General Terms and Conditions (GTC) of Sale of Vitracom GmbH

We, Vitracom GmbH, Steinhäuserstr. 9, D-76135 Karlsruhe (" we ", " us " or " Vitracom "), offer the sale of hardware products with integrated software in the form of, for example, sensors (hereinafter jointly referred to as "hardware"), the provision of standard software, the installation, maintenance and servicing of as well as instruction in the use of the hardware (jointly "support") and the development of individual software (in particular interfaces) as well as time-limited access to the Vitracom Device Management web application ("web application") via the Internet.

Part I General Conditions – Section 1

1. Scope

1.1 These General Terms and Conditions of Vitracom GmbH (“ GTC ”) together with the offer and all documents to which they refer constitute the entire agreement (“ Agreement ”) between the parties regarding

1.1.1 The provision of hardware and standard software;

1.1.2 The support and development of custom software; and

1.1.3 Time-limited access to the web application.

1.2 Except for any framework agreement entered into between the parties, this agreement supersedes all previous drafts, agreements, representations and warranties of any kind, whether written or oral. In the event of a conflict between a provision in these Terms and Conditions and a provision of a framework agreement existing with the customer, the relevant provision of the framework agreement shall prevail.

1.3 Any deviating, conflicting or supplementary general terms and conditions of the customer, including those contained in an order or a delivery confirmation from the customer, do not apply unless the parties agree otherwise in writing or we expressly consent to them. This consent requirement applies in all cases, even if we act in knowledge of the customer's general terms and conditions.

2. Applicability

2.1 The provisions of Part I and Part V shall apply to all services provided by Vitracom under this Agreement.

2.2 The provisions of Part II apply to the provision of hardware and standard software by Vitracom.

2.3 The provisions of Part III apply to the support and development of customized software by Vitracom.

2.4 The provisions of Part IV apply to the provision of the web application.

3. Scope of services

The type, content and scope of the services to be provided by Vitracom are determined from the offer, the service package for the web application selected and referred to therein, and the service and/or product description of Vitracom on which the respective offer is based.

4. Conclusion of contract; offer and acceptance

The offers are non-binding and subject to change. The customer's order for the service is considered a binding offer. We can accept customer orders within four (4) weeks of receipt by written confirmation (e.g. order confirmation), activation of the web application for the customer or delivery and, if applicable, installation of the ordered hardware and, if applicable, software. Silence on our part in response to the customer's binding offer is considered a rejection of the offer.

Part II Provision of hardware and standard software

5. Applicability

The provisions of this Part II apply to the provision of hardware and standard software by Vitracom.

6. Delivery of hardware and standard software; place of performance; transfer of risk and shipping

6.1 Vitracom supplies the hardware and standard software described in the offer, with which a counting accuracy of up to 98% can be achieved 

6.2 Delivery takes place by making the hardware and standard software available at Vitracom. 

6.3 The risk of accidental loss and accidental deterioration shall pass to the Customer upon provision of the goods.

6.4 At the customer's request and expense, the hardware will be shipped to another destination. Vitracom is entitled to determine the type of shipment (in particular packaging, shipping route, carrier).

7. Retention of title 

7.1 Vitracom retains ownership of the hardware until the purchase price has been paid in full. 

7.2 In the event of seizures, an application for the opening of insolvency proceedings or other interventions by third parties in Vitracom’s property rights, the Customer must notify Vitracom immediately in writing. 

8. Duty to examine and give notice of defects 

8.1 The customer will examine the hardware and standard software, including any documentation, within five (5) working days of delivery, particularly with regard to completeness and basic functionality. Any defects that are discovered or could have been discovered must be reported to Vitracom by the customer within a further five (5) working days in writing or by email (“Notice of Defects”). The notice of defects must contain as precise a description of the defects as possible.

8.2 In the event of a breach of the obligation to inspect and give notice of defects, the hardware and standard software or the documentation shall be deemed to have been approved with regard to the defect in question.

9. Prices, payment terms, price adjustments 

9.1 The customer must pay the agreed remuneration for the hardware. All prices are exclusive of any sales tax, customs duties, packaging, shipping and other charges, unless otherwise agreed.

9.2 If Vitracom sends the hardware to another destination at the customer's request, the customer must bear the costs for packaging and shipping in addition to the remuneration in accordance with section 9.1 above.

