitled to unilaterally change the content of the services, particularly in technical terms, insofar as the changes do not alter the contractual agreements more than insignificantly to the disadvantage of the customer. VAPS is free in the choice of technical means for providing the agreed services, particularly the technology and infrastructure used.
(2) In the event of cost increases not foreseeable at the time of conclusion of the contract, VAPS is entitled to adjust the fees for the future from the time and to the extent of the change by unilateral declaration to the customer, particularly in the event of changes in:
– costs for the services of other providers to which VAPS grants the customer access
– costs for special network access and interconnections
– fees and costs due to official or judicial decisions (e.g., Federal Network Agency)
(3) VAPS is furthermore entitled to adjust the respective prices to changing market conditions and changes in procurement costs (maximum once per quarter). In the event of price increases that significantly exceed the regular increase in the cost of living, the customer has a right of termination. VAPS will communicate this in text form in such cases.
§15 Liability
(1) Insofar as an obligation of VAPS as a provider of publicly accessible telecommunications services to compensate for financial loss to the end user exists and this is based on a non-intentional act, liability is limited to €12,500 per end user. The provisions of the TKG also apply in all other respects.
(2) Outside the scope of application of the TKG, the following applies:
- a) VAPS is only liable without limitation for intent and gross negligence.
- b) For slight negligence, VAPS is only liable if an obligation is violated whose compliance is of particular importance for achieving the purpose of the contract (so-called cardinal obligation). Liability is then limited to the typical foreseeable damage—maximum €12,500.
- c) The limitation of liability does not apply to damages to life, body, or health or to liability under the Product Liability Act, as well as in the event of assumption of a guarantee.
- d) Liability for data loss is furthermore limited to the typical recovery effort that would have occurred with regular and risk-appropriate creation of backup copies.
PART II: Special Provisions
The following provisions apply in addition to the provisions of the general part.
- 1 Telecommunications
(1) VAPS supports the customer in the transmission of data in a communication network that is connected to the Internet. The transmission of data from and to the customer takes place via a dial-in node (Point of Presence) defined by VAPS.
(2) The telecommunications connection between the customer’s location and the Point of Presence is not part of the service. If the transmission of data from the communication network to communication networks operated by other service providers on the Internet takes place, VAPS provides the data at an interface for handover and receives data from
other communication networks at its interface for transmission.
(3) The use of the services provided by VAPS on this basis regularly requires the use of terminal equipment (e.g., telephones, PCs, routers) and other infrastructure facilities. These facilities are only part of the scope of services of VAPS if this is expressly agreed. Service losses or restrictions caused by the use of the customer’s own technical facilities or terminal equipment are not attributable to VAPS.
(4) When using telecommunications services of other providers, the service obligation of VAPS is generally limited to providing the customer with access to this network. The same applies to access to offers from other providers. Such services offered by third parties do not belong to the scope of services of VAPS even if they are used on the basis of VAPS’s services. The same applies to content offered by third parties and used via VAPS’s services.
(5) For Internet-based services, VAPS undertakes to make reasonable efforts to establish the connection to the Internet. Due to limited line capacities and transmission speeds, which depend on various factors outside the sphere of influence of VAPS, trouble-free access to the Internet cannot be guaranteed.
§2 Hardware
(1) Purchase
(a) VAPS sells hardware to the customer in return for payment of a one-time fee. VAPS reserves ownership of the hardware until full payment.
(b) The customer is not entitled to transfer the hardware to third parties, pledge it, or transfer ownership as security until full payment of the purchase price.
(c) If the customer is in default of acceptance, VAPS is entitled to demand compensation for the damage incurred in this respect. In this case, the risk of accidental loss or accidental deterioration also passes to the customer.
(d) Known or occurring defects must be reported to VAPS immediately after occurrence in text form. Subsequent performance can be carried out by VAPS either by rectification or by new delivery. Subsequent performance can also be carried out by telephone, written, or electronic instructions for action. Subsequent performance is not deemed to have finally failed after the second unsuccessful rectification attempt; rather, the number of subsequent performance attempts is at VAPS’s discretion during the period set by the customer, insofar as this is reasonable.
(e) The right to withdraw and the claim for damages only exist in the case of significant defects.
(f) Claims due to defects in the products expire, unless they are claims due to injury to body, life, and health or due to intent or gross negligence, within one year after delivery.
