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Version: 01.01.2021

General Terms and Conditions

1. Contractual basis

1.1. Scope

These General Terms and Conditions (GTC) of schalk&friends GmbH, Lindwurmstrasse 124, D-80337 Munich, shall apply to all schalk&friends legal transactions between and services or deliveries to its contractual partners (“customers”), both in Germany and abroad. Our GTC apply only to business operators as per § 14 BGB [German Civil Code], to legal entities under public law or to special funds under public law pursuant to § 310 BGB [German Civil Code]. Business operators as per § 14 BGB [ German Civil Code ] are defined as natural or legal persons or partnerships with legal capacity entering into a legal transaction in the name of their commercial or independent professional activity.

Our GTC shall apply here exclusively. No customer contractual terms and conditions possibly deviating from our GTC shall become components or constituents of the contract, even if based on our silence or reference to customer statements which may contain or refer to his own contractual terms and conditions, or if based on our unconditional acceptance of offers, our unconditional delivery or other performance or our unconditional acceptance of payments. Deviating individual contractual agreements reserved.

Our GTC shall also be the framework for all similar future contractual agreements, even should each individual agreement not expressly refer to these GTC. Subject to deviating individual agreements and provided we accordingly notify customers in advance, the GTC as amended at time of conclusion of a contract shall apply.

1.2. Order of precedence of contractual arrangements

All contractual agreements shall be in the following order of precedence:

a. Contracts based on individual agreement; especially the substance of offers schalk&friends make to customers

b. Special Contractual Conditions by schalk&friends and pertaining to specific services under a contract

c. These General Terms and Conditions (GTC)

The above order of precedence shall strictly apply in the event of any objections. Gaps shall in each case be addressed by respective subordinate provisions.

2. Subject matter of services

schalk&friends offers services and products in the field of the new media. The nature and scope of services provided or products supplied will be set out in the offers and defined by relevant technical specification of services.

Unless expressly otherwise agreed, no schedules for services offered by schalk&friends shall be immutable.

Deadlines shall be delayed by the time for which circumstances beyond their control prevent schalk&friends from performing the relevant service, including reasonable start-up times after impediments fall away.

Unless unacceptable to a customer, schalk&friends shall be entitled to deliver partial services.

schalk&friends shall be entitled to use third parties for the provisioning of their services.

The legal basis for

  • IT and multimedia services (2.1)
  • Digital marketing (2.2)
  • Web and network services (2.3)

is regulated primarily and in detail under Special Contractual Conditions and provisions under these GTC are subordinate and more general. Unless otherwise agreed, contracts under which schalk&friends undertake to provide customers with paid services shall be governed by the law on contracts for services (§§ 611 et. seq. BGB [German Civil Code]). Such services subject to the law on contracts for services may, for instance, include marketing advice to customers, design and maintenance of websites and services relating to search engine marketing (SEM), especially search engine optimisation (SEO). Unless expressly agreed, schalk&friends will not provide services as per the law on contracts for work and services §§ 631 et. seq. BGB [German Civil Code]. This shall also apply where customers accept individual services by countersigning service protocols, timesheets or other confirmation of performance, i.e. customers confirm provisioning as such.

2.1. IT and multimedia services

schalk&friends shall not be obligated to disclose source codes or install multimedia products at a customer or on his servers unless explicitly agreed under the order or specification of services. schalk&friends shall otherwise be under no obligation to provide the source code or install and/or implement products in customers’ system environment. schalk&friends is under no obligation to personally provide services and may deploy subcontractors they deem suitable for the task.

2.1.1 Front end

2.1.1.1. schalk&friends offers customers front-end multimedia services. This includes especially concept and design of Internet presences (websites), banners and advertising campaigns, also programming and consulting services for Internet pages. Such services will be provided in accordance with requirements as per specification of services as documented in writing or otherwise.

2.1.1.2. schalk&friends will, on request of customers, submit offers for website maintenance as per additional agreement. Such services can be offered either at an agreed fixed price or per hour of work.

2.1.2 Back end (software for websites)

2.1.2.1. schalk&friends will also offer back-end services for websites. This may, to the extent provided for in the specification of services, include provisioning of standard and/or customised software.