10. Rights of use

10.1 Rights to integrated software: 

If integrated software is provided to the customer as part of the hardware, the customer is entitled to use the software as part of the hardware as intended. This includes the right to distribute the software as part of the hardware to third parties.

10.2 Rights to standard software

If standard software is provided to the customer, Vitracom grants the customer the simple, temporally and spatially unlimited, sublicensable, transferable and irrevocable right to load, display and run the standard software. 

10.3 Third-party components 

If and to the extent that the integrated or standard software contains components from third-party providers, the customer is granted the following rights of use:

10.3.1 Sublicense: Clauses 10.1 and 10.2 apply accordingly to third-party components for which Vitracom grants the customer usage rights by way of a sublicense. Any special license terms that may apply to third-party components are attached to this agreement in Appendix 2 and apply in addition to this agreement. They take precedence over this agreement to the extent that they are inconsistent with it. 

10.3.2 Open Source Components: Rights of use for open source components are granted to the Customer directly by the respective rights holders in accordance with the applicable open source licenses contained in Appendix 3 to this Agreement. 

11. Material and legal defects (software and hardware)

Vitracom’s liability for material and legal defects (hereinafter “defects”) of the hardware or standard software is limited in accordance with the following provisions.

11.1 Exclusion of warranty rights

11.1.1 Rights based on defects are excluded in the case of minor or insignificant deviations from agreed specifications and in the case of only insignificant impairment of use. Product descriptions are not deemed to be guaranteed unless this has been agreed separately in writing. 

11.1.2 The delivery of used hardware expressly agreed with the customer in individual cases is subject to the exclusion of any warranty for material defects. The exclusion does not apply to claims for damages arising from grossly negligent or intentional breach of obligations by Vitracom or for any injury to life, body or health.

11.1.3 If a defect is not caused by the hardware or standard software sold by Vitracom, but by software products from third parties or the customer or by the hardware used by third parties, the customer's claims for defects against Vitracom are excluded. The same applies if the customer or a third party commissioned by the customer has made changes or modifications to the hardware or standard software without the consent of Vitracom or has not installed the hardware properly or has not operated it properly, unless the customer proves that the changes or modifications are not the cause of the defect.

11.2 Notice of defects

Defects must be reported in writing with a comprehensible explanation of the symptoms. 

11.3 Subsequent performance

11.3.1 If the customer reports a defect, Vitracom is entitled and obliged to remedy the defect twice within a reasonable period of time. Vitracom will, at its own discretion, either remedy the defect (rectification) or deliver a defect-free item (replacement delivery). Vitracom's right to refuse remedy under the statutory conditions remains unaffected.

11.3.2 If this is reasonable for the customer, Vitracom is also entitled to remedy the defect by providing a workaround or temporary solution. 

11.3.3 The Customer acknowledges that Vitracom has successfully remedied the defect if Vitracom either

(i) within two (2) weeks after notification of a defect by the Customer, releases and makes available to the Customer a new version of the integrated or standard software in which the defect in question is corrected; or, if Vitracom does not release such a new version,

(ii) if Vitracom remedies the defect in question within three (3) weeks of notification of the defect by the Customer as set out above or supplies the Customer with a replacement or provides a workaround or workaround solution.

11.3.4 If it turns out that a defect is not the responsibility of Vitracom, the customer shall bear the costs and expenses for rectification, repair and/or replacement delivery. 

11.4 After a reasonable number of unsuccessful attempts at rectification and if the legal requirements are met, the customer may withdraw from the agreement, reduce the purchase price and/or demand compensation.

11.5 The customer must support Vitracom to the extent reasonable in the elimination of defects, in particular the customer must provide Vitracom with access to the hardware, send the hardware at Vitracom's request and install corrective measures or replacement deliveries of the integrated or standard software that Vitracom has provided or have Vitracom install them. In the case of replacement delivery, the customer must return the defective hardware in accordance with the statutory provisions.

11.6 Claims for material and legal defects expire after twelve (12) months from the transfer of risk as set out in Section 6. If defects occur within the limitation period, the limitation period is extended by the period during which they are remedied. Several such consecutive periods are considered to be one period within the meaning of sentence 2 of this Section 11.6.  

11.7 The customer’s statutory obligations to inspect and give notice of defects remain unaffected. 

Part III Hardware support and development of individual software

12. Applicability

The provisions of this Part III apply to the support and development of customized software by Vitracom.