(g) The risk passes to the customer upon delivery of the delivery items to the carrier, even if partial deliveries are made or VAPS has assumed other services, e.g., shipping and installation, or upon return after defect rectification.
(2) Purchase of Reseller Products
(a) All claims and rights of the customer against VAPS due to material and/or legal defects in the products and/or services of the manufacturer, including due to lack of usability, particularly also the rental law provisions on liability for material and legal defects, are excluded insofar as VAPS acts as a reseller according to I § 4 (3).
(b) In compensation for this, VAPS assigns to the customer the claims and rights against the manufacturer due to breach of duty, particularly also fulfillment, withdrawal, and/or
damages. The rights and claims of VAPS against the manufacturer from guarantees given for the products and/or services of the manufacturer are also assigned.
(c) The customer accepts the assignment and undertakes to assert the claims immediately and in a timely manner in his own name and with the proviso that in the event of withdrawal from the purchase contract or reduction of the purchase price, any payments from defect claims or from guarantee obligations must be made directly to VAPS.
(d) If the customer and the manufacturer do not agree on the effectiveness of a withdrawal declared by the customer, damages instead of performance, or a reduction, the customer may only refuse payment of the fee for the future due to any defects to VAPS if he has filed a lawsuit against the manufacturer for reversal, damages instead of performance, or reduction.
(e) The customer will immediately notify any defects to the manufacturer in compliance with §§ 377 HGB. VAPS must be continuously and promptly informed of the assertion of claims by sending copies of the correspondence.
(f) Delayed defect rectification by the manufacturer does not entitle the customer to reduce or suspend the fee.
(3) Rental
(a) VAPS provides the customer with hardware for use for the duration of the contract in return for payment of rent.
(b) The provision is for exclusive use by the customer. The hardware may only be used for the contractually agreed purpose.
(c) The customer is not entitled to allow a third party to use the hardware, particularly to rent or lend it.
(d) The customer must treat the hardware with care and protect it from damage.
(e) The customer will observe the maintenance and care as well as usage instructions.
(f) Immediately after termination of the contract, the customer must return the hardware to VAPS in proper condition.
§3 Other Merchandising and Other Items
(1) Technically necessary design or manufacturing changes as well as deviations from samples remain reserved, as long as this is reasonable for the customer.
(2) Partial deliveries are permissible and can be invoiced independently, insofar as this is reasonable for the customer and he has an objective interest in the partial delivery.
(3) If VAPS is in default, the customer can only withdraw from the contract after the fruitless expiry of a reasonable grace period set in writing, which must be at least 1 month, insofar as the goods have not been reported as ready for dispatch by then. In the event of partial default or partial impossibility, the customer can only withdraw from the entire contract and/or only demand damages for non-fulfillment of the entire obligation if he has no interest in partial fulfillment of the contract.
(4) If VAPS is unable to deliver the ordered goods through no fault of its own because the suppliers have not fulfilled their contractual obligations, VAPS is entitled to withdraw from the customer. However, this right to withdraw only exists if VAPS has concluded a congruent hedging transaction with the relevant supplier (binding, timely, and sufficient order of the goods) and is not otherwise responsible for the non-delivery of the goods. In such a case, VAPS will immediately inform the customer that the ordered goods are not available. Any payments already made by the customer will be refunded immediately.
(5) The risk passes to the customer as soon as VAPS has handed over the shipment to the person carrying out the transport or the goods have left our
warehouse or that of a sub-supplier for the purpose of dispatch. If dispatch is delayed at the customer’s request, the risk passes to him upon notification of readiness for dispatch. The same applies when asserting rights of retention. In this case, we are entitled to demand storage fees at a reasonable rate.
(6) The customer must report all recognizable defects after receipt of the goods, but at the latest within seven working days. Hidden defects that cannot be found even after immediate inspection may only be asserted against VAPS if the defect notification is received by VAPS within 6 months after the goods have left the delivery plant.
(7) In the event of justified complaints, VAPS is obligated to rectify or provide replacement delivery at its own discretion.
If the customer does not give VAPS the opportunity to verify the defect, particularly if he does not immediately make the complained goods or samples thereof available upon request, all warranty claims lapse.
(8) Complaints about partial deliveries do not entitle the customer to reject the remaining delivery.
These conditions also apply to the delivery of goods other than those agreed.
