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General Terms and Conditions

I. General information

  1. The following terms and conditions apply to the MKW service agreements "MK|Goods".
  2. The object is the provision of services for the software product "MK|Ware" by MKW.
  3. The services to be provided by MKW consist of services that include the diagnosis and elimination of errors in the software "MK|This also applies to the preparation of service calls within the contractually agreed response times, insofar as this is possible with the aid of remote maintenance or remote diagnostics.

II Provision of services

  1. MKW will provide the services according to the respective state of proven technology.
  2. MKW will only deploy qualified and reliable personnel. It will only use proven procedures, tools and equipment that it knows to be suitable, that it has mastered and that correspond to the applicable state of the art.

III Troubleshooting

  1. MKW will respond to the notification of a defect by the customer in accordance with the deadlines agreed in the service contract.
  2. MKW will provide a service hotline (telephone hotline) for the contact person named by the customer to receive reports from the customer. The hotline is staffed around the clock, 7 days a week. Telephone support is provided in German and English.

IV Service times

  1. MKW shall provide the services within the service times agreed in the service contract.
  2. MKW cannot provide any services outside the agreed service times, even if the malfunction that has occurred objectively does not tolerate any delay.

V. Other troubleshooting and customization services, consulting

  1. MKW will carry out other troubleshooting and customization services at the customer's request and on the basis of a separate order, in particular:
    - Changes to the software, in particular adaptation to new products and services and to changes in the customer's operating processes;
    - Adaptation of the software to a changed hardware and/or software environment of the customer, including new program versions (e.g. new releases, updates/upgrades) of third-party software used in the system;
    - Elimination of malfunctions caused by improper operation of the software by the customer, force majeure, intervention by third parties or other influences not caused by MKW;
    - Other adaptations, additions and extensions to the software as requested by the customer;
    - Consulting services.
  2. A claim for remuneration by MKW requires a written order from the customer.
  3. MKW may only refuse to provide other troubleshooting and customization services as well as consulting services if it can be proven that their execution is unreasonable within the scope of its operational capacity.

VI Cooperation of the customer

  1. Defects in the software must always be reported by telephone via the service hotline. If a report is not made via the service hotline, the customer waives the contractually agreed response time. The telephone report must include the customer's name, the name of the contact person and a callback number. A brief description of the fault can also be given.
  2. The customer shall grant MKW access to its own premises and access to the hardware and software required for the provision of services on site during its regular business hours and to the extent necessary, and shall provide the necessary technical equipment. If the urgency of the respective service requires it, access shall also be granted outside the customer's regular business hours. MKW shall ensure that the customer's business operations are disturbed as little as possible by its activities on site.

VII Remuneration

  1. The customer shall pay for MKW's services on a monthly basis in accordance with the contractually agreed service plus statutory VAT. The due date is based on the contractually agreed period.
  2. A separate remuneration is due for the services to be provided in accordance with point V., which is determined according to a separate offer from MKW. The parties are free to agree a different remuneration model for these services.

VIII Material defects and defects of title

  1. MKW warrants that the contractually owed services are free of defects and third party rights.
  2. Should the contractual services infringe the property rights of third parties, the customer shall inform MKW immediately in writing and provide MKW with the information and other appropriate support required for defense.
  3. MKW shall, at its own expense and at its discretion, either procure the necessary rights of use for the customer or modify the contractual services in such a way that they no longer infringe third-party property rights but continue to comply with the contractual agreements. In the latter case, MKW shall carry out all necessary conversions, conversions, adaptation of documentation, training, etc. If MKW is not in a position to grant the necessary rights of use or to modify the contractual services accordingly, the customer is entitled to terminate the contract immediately. The customer's right to assert further claims for damages remains unaffected.
  4. In the event of infringement of third-party property rights, MKW shall indemnify the customer against all resulting claims and claims for damages as well as against the costs of legal defense in an appropriate amount against proof. The indemnification is subject to the condition that the customer only concludes a settlement or acknowledges the claims asserted by the third party with the prior written consent of MKW.