13. Obligations of Vitracom 

Vitracom provides the services specified in the offer for hardware support (see Section 14) and/or for the development of individual software (see Section 16).

14.    Support

14.1 Vitracom will provide support services for the hardware if the parties have agreed on such support services in the offer or otherwise.

14.2 The installation of the hardware is considered complete, 

14.2.1 if the Customer uses the Web Application and the Customer successfully logs into the Web Application, or 

14.2.2 if the customer does not use the web application and the data is transmitted via the data connection provided by the customer, or

14.2.3 if the Customer neither uses the Web Application nor provides an appropriate data connection and hardware is physically attached.

14.3 If and to the extent that acceptance of the installation of the hardware is to take place, acceptance shall be deemed to have taken place if

14.3.1 the delivery of the hardware and the installation are completed; or

14.3.2 the Customer has failed to accept the goods within 30 days for a reason other than a defect reported to Vitracom which makes the use of the hardware impossible or significantly impairs it.

15. Customer’s obligation to cooperate in support services

15.1 The successful planning and provision of support services depends in particular on the cooperation of the customer and the complete and timely provision of all information required and requested by Vitracom by the customer.

15.2 The customer is also obliged 

15.2.1 To support Vitracom to an appropriate extent in the provision of support services. The customer will in particular create all the conditions necessary for the provision of services by Vitracom, in particular the conditions for installation communicated by Vitracom by the agreed date;

15.2.2 to provide Vitracom with the information required for the provision of services completely and correctly; and

15.2.3 to provide information, without being asked to do so, in a timely manner about all circumstances and events that are relevant to the provision of the agreed services.

If the installation conditions are not met on the installation date for reasons for which the customer is responsible, the customer must reimburse Vitracom for the resulting costs and expenses.

15.3 The Customer is obliged to observe and use the checklists provided by Vitracom for the processing and/or rectification of reported faults or the instructions given by Vitracom in this case.

15.4 The customer is obliged to take appropriate precautions to a reasonable extent to prevent unauthorized third parties from accessing the web application, the software, any backup copies, documentation and accompanying materials. The customer is obliged to oblige its employees to prevent unauthorized access through suitable contractual or other regulations or measures.

16. Development of individual software

Vitracom develops the individual software specified in the offer for the customer using an agile development process. 

16.1 The individual steps of software development - from determining the requirements to specification, development and programming to provision for the customer - are carried out in an agile development process. Vitracom will follow the rules of the "Scrum" process model.  

16.2 Agile process model

The parties have agreed to use “Scrum”, an agile, iterative development model for the customized software, which is based, among other things, on the following principles:

16.2.1 The development and programming of the customized software takes place in several development cycles, so-called iterations (also "sprints"). In an iteration, individual functions or combinations of functions of the customized software to be developed, defined jointly by the parties, are planned, programmed until they are executable, tested, made available for functional testing and released by the customer. Each such function or combination of functions is usually a piece of software that can run on its own.

16.2.2 Clauses 10.2 and 10.3 apply accordingly to the customized software provided.

16.2.3 Instead of creating a detailed specification of the entire custom software before the start of development and programming of the custom software, the parties will only roughly define the functions of the custom software in so-called user stories before the start of development and programming work, which describe the requirements from the perspective of a user using everyday language. A detailed description and definition of the requirements and the functions to be created during the iterations will only be made at the start of the respective sprint, if necessary. 

16.2.4 The functions or combinations of functions to be programmed in each iteration are prioritized by the customer with Vitracom's support before the start of development and programming work. The customer therefore decides which functions are to be developed and programmed in which sprint. After the end of a sprint, the customer can define the functions to be developed in the next iteration in the same way.

16.2.5 After the end of an iteration, the customer can express requests for new functions for the customized software and remove individual functions from the scope of services. The customer can thus react flexibly to new findings and any changes in requirements within the scope of software development.

17. Customer’s obligation to cooperate in software development

17.1 The agile process model requires a particularly high level of active participation on the part of the customer. The customer is aware that it must continuously and adequately allocate its own resources for successful software development. 

17.2 At Vitracom’s request, the Customer will immediately provide the professional and technical information necessary for software development, make documents available and make decisions. 

18. Contract term; termination

18.1 The Support and Software Development Services Agreement is concluded upon signature by the parties and is concluded for an indefinite period. It may be terminated by either party at any time with three (3) months' notice.