2.1.2.2 We point out that, unless expressly included in the offer, schalk&friends will not normally adapt standard software to suit individual customer requirements. schalk&friends will not, unless agreed between parties, produce its own documentation of supplied software.

2.1.3 Open source software

The software developed and/or distributed by schalk&friends may, wholly or in part, consist of open source software. Obtaining rights to open source software will be subject to the licence conditions pertaining to the specific software (“open source licences”). schalk&friends will, on request, notify customers about components and the specific open source licences that may be required. Customers shall undertake to honour pertinent open source licence requirements. Failure to comply with the requirements of open source licencing may, depending on the specific licence, render the use of such open source components illegal, among others.

2.1.4 Legal use

Legal use of schalk&friends services (especially in the fields of chat communication, e-mail marketing, back office & club, editorial systems (CMS), shop system, gaming modules, moving images (streaming)) will be the responsibility of customers. Customers will also be exclusively responsible for the use of all schalk&friends services provided, especially provided software and distributed content (e.g. content in e-mails / chats).

Customers shall, unless schalk&friends may be held responsible, indemnify schalk&friends against all claims (including the cost of legal defence incurred by schalk&friends) should third parties take legal recourse against schalk&friends based on allegedly illegal utilisation of schalk&friends services. Unless such obligation to indemnify is mandatory irrespective of culpability, this shall not apply where customers cannot be held responsible for such infringement.

2.2. Digital marketing

In addition to mediating and selling conventional online media advertising space as prevalent in the market in the form of banners, buttons, pop-ups, interstitials, superstitials or sticky ads, schalk&friends will also, on request of customers, provide any special types of advertising and campaigns such as associate programmes, sponsoring (events and specials), B2B features and similar new forms of advertising, including search engine marketing. Such marketing services will be provided as agency services on the basis of service contract legislation. Details will be described in the specific schalk&friends offer.

2.3. Web and network services

2.3.1 General

schalk&friends will, among others, provide the following services in the field of the web and networking:

  • Domain hosting
  • Server hosting
  • Network set-up and maintenance
  • Security concepts
  • EDP & groupware solutions
  • Functional enhancements (secure socket layer; font hosting; statistics and web analysis tools; backup; support)

2.3.2 Domain hosting

The special schalk&friends contractual conditions for domain services and the specifications of services will take precedence over these GTC and apply where schalk&friends provides domain hosting services such as creation and/or maintenance of domains.

2.3.3 Server hosting

schalk&friends provides the services required to make content available in the Internet. schalk&friends will to this end offer customers system resources on a server. Customers will be able to store content up to the quantities as agreed in the specification of services on this server. The schalk&friends server hosting services will be limited only by the data communication capacity between the schalk&friends internal data communication network and its point of transfer to the Internet and the server made available to a customer. schalk&friends has no influence over data traffic outside of its internal communication network. Successful transmission of information between a computer requesting data cannot therefore be guaranteed.

2.3.4 Availability / Service levels

2.3.4.1. schalk&friends is a service provider offering domain and/or server hosting with an overall monthly availability of 99.5% on average, unless otherwise defined in the specification of services. The above availability does not include scheduled and/or announced maintenance work (maintenance windows). schalk&friends will notify users of such maintenance windows in good time and will endeavour to schedule these between 9:00 and 17:00 (CET or CEST), outside of normal working day business hours, Monday to Friday. Public holidays in Bavaria and Germany excepted.

2.3.4.2 Internet transit services are provided at the service levels as set out in the Annex “Performance under Service Level Agreements”.

2.3.4.3. schalk&friends cannot be held responsible for the following disruptions of performance: any disruption, unavailability, delay or other impairment of quality of service caused by force majeure; disruptions of performance for which customers may be held responsible and any disruption, unavailability, delay or other impairment of the quality of service caused by third parties (excluding schalk&friends’ subcontractors), especially including but not limited to data transfer points controlled by network operators or third parties, third party systems or power supply services, or disruption of fibre connections caused by third parties).

3. Securing the performance

3.1. Rights of customers if agreed performance is not met

3.1.1 Rights of customers in cases of material defects

Unless otherwise agreed, customers will in cases of material defects have recourse to statutory rights defining liability for defects.

schalk&friends shall in cases of material defects under agreed sales contracts initially be obligated and entitled to either rectify such defect or provide replacements, at its discretion, such decision shall be made within a reasonable time.