§4 Software
(1) Permanent Software Provision Based on a One-Time Fee
(a) VAPS provides the customer with the use of the contractually agreed client and application software in the agreed functional scope.
(b) VAPS provides the software at an agreed handover point (interface of the data network operated by VAPS to another network) for use.
(c) Unless otherwise agreed, VAPS grants the customer a non-transferable, non-exclusive, temporally unlimited right to use the software within the Federal Republic of Germany in unmodified form by wholly or partially loading, displaying, running, or storing it for personal use. The right of use applies only to the device(s) specified in the order confirmation and for the number of users specified there. If the customer intends to use the software on an upgraded device or on multiple devices, this requires the prior consent of SEG and an amendment to the contract.
(d) The customer may not sell the software, including other accompanying material, to third parties or make it available for a limited time, particularly not rent or lend it. If the customer changes hardware, he must delete the software from the previously used hardware. The use of the software within a network is—subject to other agreements—generally inadmissible if this creates the possibility of simultaneous multiple use of the program and thus increases the number of usage licenses without the consent of VAPS. In this case, the customer must prevent simultaneous multiple use through access protection mechanisms.
(e) Modification of the software is inadmissible. The reverse translation of the software into other code forms (decompilation) is only permissible within the scope of § 69e of the Copyright Act. The actions mentioned in this statutory provision may only be transferred to third parties if SEG is not willing to carry out the desired establishment of interoperability for a reasonable fee after the expiry of a reasonable consideration period.
(f) Copyright notices, serial numbers, and other features serving to identify the program may not be changed or removed.
(g) If the customer violates one of the aforementioned provisions, VAPS may terminate the right of use granted to the customer in writing with immediate effect after an unsuccessful reasonable grace period, without the license fee being refunded. The assertion of further damages remains unaffected.
(2) Temporary Software Provision
(a) Within the framework of providing Software as a Service (SaaS), VAPS enables the customer to use the functionalities of the software, provides storage space, and grants or mediates the necessary usage rights for this purpose.
(b) If no physical provision of the software to the customer takes place, the handover point is the router output of the VAPS data center.
(c) In other cases where the customer rents the software, the software is installed on the customer’s server. The handover point is then the customer’s server.
(d) VAPS is responsible for the availability of the software agreed in the contract at the handover point.
(e) The customer receives simple (non-sublicensable and non-transferable) usage rights to the software limited to the term of this contract in accordance with the following provisions.
(f) The customer may only use the software for his own business activities through his own personnel.
(g) If remuneration is agreed based on the number of users, the Customer shall use the Software only by the number of persons specified in the contract. If the Software is used by more persons than specified there, the Customer shall pay a flat-rate usage fee per person as set out in the current price list. Any further claims of VAPS in the event of quantitative overuse beyond the agreed use shall remain unaffected. If remuneration is agreed per business transaction, the agreed remuneration shall be calculated per business transaction for an agreed billing period. Any further claims of VAPS in the event of quantitative overuse beyond the agreed use shall remain unaffected.
(h) The Customer is not entitled to make any modifications to the Software. This shall not apply to modifications that are necessary to correct errors, provided that VAPS is in default with the correction of the error, refuses to remedy the error, or is unable to remedy the error due to the opening of insolvency proceedings.
(i) If VAPS provides new versions, updates, upgrades or other new deliveries relating to the Software during the term, the above rights shall also apply to these.
(j) Rights not expressly granted to the Customer above shall not be available to the Customer. In particular, the Customer is not entitled to use the Software beyond the agreed use, to have it used by third parties, or to make it accessible to third parties. In particular, it is not permitted to reproduce the Software, to sell it, or to make it available for a limited period of time, in particular not to rent it out or lend it.
(k) Upon termination of the contract, the Customer is obliged to return the original data carrier as well as the complete documentation or other documents provided to it. Proper return also includes the complete and final deletion of all existing copies (backup copies).
(l) If the customer violates the aforementioned regulations for reasons for which they are responsible, VAPS may block the customer’s access to the software if the violation can demonstrably be stopped by doing so. If the customer continues or repeatedly violates the regulations despite a corresponding written warning and is responsible for this, VAPS may terminate the contract extraordinarily without notice.