18.2 The parties may also terminate the agreement on support and software development services in writing without notice for good cause. Good cause for termination exists in particular if

(i) a party intentionally or negligently breaches material obligations or repeatedly breaches non-material obligations under the agreement and does not remedy the breach within a reasonable period of time even after being requested to do so by the other party and it is no longer reasonable for the other party to adhere to the agreement,

(ii) insolvency proceedings have been opened or are imminently pending against the customer’s assets; or

(iii) the Customer is in arrears with the payment of an invoice for more than thirty (30) working days.

The parties agree that the closure of branches does not constitute an important reason for termination.

19. Fees

19.1 Support services

The customer pays for the support services according to the fees specified in the offer.

19.2 Development of individual software

For the development of the customized software and for all services in this context, including the granting of the rights of use owed, Vitracom will receive an expense-related fee based on Vitracom's current daily rates, plus statutory sales tax. 

19.3 If the Customer has an interface set up between different systems, the responsible system provider may incur costs over which Vitracom has no influence and which must be borne by the Customer.

Part IV Deployment of the web application

20. Applicability

The provisions of this Part IV apply to the provision of the web application.

21. Obligations of Vitracom 

21.1 The web application is operated by Vitracom as a SaaS solution. During the provision period, Vitracom provides access to the web application in the latest version. The customer is given the opportunity to use the software stored and running on Vitracom's own servers or the servers of a service provider commissioned by Vitracom for his own purposes via an Internet connection during the term and to use it to store and process his data. The web application or the data stored in it (for example on a data carrier) is not physically transferred to the customer.

21.2 Vitracom provides the customer with the web application at the router output of the data center in which the server with the web application is located, under the conditions of this Part IV and the service package selected by the customer (“handover point”). The service packages enable the customer to use the web application to the extent defined for the respective service package and thus to evaluate visitor frequency measurements carried out using the hardware.

21.3 The customer and the users authorized by him can use the web application via the customer portal accessible at  .  Vitracom provides the customer with the customer-specific access data required to use the web application.

21.4 The customer creates the technical requirements for using the web application on his side. Internet access and a standard browser are generally required. The customer will keep the browser and operating system of the accessing computers up to date. The web application can only be used to a limited extent if the internet connection is poor, and in particular the response times are noticeably slower.

21.5 Hosting takes place exclusively in Germany or in EU member states.

21.6 Vitracom uses suitable means, in particular virus scanners and firewalls, to ensure or have a commissioned third party ensure that unauthorized access to the customer's data stored in the web application and the transmission of damaging data, in particular viruses, are prevented or stopped, insofar as this is possible with reasonable economic and technical effort. The customer is aware, however, that complete protection against damaging data is not possible. If a risk cannot be eliminated in any other way that is technically and economically appropriate and promising, Vitracom is entitled to delete or have deleted customer data containing damaging code from the web application. Vitracom will inform the customer of this.

21.7 Vitracom will back up the customer's data stored in the database at least once every working day in accordance with current technical standards or have it backed up by a commissioned third party. The data will be backed up on magnetic tapes or other suitable media that may not be deleted or re-used for at least the following seven days. The customer is responsible for complying with any retention periods, particularly those under commercial and tax law. 

21.8 In order to fulfil its obligation to maintain the equipment, Vitracom will carry out the necessary maintenance and repair work in accordance with the state of the art.

22. Availability of the web application

The availability of the web application is determined by a service level agreement included in the offer. In addition, the following applies:

22.1 The web application is available Monday to Friday from 7:00 a.m. to 6:00 p.m. and Saturday from 7:00 a.m. to 4:00 p.m. CET (“operating hours”). Sundays and federal holidays are not included in the operating hours. 

22.2 The average availability during operating hours is 90% on a monthly basis. 

22.3 The web application may also be available outside of operating hours (“maintenance times”), but Vitracom is not obliged to ensure the availability of the web application during maintenance times or to ensure that the web application is available without restrictions during maintenance times. If maintenance work is required during operating hours, Vitracom will inform the customer of this in advance, if possible. To compensate for this, Vitracom will restrict the regular maintenance times to the same extent.

23. Customer’s obligation to cooperate

23.1 The customer must do everything reasonable to ensure trouble-free operation of the web application and refrain from doing anything that could compromise the security and stability of the web application. In particular, the customer must keep the access data secret and ensure that no third party can misuse this data. The customer will oblige the users authorized by him to do so accordingly.