Remediation of defects may also mean that schalk&friends may, within a reasonable period of time, show customers how the effects of a defect can reasonably be avoided within the contractual framework.

Customer claims for compensation of damages or futile expense shall be limited pursuant to Clauses 3.2. (Liability) and 3.6. (Statute of limitations).

Unless otherwise provided for under Clause 3.1.2, the provisions under Clause 3.1.1.1 to 3.1.1.4 shall, in cases subject to the law on contracts for services in general for failure to perform in accordance with a contract, apply supplemental to the following types of contract.


3.1.1.1 Law on contracts for services

The following provisions shall, especially in respect of front end services, digital marketing, website hosting and maintenance or care of software and/or websites, apply to schalk&friends contractual obligations to provide services governed by the law on contracts for services (§§ 611 et. seq. BGB [German Civil Code]) or the law on agency business against payment (§§ 675, 611 et. seq. BGB [German Civil Code]). schalk&friends will in each case endeavour to achieve the results sought. schalk&friends cannot, however, assume any further obligations or guarantee that the results envisaged by a customer will be achieved. Customers are obligated to reimburse schalk&friends for expenses pursuant to § 670 BGB [German Civil Code] unless these are already covered under the remuneration and unless otherwise arranged under a contract. Customers shall be responsible for all costs (i) they incur when using telecommunication or other services provided by third parties, (ii) they incur when procuring and maintaining the IT infrastructure required to use schalk&friends services, (iii) schalk&friends incurs in respect of any audits by data protection supervisory or tax authorities – the latter relating to storage of data relevant to taxation and (iv) incurred following improper access to schalk&friends systems by using access data provided by schalk&friends, if and to the extent that customers may be responsible for the use of such access data.


3.1.1.2 Law on the sale of goods

Insofar as laws governing the sale of goods apply (in particular sales of software, web design contracts (e.g. contracts for work and materials (§ 650 BGB [German Civil Code])) etc.) customers trading as merchants will be obligated to inspect products for defects that are obvious to the average user. schalk&friends shall immediately, after delivery, be notified of obvious defects, especially concerning products with evident functional defects, in writing, clearly describing the alleged defect. Customers shall notify schalk&friends of non-obvious defects within two weeks of detection, in writing or in text form, clearly describing such alleged defect for purposes of verification. Products shall be deemed approved in respect of a specific defect should the obligation to examine and give notice of defects be violated.

schalk&friends shall not be entitled to invoke a breach of the obligation to examine and give notice of defects should they have fraudulently concealed that defect.

schalk&friends shall for the rest only warrant that products were not at the time of delivery defective in a way to nullify or significantly reduce their suitability for normal use or use as defined under the contract.

Customer rights to remediation of defects shall be forfeited should they or third parties commissioned by them manipulate or modify a product, unless the customer can prove that such intervention did not cause such defect.

Should schalk&friends, after customer notification of a material defect, voluntarily provide services towards finding and remedying such defect, then customers shall be obligated to compensate schalk&friends for any damage and expenses incurred in this respect, unless customers were not in breach of their obligations when notifying the defect or cannot be held responsible for a possible breach of such obligation.


3.1.1.3 Law on rental rights

Should services or parts thereof be classified as services under rental agreements, especially in respect of paid provisioning of software for a limited period of time, then §§ 535 et. seq. BGB [German Civil Code] shall apply, with the following deviations:

No-fault liability of schalk&friends pursuant to § 536a Para. 1 Var. 1 BGB [German Civil Code] based on existing defects at the time of conclusion of contract shall be excluded.

Notwithstanding § 536 Para. 1 Clause 2 BGB [German Civil Code], customers shall not be entitled to set off reduced remuneration in respect of obligations to provide the products or services against the agreed remuneration; claims for enrichment and damages shall remain unaffected.

The last paragraph of Clause 3.1.1.2 shall apply accordingly.


3.1.1.4 Law on contracts for work and services

Should the law on contracts for work and services apply in individual cases, customers will be obligated to accept work produced in accordance with their contract and will not be entitled to refuse acceptance based on insignificant defects.

schalk&friends warrants that the required work performance will be carried out in accordance with the contract.