(m) For each case in which the customer culpably enables the use of the software by third parties (or by users not designated by the customer), the customer shall pay an immediately due contractual penalty in the amount of the monthly basic fee. The assertion of claims for damages remains reserved; in this case, the contractual penalty shall be offset against the claim for damages.
§5 Cloud Services
(1) The scope of services is determined exclusively by the individual agreements between the parties, which result from the order and the order confirmation and the associated service description.
This may include the following services:
(a) Data center services:
– Provision of data center space according to defined requirements
– Provision of energy according to defined requirements
– Provision of air conditioning according to defined conditions
– Provision of security measures according to defined conditions
– Facility Management
(b) Cloud Compute (concerning the cloud)
– Provision of virtual servers with different configurations and basic operating systems via access software.
– Customer-specific configuration of the virtual servers with additional software (application software) – Operation of the cloud infrastructure (physical servers, appliances, runtime environments, storage systems, network and management systems),
– Operation of the security infrastructure,
– Operation of the customer interface for access management to the cloud.
– Backup, recovery, monitoring
(c) Cloud Storage (concerning the cloud)
– Provision of storage in the cloud for the creation and storage of various files
(d) Managed Services (concerning services in the cloud)
– Setup, system configuration, backup and recovery, operation and troubleshooting of the customer’s IT systems,
– Provision and support of the customer’s IT landscape.
– Unless otherwise agreed, the license terms of the manufacturers of the respective software, databases, etc., as well as the contractual terms of the respective data center in whose server infrastructure the software provided to the customer is installed, shall apply.
(2) Technical Availability
(a) VAPS owes the availability agreed in the service description at the transfer point (router output of the VAPS data center). The contracting parties understand availability to mean the technical usability of the services and the customer’s data at the transfer point for use by the customer.
(b) All details regarding availability, in particular regarding the technical parameters and procedures for measuring and determining availability, can be found in the service description.
(3) Rights of Use
(a) The customer is entitled to use the access software and the application software during the term of this contract in accordance with the following regulations.
(b) The customer may use the access software and the application software within the scope of the execution of this contract only for their own business activities by their own personnel. This is a simple, non-transferable right of use.
(c) If VAPS provides new versions, updates, or upgrades during the term, the above regulations shall also apply to these.
(d) During the term of the contract, the customer grants VAPS those rights of use to the customer products, in particular to the customer software and other materials, which are necessary for VAPS to use the customer’s products to provide the agreed operating services.
(e) If and to the extent that during the term of this contract, in particular through the compilation of application data,
a database, databases, a database work, or database works are created through activities of the customer permitted under this contract, all rights thereto shall belong to the customer. The customer remains the owner of their data (databases or database works) even after the end of the contract.
(4) Duties and Obligations of the Customer
The customer will fulfill all duties and obligations required for the execution of the contract. In particular, they will:
(a) keep the usage and access authorizations assigned to them or the users, as well as agreed identification and authentication safeguards, secret, protect them from access by third parties, and not pass them on to unauthorized users. This data must be protected by suitable and customary measures. The customer will inform VAPS immediately if there is a suspicion that the access data and/or passwords could have become known to unauthorized persons;
(b) comply with the restrictions/obligations regarding the rights of use, in particular:
not retrieve or allow information or data to be retrieved without authorization, or interfere or allow interference with programs operated by VAPS, or penetrate or promote such penetration into VAPS data networks without authorization;
not misuse the exchange of electronic messages possible within the scope of the contractual relationship and/or using the application software for the unsolicited sending of messages and information to third parties for advertising purposes;
obligate the authorized users to comply with the provisions of this contract applicable to them;
ensure that they respect all third-party rights to material used by them (e.g., when transmitting third-party texts/data in the cloud);
obtain the necessary consent required under data protection law from the respective data subject, insofar as they collect, process, or use personal data when using the application software and no statutory permission applies;
check data and information for viruses before sending them to the provider and use state-of-the-art virus protection programs;
if they transmit data for the generation of data and content with the help of the application software, back these up regularly and in accordance with the importance of the data and create their own backup copies to enable the reconstruction of the same in the event of loss of data and information;
not attempt to explore or scan the vulnerability of an IT system;
not bypass security, access protection, or authentication measures;
not intercept and examine data traffic to and from an IT system without permission;
not forge or manipulate network packets;
not monitor or crawl any system that impairs or disrupts the system subject to the monitoring or crawling function;
not use the access software and the application software for racist, discriminatory, pornographic, youth-endangering, politically extreme, or otherwise illegal purposes or purposes that violate official regulations or requirements, or create corresponding data, in particular application data,
and/or store it in the cloud;
not create and/or store in the cloud any offensive content that is defamatory, obscene, insulting, invasive of privacy, or otherwise objectionable, including content related to criminal offenses;
not use any activities, content, or other computer technologies that damage, disrupt, or secretly intercept a system, program, or data, including viruses, Trojan horses, worms, and bots;
not use or generate any activities and content that violate intellectual property rights or other proprietary rights, copyrights, or other protective rights of third parties:
(4) Blocking Access to the Cloud
(a) If the customer violates the above regulations for reasons for which they are responsible, VAPS may block the customer’s access to the application software if the violation can demonstrably be stopped by doing so.