23.2 The customer will protect the devices on which the web application is used from unauthorized access and regularly check them for viruses and other malware. If there is a suspicion of a virus infection or similar, the affected devices must not be used to access the web application.

24. Rights to data processing; data backup

For the purposes of providing the web application, the customer grants Vitracom the right to copy the data to be stored by Vitracom for the customer, insofar as this is necessary to provide the services owed under this agreement. Vitracom is also entitled to keep the data in a backup system or separate backup data center. In order to eliminate faults, Vitracom is also entitled to make changes to the structure of the data or the data format. 

25. Performance adjustment

25.1 Vitracom is entitled to make changes to the contractual services in connection with the web application, including changes to the functionality and availability of the web application ("service adjustments"). A service adjustment cannot be objected to in particular if it is necessary for an important reason, such as adjustments to technical developments, and the performance characteristics of the web application continue to be essentially fulfilled.

25.2 Vitracom will notify the customer of service adjustments in writing or by email in good time before they come into effect (“change notification”). The customer may object to changes in writing or by email within four (4) weeks of receiving the change notification. 

25.3 If the customer does not object, the announced service adjustments will become part of the contract. Vitracom will inform the customer of the consequences of their behavior in the notification of changes. If the customer objects, Vitracom can terminate the agreement for the provision of the web application at the end of the next calendar month.

26. Contract term; termination

26.1 The agreement on the provision of the web application is concluded upon signature by the parties and is initially valid for twenty-four (24) months, unless a different minimum term has been agreed in writing ("initial term"). It is automatically extended by a further year ("supplementary term") unless one party terminates the agreement in writing with one (1) month's notice to the end of the initial or supplementary term.

26.2 Clause 18.3 shall apply accordingly.

27. Prices and payment terms

27.1 Vitracom will receive the monthly fee agreed in the offer for providing the web application. If the web application is provided for a period of less than a full calendar month, the monthly fee will be reduced pro rata. Clause 9.1, sentence 2 applies accordingly. 

27.2 Billing is done quarterly in advance. The quarterly fee is due by the 10th working day of the first month of the quarter. If this payment deadline expires, the customer will be in default.

28. Rights of use

28.1 Since the web application runs exclusively on the servers of Vitracom or the service providers commissioned by Vitracom, the customer does not require any copyright usage rights to the web application, and Vitracom does not grant any such rights. 

28.2 However, for the duration of the provision, Vitracom grants the customer the non-exclusive, non-transferable and temporally limited to the duration of the provision, but territorially unlimited right to load the user interface of the web application into the RAM of the terminal devices used for access for display on the screen and to make the resulting copies of the user interface and to use the web application. 

29. Warranty for the web application

29.1 Vitracom shall be liable for material and legal defects (hereinafter “Defects”) of the web application in accordance with the following provisions and otherwise in accordance with the statutory provisions.

29.2 The statutory provisions on warranty apply in principle. Sections 536b (tenant's knowledge of the defect at the time of conclusion or acceptance of the contract) and 536c (defects occurring during the rental period; notification of defects by the tenant) of the German Civil Code apply. However, the application of Section 536a Paragraph 2 of the German Civil Code (tenant's right to remedy the defect himself) is excluded. The application of Section 536a Paragraph 1 of the German Civil Code (landlord's obligation to pay damages) is also excluded insofar as the norm provides for liability regardless of fault.

29.3 The customer's right to terminate the contract due to non-granting of use of the web application in accordance with Section 543 Paragraph 2 Sentence 1 No. 1 of the German Civil Code (BGB) is excluded unless the establishment of the contractual use is deemed to have failed. Failure to establish the contractual use can only be assumed if Vitracom does not remedy a significant defect within a period of four (4) weeks from receipt of the notice of defect or provides an appropriate workaround and the customer has properly provided the cooperation required of him in this context. The customer is not entitled to terminate the agreement due to minor defects.

29.4 The customer is obliged to report any malfunctions, malfunctions or impairments of the web application to Vitracom immediately and as precisely as possible.

29.5 If the functional failures, malfunctions or impairments of the web application that have occurred have been caused by the customer, the telecommunications service provider, the access provider or the mobile phone provider of the customer or by any other third party attributable to the customer, the customer's claims for defects in this regard are excluded.