The urgency of remediation of a defect will be determined by the extent to which operation is encumbered.

The last paragraph of Clause 3.1.1.2 shall apply accordingly.

3.1.2 Rights of customers in cases of defects of title

3.1.2.1 Unless otherwise agreed, customers will, in the event of defects of title of schalk&friends services, be entitled to their statutory rights governing liability for defects.

3.1.2.2. schalk&friends shall in cases of material defects initially be obligated and entitled to either rectify such defect or provide replacements in case of a sales or rental contract, or, in cases of contracts for work and services to produce a new work or in case of other services to again provide such service at its discretion, such decision shall be made within a reasonable time. schalk&friends shall to this end, at its own cost and discretion and within a reasonable time, either grant customers the right to remedy the defect of title (e.g. proprietary rights of use) or modify the schalk&friends service a way to avoid the breach of rights without detracting from the agreed performance. A modified performance offering customers legally unobjectionable use of the service provided or, at schalk&friends’ discretion, offering an equivalent substitute or modified service fully compliant with the contractual agreements would be deemed to adequately satisfy this purpose.

3.1.2.3 Customers shall inform schalk&friends immediately, in writing and in detail, should a third party assert claims contradicting a customer’s contractually granted rights of use. Should customers cease any use in order to minimise damage or for other important reasons, they shall be obligated to point out to the third party involved that such cessation does not imply acknowledgement of the alleged infringement of proprietary rights. Customers shall not take legal action against a third party unless with the consent of schalk&friends and herewith authorise schalk&friends to take sole legal action against the third party, both in and out of court. Should schalk&friends at its own discretion avail itself of such authorisation, then customers shall refrain from acknowledging third party claims unless with the consent of schalk&friends.

3.1.3 Limitation of liability and statute of limitations

Customer claims for compensation of damages or futile expense shall be limited pursuant to Clauses 3.2. (Liability) and 3.6 (Statute of limitations).

3.2. Liability

3.2.1 General liability arrangements

3.2.1.1. schalk&friends will be liable pursuant to statutory provisions, without contractual limitation

  • for intent;
  • for damages, provided these are based on the absence of a conditions guaranteed by schalk&friends or based on fraudulent concealment of defects by schalk&friends;
  • for damages suffered based on injury to life, limb or health based on intentional or negligent violation of duty by schalk&friends or otherwise on intentional or negligent conduct of schalk&friends authorised representatives or vicarious agents;
  • for damages other than those listed under c), based on intentional or grossly negligent violation of duty by schalk&friends or otherwise on intentional or grossly negligent conduct of schalk&friends authorised representatives or vicarious agents;
  • under the Product Liability Act.

3.2.1.2. schalk&friends liability shall, for cases other than those listed in Clause 3.2.1.1, be limited to remediation of typical damage foreseeable under the contract, provided such damage was caused by negligent violation of cardinal obligations by schalk&friends or their authorised representatives or vicarious agents. Cardinal obligations are obligations that must be met to allow proper execution of the contract and which contractual partners may regularly rely on. Damage deemed typical and foreseeable under the contract is damage which schalk&friends on conclusion of the contract foresaw or should have foreseen as a possible consequence of a violation of duty, taking into account circumstances we knew or should have known.

3.2.1.3. schalk&friends shall not be held liable for negligence in cases other than those listed in 3.2.1.1. and 3.2.1.2.

3.2.1.4 No-fault liability of schalk&friends pursuant to § 536a Para. 1 Var. 1 BGB [German Civil Code] based on existing defects at the time of conclusion of contract shall be excluded.

3.2.1.5 Objections of contributory negligence shall remain unaffected.

3.2.1.6 The above provisions, with the exception of Clause 3.2.1.4, shall apply accordingly to schalk&friends’ liability in terms of reimbursement of futile expenses, including in favour of institutions, representatives and vicarious agents of schalk&friends.

3.2.2 Special liability arrangement for provisioning of telecommunications services

Insofar as telecommunication services as per § 3 No. 24 and § 44a TKG [German Telecommunications Act] are included within the framework of agreed schalk&friends services, the liability rules contained in § 44a TKG [German Telecommunications Act] shall apply to such services.