(b) If the customer continues or repeatedly violates the above regulations despite a corresponding written warning from VAPS and is responsible for this, VAPS may terminate the contract extraordinarily without notice.
(c) For each case in which the customer culpably enables the use of the application software by third parties (or by users not designated by the customer), the customer shall pay an immediately due contractual penalty in the amount of the agreed monthly basic fee. The assertion of claims for damages remains reserved; in this case, the contractual penalty shall be offset against the claim for damages. The customer is permitted to prove that VAPS has suffered no or less damage.
(5) Data Security, Data Protection
(a) The contracting parties will comply with the respectively applicable data protection regulations, in particular those valid in Germany and Europe, and will obligate their employees involved in connection with the contract and its execution to data secrecy in accordance with § 52 BDSG, insofar as they are not already generally obligated accordingly.
(b) If the customer collects, processes, or uses personal data, they guarantee that they are entitled to do so under the applicable regulations, in particular data protection regulations, and shall indemnify VAPS against third-party claims in the event of a violation.
(c) VAPS will only collect and use customer-related data to the extent required for the execution of this contract. The customer agrees to the collection and use of such data to this extent.
(d) These aforementioned obligations exist as long as data and content are within the sphere of influence of VAPS, even beyond the end of the contract.
(e) The contracting parties shall conclude an agreement on commissioned data processing in accordance with Art. 28 GDPR. In the event of contradictions between the GTC and the agreement on commissioned processing, the latter shall take precedence over the former.
(6) Distribution of Responsibility and Liability
(a) VAPS operates, manages, and monitors the components from the host operating system layer and the virtualization level up to the physical protection of the facilities, the technical building equipment, and the data center of the building itself in which the cloud services are operated, or has these monitored by subcontractors. However, VAPS generally does not know the data in the cloud services used by customers, the configurations of the customer systems, or their status in the cloud, unless this is agreed between the parties. Therefore, VAPS does not influence the data and information of customers unless this is expressly agreed.
(b) In principle, the customer is therefore responsible for the management of their
databases, the data in the systems, and in the cloud.
(c) The customer is responsible for compliance with these contractual regulations as well as any license terms of the respective manufacturers of the software used. They may only use these to the extent agreed with VAPS or the respective manufacturer.
(d) The customer is responsible for the software they employ and use. The customer warrants that they hold sufficient rights of use for this software for the purpose they use it for.
(e) The customer is liable for a violation of the obligations set out under (b) to (e) in accordance with the statutory provisions.
(e) The strict liability of VAPS according to § 536 para. 1 BGB is excluded.
(f) If VAPS is held liable by a third party due to an infringement of intellectual property rights committed by the customer or due to a violation of the customer’s duties and obligations mentioned in this part, the customer shall indemnify VAPS upon first request against all claims, regardless of the legal grounds, including necessary court and attorney fees.
Part III: Final Provisions
§1 Choice of Law
The law of the Federal Republic of Germany shall apply to all legal relationships with the customer, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
§2 Jurisdiction and Place of Performance
If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is Hanover. The place of performance is Isernhagen.
§3 Definitions
Unless otherwise agreed between the parties or prescribed as mandatory by law, the definitions of § 3 TKG and § 2 TMG shall apply.
§4 Severability Clause
Should individual provisions be invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. The invalid or unenforceable provision shall be replaced by that valid or enforceable provision that comes closest economically to the invalid or unenforceable provision.
Status: December 10, 2025
Note: Older versions of the General Terms and Conditions are available upon request via email.