Part V General Part – Section 2

30. Contact person

The customer shall provide Vitracom with at least one technical and one accounting contact person with contact details (including telephone number and email address) and shall undertake to inform Vitracom of any changes without delay.

31. Performance time 

31.1 Delivery and service dates specified by Vitracom are non-binding unless Vitracom and the customer expressly agree otherwise in writing. 

31.2 The occurrence of a delay in delivery or performance is determined by the statutory provisions. In any case, a reminder from the customer is required.

32. Invoicing

32.1 The invoice will be sent to the customer as an email attachment (pdf file) to the email address provided by the customer; alternatively, at the customer’s request, the invoice will be sent by post.

32.2 Invoices issued by Vitracom are due for payment in accordance with the payment terms agreed with the customer. Unless otherwise agreed, the payment terms are fourteen (14) days from the invoice date net without deductions. Once this payment term has expired, the customer is in default. If the parties have agreed in the order that a delivery or service is to be made in whole or in part against advance payment, the customer must pay the remuneration in advance.

32.3 Vitracom is entitled to make price adjustments to the extent that these are necessary to compensate for cost increases in the procurement of the contractual services, such as increases in the prices of hardware or hosting of the web application, and are reasonable for the customer. Price adjustments are particularly reasonable if they demonstrably only adjust the prices to the general price development determined by the consumer price index of the Federal Statistical Office (overall index).

32.4 Vitracom will notify the customer of price adjustments in writing or by email in good time before they come into effect (“change notification”). The customer may object to changes in writing or by email within four (4) weeks of receiving the change notification. 

32.5 If the customer does not object, the announced price adjustments will become part of the contract. Vitracom will inform the customer of the consequences of their behavior in the notification of the change. If the customer objects, Vitracom can terminate the agreement at the end of the next calendar month.

33. Force majeure

33.1 In the event of force majeure, the party affected is released from its obligation to perform for the duration and to the extent of the effect. Force majeure means any event outside the control of a party that is unforeseeable, unavoidable and not its fault and which prevents it from performing in whole or in part, including, but not limited to, fire damage, floods, strikes, epidemics or pandemics, riots, explosions, acts, omissions and measures of a government or compliance with government requests ("Force Majeure").

33.2 In the event of Force Majeure, the Parties shall notify each other immediately and provide detailed information within 15 (fifteen) days, in particular on the extent and, as far as reasonably possible, the expected duration of the Force Majeure.

34. Liability

34.1 Vitracom shall be liable without limitation in cases of mandatory statutory liability (in particular under the Product Liability Act) and in the case of assumption of a guarantee, in the case of culpable damage resulting from injury to life, body or health or in the case of other damage caused intentionally, through gross negligence or fraudulently.

34.2 Furthermore, Vitracom’s statutory and/or contractual liability for damages is limited as follows:

34.2.1 Vitracom's liability is limited to the amount of damage typically foreseeable at the time of conclusion of the contract for the slightly negligent breach of essential obligations arising from the contractual relationship (i.e. those obligations whose fulfilment enables the proper execution of the contract in the first place, whose non-fulfillment would jeopardise the purpose of the agreement and on whose compliance the customer regularly relies, so-called cardinal or essential contractual obligations);

34.2.2 Vitracom shall not be liable for the negligent breach of minor obligations arising from the contractual relationship.

34.3 Indirect damages and consequential damages that are the direct result of defects in the delivery item are only eligible for compensation if these damages are typically to be expected when the hardware is used as intended. The statutory provisions apply.

34.4 The typically foreseeable damage amounts to €500,000.

34.5 To the extent that Vitracom’s liability is excluded or limited, this also applies to the personal liability of Vitracom’s representatives, employees and vicarious agents.

34.6 The parties agree that the assumption of a guarantee shall always require an express written agreement in which the guarantee is expressly referred to as a "guarantee". In this case, the limitations of liability under this clause shall not apply. 

34.7 The Customer is obliged to take all appropriate measures to prevent and minimize damage, which in particular includes the Customer's obligation to regularly back up data and to subsequently carry out regular security checks (in particular to prevent or detect viruses and other disruptive programs in the Customer's IT system).

35. Third party intellectual property rights

If a third party claims that the customer has infringed copyright or industrial property rights through the use of the web application or the integrated, standard or customized software, the customer is obliged to inform Vitracom immediately. Clause 34 remains unaffected.

