Terms and Conditions

1. Scope of General Terms and Conditions

1.1. These General Terms and Conditions (GTC) govern the provision or execution of all current and future services and deliveries of the contracting parties.

1.2. The deliveries, services, and offers of Fokus MSP are based on these GTC. Purchasing or other conditions of the Partner are not recognized by Fokus MSP and are hereby objected to.

1.3. Separate contracts are concluded for the respective services and deliveries. The contracts require written form and are agreed on the basis of these GTC.

2. Conclusion of Contract

2.1. Unless otherwise agreed in individual cases, contracts have an initial minimum term of 12 months. After that, termination is possible with four weeks' notice to the end of the month. The right to extraordinary termination remains unaffected. Terminations must be made in text form by email or letter.

2.2. The offers of Fokus MSP are non-binding unless expressly agreed otherwise. The contract is concluded through Fokus MSP's acceptance, in particular through order confirmation or service provision. The order confirmation is only valid on the condition that any outstanding payment arrears of the Partner have been settled.

2.3. Illustrations or drawings from the respective offer documents contain only approximate values.

2.4. The Partner must notify Fokus MSP in writing of any special requirements before conclusion of the contract. Such notifications do not, however, extend the contractual obligations and liability of Fokus MSP. In the absence of other express agreements, Fokus MSP is only obligated to provide the ordered services.

2.5. The Partner offers the services and products in its own name and for its own account to its end customers. It acts as an independent merchant.

2.6. Neither party is authorized to make statements or commitments on behalf of the other party without prior written consent.

2.7. The products and services offered change regularly due to their technical nature. Fokus MSP therefore reserves the right to further develop its products, but also to remove components from the portfolio and/or replace them with new products.

2.8. The Partner will observe the laws of fair competition and the regulations relevant to the distribution and products and services used, protected product names, and the intellectual property rights and copyright notices and not remove them.

3. Liability for Material and Legal Defects

3.1. Fokus MSP will support the Partner in cooperation with the respective manufacturer to remedy defects that have occurred at an end customer or the Partner within a reasonable time. The remedy of defects may be through delivery of an update or workaround. Otherwise, the statutory provisions apply with respect to liability for material and legal defects.

3.2. The above provisions do not apply to claims for damages, fraud, and assumption of a guarantee. In these cases, the statutory provisions on limitation apply.

3.3. The Partner is obligated to inspect the services delivered under this agreement immediately after delivery. Obvious defects must be reported in writing immediately after inspection. In case of breach of the duty to inspect and report, the delivered services shall be deemed approved with respect to the defect in question. Section 377 of the German Commercial Code (HGB) applies to the services provided by Fokus MSP.

3.4. Obvious defects must be reported to Fokus MSP immediately, but no later than 14 days after receipt of the contract products in writing. Hidden defects must be reported to Fokus MSP immediately, but no later than 7 days after discovery of the defect in writing.

3.5. In case of defects, Fokus MSP may first provide supplementary performance. Supplementary performance is at the choice of Fokus MSP through elimination of the defect or delivery of a defect-free product. Supplementary performance also includes the delivery of updates that do not contain the defect, or a workaround that circumvents the defect.

3.6. If supplementary performance fails, the Partner may, at its choice, reduce the purchase price or, insofar as the defect only insignificantly impairs the contractual use of the contract product, withdraw from the contract for the defective contract product. Failure of supplementary performance is only to be assumed when Fokus MSP has been given sufficient opportunity for supplementary performance within a reasonable period by the Partner without achieving the owed result. The provision of a solution that circumvents the defect (workaround) is to be taken into account when assessing the period.

3.7. Fokus MSP is not liable insofar as the use of the products is impaired due to improper installation, operation, or maintenance. Liability is excluded for impairments attributable to the products being used under conditions that do not meet the requirements of the software specified in the documentation accompanying the product or through other communications from the manufacturer or Fokus MSP.

3.8. Defect claims for contract products expire within 12 months of delivery of the contract product. Excluded from this are claims for damages and defect claims in cases of fraudulent concealment of a defect.

3.9. Claims for damages due to defects are only available to the Partner insofar as the liability of Fokus MSP is not excluded or limited according to these terms and conditions.

3.10. Insofar as the Partner's customer purchases a contract product for a purpose that can be attributed neither to their commercial nor to their independent professional activity, the Partner is entitled to take recourse against Fokus MSP in accordance with the statutory provision of supplier recourse (§ 478 BGB). If a justified case of supplier recourse exists, the restrictions on defect liability contained in this contract do not apply.

3.11. Fokus MSP is liable for damages from any legal basis in amount according to the following provisions: Fokus MSP's liability for damages caused intentionally or through gross negligence by Fokus MSP or its vicarious agents or legal representatives is unlimited in amount. For damages resulting from injury to life, body, or health, Fokus MSP's liability or that of its legal representatives or vicarious agents is unlimited in amount regardless of the degree of fault. Liability is also unlimited for damages attributable to serious organizational fault of Fokus MSP, as well as for damages caused by the absence of a guaranteed quality. In the case of breach of contractual obligations by Fokus MSP whose fulfillment is essential for the proper execution of the contract and whose violation endangers the achievement of the contract, Fokus MSP's liability is limited to the foreseeable damage typical of the contract if none of the aforementioned cases apply. Any further liability for damages is excluded, in particular liability for damages without fault and liability for lost profits. Liability under the Product Liability Act remains unaffected. If damage is attributable to both fault of Fokus MSP and fault of the Partner, the Partner must accept its contributory negligence. The Partner is responsible for regular data backup. In the event of data loss caused by Fokus MSP, Fokus MSP is therefore exclusively liable for the costs of duplicating the data from the backup copies to be created by the Partner and for restoring data that would also have been lost even with proper data backup.