3.3. Rights; Referencing

3.3.1 Customers shall guarantee that they own the requisite rights of use of content (e.g. text, pictures, logos etc.) and other materials they may provide to schalk&friends for provisioning of contractual services. Customers are obligated to indemnify schalk&friends for all claims third parties may lodge based on infringement of rights, especially copyrights, ancillary copyrights, other industrial property rights or personal rights based on the use of content and materials provided for the provisioning of services under the contract; this shall not apply if customers cannot be held responsible for violation of duty, unless the duty to indemnify is by law irrespective of fault.

3.3.2 Unless expressly otherwise agreed in writing between parties, schalk&friends will grant customers the non-exclusive right to use the services provided by schalk&friends for their own business operations within the framework of the purpose of the contract. Customers shall not be entitled, without the prior consent of schalk&friends, to manipulate services, grant third parties rights of use to these services or to in any form market them. Customers’ legal rights to work on these shall remain unaffected.

3.3.3 Customers shall allow schalk&friends to reference them and their projects handled by schalk&friends and to include customers in schalk&friends’ marketing of their services in online and offline media, including the use of a customer’s name and logo.

3.4. Data protection; Order processing

schalk&friends will ensure that its employees comply with the relevant data protection requirements, both statutory and contractual.

Parties shall conclude agreements on commissioned order processing compliant with relevant regulatory requirements when customers commission schalk&friends to process personal data. The conclusion of agreements on order processing will not be a prerequisite to the conclusion of contracts under which schalk&friends will provide customers with goods and other services.

Customers shall indemnify schalk&friends from all required damages and expenses, including the costs of legal action or legal defence schalk&friends may incur as a result of violation of data protection regulations by customers, especially also including unavoidable damages or costs incurred by schalk&friends in defence from attacks by third parties or from measures taken by competent supervisory authorities; this will not apply unless customers may be held responsible for violation of data protection regulations, unless such obligation to indemnify is mandatory irrespective of fault.

3.5. Confidentiality

Both parties shall undertake to institute suitable measures to protect any business secrets which they may become privy to in the course of contractual cooperation, in compliance with the laws on the protection of business secrets, so as to ensure confidentiality in relation to third parties and to obligate its staff accordingly.

Further agreements on confidentiality and use of information, including statutory obligations such as relevant data protection regulations, shall remain unaffected.

3.6. Statute of limitations

3.6.1 The following will in accordance with statutory requirements be time-barred without contractual limitation where schalk&friends renders services based on laws governing the sale of goods (§§ 433 et. seq. BGB [German Civil Code]) or the law on contracts for work and materials (§ 650 BGB [German Civil Code]), e.g. the delivery of goods:

  • customer claims against schalk&friends in cases of liability based on intent;
  • customer claims against schalk&friends based on defective goods in cases where schalk&friends has maliciously concealed a defect or guaranteed the condition of the goods;
  • customer claims against schalk&friends based on defective goods in cases where the defect comprises a third party right in rem based on which the return of the goods may be rightfully demanded;
  • claims for reimbursement of expenses as per § 445a Para. 1 BGB [German Civil Code], i.e. customer claims against schalk&friends as the seller of newly manufactured goods, i.e. as supplier, reimbursement of expenses incurred to customers in their relationship with the buyer as per § 439 Para. 2 and 3 BGB [German Civil Code] and § 475 Para. 4 and 6 BGB [German Civil Code], where the defect asserted by customers’ buyers was already present at the time the risk passed to customers as sellers;
  • customer claims for compensation of damages
    • based on intentional or grossly negligent breach of duty by schalk&friends or on any other intentional or grossly negligent behaviour of any authorised representatives or vicarious agents of schalk&friends;
    • based on injury to life, limb or health based on intentional or negligent violation of duty by schalk&friends or on any other intentional or negligent behaviour of any authorised representatives or vicarious agents of schalk&friends;
    • under the Product Liability Act.

The period of limitation for customer claims based on material defects of goods shall be one year from delivery of the goods for all cases other than those listed in sentence 1.

Claims as per § 437 BGB [German Civil Code] and § 445a Para. 1 BGB [German Civil Code] by customers as sellers against schalk&friends as their supplier based on defects of newly manufactured product sold shall become time-barred no sooner than two months after customers as sellers have satisfied the claims of their buyers. This suspension of statute of limitation shall terminate no later than five years after the time when schalk&friends as supplier delivered the goods to customers as sellers.