IX. Liability

  1. MKW has unlimited liability
    - in the event of intent or gross negligence,
    - for injury to life, limb or health,
    - in accordance with the provisions of the Product Liability Act and - to the extent of a guarantee assumed by MKW.
  2. In the event of a slightly negligent breach of an obligation that is essential for achieving the purpose of the contract (cardinal obligation), MKW's liability shall be limited in amount to the damage that is foreseeable and typical for the type of transaction in question.
  3. MKW shall have no further liability.
  4. The above limitation of liability also applies to the personal liability of employees, representatives and organs of MKW.

X. Term and termination

  1. The contract begins when the customer's order is received by MKW. The order must be received before the start of the respective month and runs for a period of one month or 12 months.
  2. The customer is entitled to terminate the 12-month contract during the fixed term at the end of a month with a notice period of 4 weeks. In the event of premature termination, the discount granted in advance will be charged for the actual term of the contract.
  3. The right of both parties to extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist in particular if
    - if the financial situation of the other party deteriorates significantly,
    - if insolvency proceedings are opened against the assets of the other party or the opening of such proceedings is rejected for lack of assets, or if the underlying service contract is terminated by termination, withdrawal, rescission or in any other way.
  4. Any termination must be in writing.

XI. Confidentiality

  1. "Confidential information" is all information and documents of the other party that are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships and know-how, as well as - for MKW - all work results.
  2. The parties agree to maintain confidentiality about such confidential information. This obligation shall continue for a period of 5 years after termination of the contract.
  3. Such confidential information is exempt from this obligation,
    a) which were demonstrably already known to the recipient when the contract was concluded or which subsequently become known to the recipient from a third party without violating a confidentiality agreement, statutory provisions or official orders;
    b) which are public knowledge at the time of conclusion of the contract or are made public thereafter, insofar as this is not based on a breach of this contract;
    c) which must be disclosed due to legal obligations or by order of a court or authority. As far as permissible and possible, the recipient obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.
  4. The parties shall only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to the confidentiality obligations of the contract. Furthermore, the parties shall only disclose the confidential information to those employees who need to know it for the execution of the contract and shall also oblige these employees to maintain confidentiality to the extent permitted by labor law for the period after their departure.
  5. In the event of any culpable breach of the above confidentiality obligations and/or those arising from corresponding statutory provisions (e.g. Sections 17 and 18 of the German Unfair Competition Act), the party responsible for this breach promises to compensate the disclosing party for any demonstrable damage incurred. Further claims of the parties remain unaffected.

XII. Data protection and information security

  1. MKW will comply with all relevant laws and regulations for the protection of personal data when providing the contractually owed services.
  2. MKW has taken appropriate and state-of-the-art organizational and technical measures to ensure the availability, integrity, authenticity and confidentiality of its information systems, components and processes used in the provision of services and all data provided or otherwise made accessible by the customer. These requirements also apply to communication and cooperation with the customer. When using systems not subject to its access, it must impose corresponding obligations on its contractual partners and regularly monitor compliance with them MKW is also obliged to regularly back up data to the necessary extent.
  3. The customer is entitled to check compliance with the data security requirements at any time after prior written notice of at least 14 working days. For this purpose, MKW shall grant him access to his business facilities relevant for the audit, in particular the IT facilities, during his normal business hours.

XIII Other

  1. In the event of contradictions to the contracts already concluded between the parties, the provisions of the service contract "MK|Goods" have priority.
  2. The customer may only transfer contractually based claims against MKW to third parties with the written consent of MKW.
  3. Each contracting party may only offset against undisputed or legally established claims of the other contracting party.
  4. Amendments and additions to the contract must be made in writing. This also applies to the amendment or revocation of this clause.
  5. General terms and conditions of both parties shall not apply.
  6. The contract concluded shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention). The parties are aware that IT services may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the software or related technologies may be subject to restrictions abroad. MKW will comply with the applicable export and import control regulations of the Federal Republic of Germany and the European Union, as well as all other relevant regulations. The fulfillment of the contract by MKW is subject to the proviso that there are no obstacles to fulfillment due to national and international regulations of export and import law and no other legal regulations
  7. The place of performance is Wuppertal. The exclusive place of jurisdiction is Wuppertal, provided that each party is a merchant or a legal entity under public law.

MKW GmbH Digital Automation Derken 15
42327 Wuppertal
Status: January 2024