36. Data protection

36.1 To the extent that Vitracom processes personal data when providing services in accordance with this contract, Vitracom acts as a processor and the customer remains responsible within the meaning of the European General Data Protection Regulation (GDPR) and is obliged to comply with the associated requirements. At the same time, the customer indemnifies Vitracom against all claims by third parties as a result of this processing, insofar as these are based on a violation of data protection regulations for which Vitracom is not responsible. 

36.2 If Vitracom acts as a processor within the meaning of Art. 28 GDPR, the parties shall conclude an agreement on data processing in accordance with Appendix 1. 

36.3 Vitracom is entitled, as a processor, to anonymize counting and measurement results collected for the customer for its own purposes and to further process or use them in anonymized form.

36.4 Vitracom will delete all data and information upon reasonable request; this does not apply to data and information contained in standard backup copies (backups that can only be deleted with disproportionate effort). For these backups, the parties agree that they will no longer be used or accessed from the time the data must be deleted and that Vitracom will mark this data for deletion and ensure that it is completely, permanently and irrevocably deleted no later than 180 days after reasonable request.

37. Confidentiality

37.1 The parties shall treat as confidential all information, documents and data that are trade secrets within the meaning of the Trade Secrets Protection Act or are marked as confidential or are generally considered confidential in commercial transactions ("Confidential Information"). All Confidential Information transmitted by one party to the other may only be used by the other party for the purposes stipulated in the contract and the receiving party may not disclose the Confidential Information to third parties without the consent of the other party, unless 

37.1.1 to fulfil the contractual purposes, 

37.1.2 to external consultants if they are obliged to maintain confidentiality, 

37.1.3 to enforce legal claims against the other party or 

37.1.4 to fulfil legal or regulatory obligations.

37.2 The obligation of confidentiality does not apply to information 

37.2.1 which were publicly known or subsequently become publicly known through no fault of either party; 

37.2.2 which were already known to the other party at the time of conclusion of the contract and are not subject to a confidentiality agreement or 

37.2.3 which were disclosed to the Party by a third party and are not subject to a confidentiality agreement.

37.3 The confidentiality obligations shall continue to apply indefinitely even in the event of termination of this Agreement. At the request of the other party, the parties shall return confidential information of the other party upon termination of this Agreement or, to the extent technically possible, destroy it. 

38. Export/import control law 

The hardware or the integrated, standard or individual software may be subject to the export and/or import control laws of individual countries. If the customer requires an official permit or must meet other official requirements for the acquisition, transport, use or other contractual handling of the hardware or the integrated, standard or individual software, the customer undertakes to obtain any such permit and/or to ensure compliance with all such requirements at his own expense and to provide evidence of this to Vitracom upon request. Compliance with any applicable laws, regulations or other binding rules required for the acquisition, transport, use or other contractual handling of the hardware and the integrated, standard or individual software is the sole responsibility of the customer.

39. References 

Vitracom is entitled to name the customer as a reference on the Internet or in other advertising materials. The customer's legitimate interests must be taken into account in this regard.

40. Final provisions 

40.1 Written form 

Changes or additions to this agreement are only valid if made in writing by an authorized person (managing director, authorized representative). This also applies to the cancellation of the written form requirement. 

40.2 Set-off and retention

40.2.1 The customer has a right of set-off only if his counterclaims have been legally established or are undisputed.

40.2.2 The customer can only exercise a right of retention if his counterclaim is based on the same contractual relationship as our claim and has also been legally established or is undisputed.

40.3 Provision of services by third parties

Vitracom is entitled to use third parties to provide its services, as long as this is not unreasonable for the customer in the individual case.

40.4 Applicable law, place of performance, place of jurisdiction

40.4.1 These Terms and Conditions, the Agreement and also individual orders of the Customer are subject to German law, excluding the UN Convention on Contracts for the International Sale of Goods.

40.4.2 The place of performance for all obligations arising from these Terms and Conditions and the Agreement is Karlsruhe.

40.4.3 The exclusive place of jurisdiction for all disputes arising from or in connection with these Terms and Conditions, this Agreement and their implementation is Karlsruhe, provided that the Customer is a merchant or a legal entity under public law. 

40.5 Severability clause

Should individual provisions of this agreement be or become invalid or unenforceable in whole or in part or contain a gap, this shall not affect the validity and enforceability of the remaining provisions.