3.6.2 The statute of limitation for schalk&friends services subject to the law on contracts for work and services (§§ 631 et. seq. BGB [German Civil Code]) in which the subject matter of contract is a work the success of which depends on its production, maintenance or modification or services involving planning or monitoring, will terminate as prescribed by statutory regulations, without contractual restrictions, in cases of

  • customer claims against schalk&friends in cases of liability based on intent;
  • claims of customers against schalk&friends based on defective goods in cases where schalk&friends has maliciously concealed a defect or guaranteed the condition of the contractual work;
  • customer claims for compensation for damages
    • based on intentional or grossly negligent breach of duty by schalk&friends or on any other intentional or grossly negligent behaviour of any authorised representatives or vicarious agents of schalk&friends;
    • based on injury to life, limb or health based on intentional or negligent violation of duty by schalk&friends or on any other intentional or negligent behaviour of any authorised representatives or vicarious agents of schalk&friends;
    • under the Product Liability Act.

The period of limitation for customer claims based on material defects of the contractual work shall be one year from delivery for all cases other than those listed in sentence 1.

3.7. Retention of title

Physical objects schalk&friends delivered for the fulfilment of a sales contract or a contract for work and services shall remain the property of schalk&friends until payment has been made in full.

4. Execution of contracts

4.1. Term / Termination

4.1.1 Contracts for schalk&friends services providing for continuing obligations (e.g. domain and server hosting) will be concluded for indefinite periods subject to a minimum duration of twelve (12) full calendar months, unless otherwise agreed in the Service Agreement (e.g. a fixed term). Either party shall be entitled to terminate contracts concluded for indefinite periods with a three (3) month notice period to the end of a calendar month, in writing, yet not before the end of the agreed minimum term.

The term of contracts with a specific agreed term shall in each case automatically extend by another six (6) calendar months unless properly terminated with a three (3) month notice period, in writing.

4.1.2 The right to termination for cause in cases of contracts with continuing obligations shall remain unaffected thereby.

4.2. Pricing and payments

4.2.1 Customers shall be obligated to pay schalk&friends the agreed remuneration. Unless expressly agreed otherwise, schalk&friends provides its services against payment. If the remuneration amount is not agreed expressly, the remuneration schalk&friends expects third parties to pay for comparable services (“list price”) shall be deemed agreed.Unless stated otherwise, all prices shall exclude the applicable statutory value added tax. All terms of payment shall be based on the offer in the specification of services and these GTC. Unless otherwise agreed, payment shall be made in full within fourteen (14) calendar days of receipt of the invoice. Invoice amounts shall be in Euros.

4.2.2 Price estimates by schalk&friends shall be non-binding, unless expressly otherwise agreed. Agreements on fixed prices or maximum amounts for services shall be formal.

4.2.3. schalk&friends reserves the right to provide services against advance payment only if objectively justified reasons exist and provided customers forward no overriding conflicting interests.

4.2.4 Customers may without contractual restrictions assert objections based on non-performance of the contract as per statutory provisions (§ 320 BGB [German Civil Code]). Customers shall not be entitled to exercise their right of retention unless their counterclaim is based on the same contractual relationship.

4.2.5 Statutory regulations allow customers to set off their claims based on non-performance or defects against schalk&friends claims without contractual restrictions, provided their claims

– are undisputed or legally established or ready for judgement, or

– are in a reciprocal relationship with schalk&friends claims, or

– continue such reciprocal relationship, e.g. to the extent customers have claims against schalk&friends based on defects.

Set-off by customers shall be excluded unless the above is applicable.

4.2.6 schalk&friends shall, despite customers’ provisions to the contrary, be entitled to first set off payments against customers’ oldest debt.

4.2.7 Statutory default interest rates (§ 288 BGB [German Civil Code]) shall apply to customers in default with payments. schalk&friends shall, however, be entitled to claim higher default damages from customers in cases of verified default.

4.2.8 Customers shall be entitled to object to schalk&friends invoices in writing or in text form within eight weeks from receipt of invoice. Customers will be deemed to have approved an invoice should they fail to raise their objections in good time, provided schalk&friends invoices specifically inform customers of this condition. Legal claims customers may have in case of late objections shall remain unaffected.

4.3 Force majeure

schalk&friends shall not be obligated to provide services in the event and for the duration of force majeure. Force majeure shall especially include (i) a strike in schalk&friends’ business operations, (ii) a lockout in schalk&friends’ business operations, (iii) failure of or delay by schalk&friends suppliers to perform caused by force majeure, (iv) power failures and interruption or destruction of data lines not under schalk&friends control, (v) official or regulatory orders for which schalk&friends cannot be held responsible and (vi) assaults and attacks (e.g. malicious software such as viruses or DoS attacks) which schalk&friends could not have prevented even given reasonable care under the circumstances of the attack. Force majeure shall not be excluded solely because schalk&friends is obligated to the implementation of security measures. schalk&friends shall notify customers in reasonable time following force majeure, including any expected resumption of service.

4.4. Customers’ duty to cooperate

4.4.1. proper and timely provisioning of schalk&friends services will be subject to the timely cooperation of customers as contractually agreed. schalk&friends shall not be obligated to provide services to the extent to which such services depend on customers’ prior cooperation over such periods during which customers fail to cooperate properly as required under the contract. Customers shall accept disadvantages and bear additional costs insofar as these are due to their failure to cooperate.

4.4.2 Customers shall designate a contact person for schalk&friends, authorised to, within reasonable time, make or effect any binding decisions as required in terms of the performance of contracts. Customers shall also be responsible for the timely provisioning of data to process and for their completeness and correctness; including reasonable checks on the completeness and correctness of the results of work.

4.4.3. customers shall assert comprehensible and detailed claims for defects in schalk&friends services in writing or in text form, including all information relevant to the identification of defects and specifically also detail the working steps giving rise to occurrence of the specific defect, including its appearance and effects.

4.4.4. customers shall in cases where schalk&friends does not undertake to include storage and backup or archiving of their data be responsible for the reliable backup of their own data at intervals appropriate to the application and to ensure that data may be recovered without undue effort.

4.4.5 Customers shall bear all costs

  • they incur by the use of telecommunication or other third party services and
  • they incur by procurement and maintenance of IT infrastructures they require when using our services.

4.4.6 Customers shall ensure that websites and accessible content schalk&friends may maintain for them will not violate relevant legal regulations or third party rights. Customers shall, in particular, also provide legal information to satisfy the requirements of tele-media legislation and shall also ensure that copyright and/or licencees are included, including protection against the removal or deletion of such copyright and/or licensing information.

5. General provisions

5.1. Applicable law

Contracts schalk&friends conclude with customers shall be subject to the laws of the Federal Republic of Germany, excluding renvoi and referral and excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

5.2. Amendments and supplements to contracts

Amendments and supplements to contractual provisions shall, for evidential purposes, be in writing. This shall also apply to the cancellation of this clause. Either party may request that amendments or supplements to the contractual provisions be recorded in writing.

5.3. Written form

Assurances of properties by schalk&friends as well as customer statements concerning reminders, setting of deadlines, objections, discounts, withdrawal, cancellation or assertion of compensation for damages shall require the written form to be effective.

Where the parties have agreed or will in future agree that statements shall be in writing to be effective, electronic transmission via telefax or, for contracts, communication in writing, shall be deemed compliant with this requirement. § 127 Para. 2 and 3 BGB [German Civil Code] shall for the rest, however, not apply.

5.4. Place of performance and jurisdiction

The place of performance for provisioning of schalk&friends services and payment to schalk&friends shall be the registered office of schalk&friends.

The place of jurisdiction for all disputes arising from or in connection with a contract between schalk&friends and customers who are merchants, legal entities under public law or special funds under public law shall, at the discretion of schalk&friends, be either the registered office of the specific customer or the specific registered office of schalk&friends. The specific registered office of schalk&friends shall, notwithstanding the above provision, serve as the exclusive place of jurisdiction for actions against schalk&friends based on disputes relating to said provision. The agreement on the place of jurisdiction shall not apply if an exclusive place of jurisdiction is mandatory for an action.

5.5. Partial ineffectiveness

Should a provision under this contract be ineffective in whole or in part, the legal effectiveness of the remaining provisions under this contact shall not thereby be affected.

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