4. Infringement of Third-Party Property Rights

4.1. If the Partner becomes aware of a third party's claim that the use of a contract product infringes its property rights or those of third parties, it will immediately inform Fokus MSP. The legal defect liability of Fokus MSP remains unaffected by this.

5. Remuneration and Payment Terms

5.1. The price stated by Fokus MSP in the offer or order confirmation applies. Otherwise, unless otherwise agreed in writing, the price stated in Fokus MSP's price list on the day of order acceptance applies. Fokus MSP's prices are net, "ex works" plus statutory VAT.

5.2. Fokus MSP reserves the right to increase its prices accordingly if cost increases occur after conclusion of the contract, in particular due to collective bargaining agreements, material price increases, or exchange rate fluctuations.

5.3. Payments are due, unless otherwise agreed, nine days after the invoice date without any deduction. If the Partner exceeds the granted payment deadlines, Fokus MSP is entitled – notwithstanding further rights – to charge default interest of five percentage points p.a. above the respective base interest rate pursuant to Section 288 (2) BGB. All outstanding claims become due immediately in the event of the Partner's default. For direct debits not honored due to objection or insufficient funds, Fokus MSP charges, in addition to its own and third-party bank fees, a processing fee of EUR 15.00. Furthermore, Fokus MSP is entitled to suspend future deliveries and disconnect used services without further notice.

5.4. Offsetting is only permitted with counterclaims that are undisputed or legally established. The Partner also has no right of retention due to disputed counterclaims or claims from another contractual relationship or another order. Fokus MSP is entitled, regardless of the Partner's other provisions, to credit its payments first to older debts, then to any costs already incurred, then to interest, and finally to the principal claim.

5.5. All claims of Fokus MSP, including those for which installment payment has been agreed, become due immediately and the granting of a payment deadline becomes void if the payment deadline for a claim is not met or the Partner is in default or if an insolvency application is filed over its assets or if it has made an affidavit regarding its assets pursuant to Section 807 ZPO. In these cases, Fokus MSP is also entitled to make outstanding deliveries dependent on advance payment or security. If the advance payment or security is not provided even after expiry of a reasonable grace period, Fokus MSP may withdraw from the contract.

6. Delivery and Service Provision

6.1. The dates stated by Fokus MSP are always non-binding unless deadlines and dates are expressly agreed as binding. Performance/delivery periods begin, unless otherwise agreed, upon conclusion of the contract.

6.2. Fixed performance dates must be expressly agreed in documented form. The agreement of a fixed performance date is subject to the proviso that Fokus MSP receives the services of its respective suppliers and subcontractors on time and in accordance with the contract.

6.3. Fokus MSP is entitled to engage third parties as subcontractors for all obligations and/or to involve them in the provision of services. The Partner will not suffer any significant disadvantages from this.

6.4. If non-compliance with deadlines is due to force majeure, e.g., mobilization, war, unrest, or similar events not attributable to the seller, e.g., strikes or lockouts, the deadlines are extended by the periods during which the aforementioned event or its effects persist.

6.5. If the effort increases due to a disruption, Fokus MSP may also demand remuneration for the additional effort, unless the Partner is not responsible for the disruption and its cause lies outside their area of responsibility.

6.6. Fokus MSP provides the contractually agreed services in accordance with the principles of proper professional practice. The Partner bears responsibility for success and project management, unless otherwise contractually agreed.

6.7. Compliance with deadlines for deliveries of products or services requires the timely receipt of all information, documents, and approvals to be provided by the Partner, as well as compliance with the agreed payment terms and other obligations by the Partner. If these requirements are not met, the deadlines are extended accordingly.

6.8. Fokus MSP's service obligation is suspended in cases of force majeure and in the case of incorrect or untimely self-supply by Fokus MSP's suppliers not attributable to Fokus MSP. In these cases, Fokus MSP is entitled to postpone performance as long as these events persist. In the event of a permanent or more than six-month service disruption, both parties are entitled to withdraw from the contract in whole or in part. Fokus MSP will inform the Partner immediately of the unavailability of the service in this case.

6.9. In the case of productive use of work contract services by the Partner, this shall be deemed acceptance. In such a case, no express written acceptance is required.

7. Contract and License Terms for Third-Party Services

7.1. Insofar as third-party services are used, the product use and license terms of the third party apply. A modification of the product use and license terms of third parties does not occur through this contract and is not intended. The product use and license terms of third parties as well as the respective service descriptions of the third parties apply exclusively to the third-party services, in this case taking precedence over these GTC. The Partner receives the third-party services in accordance with the third party's service description.

8. Confidentiality and Data Protection

8.1. Both parties mutually commit to keeping confidential from third parties knowledge about the products and services as well as trade secrets that they learn about each other in the execution of this contract and all knowledge that is not generally known, and to obligate their employees accordingly. The parties are aware that electronic and unencrypted communication (e.g., by email) is subject to security risks. In this type of communication, they will therefore not assert any claims based on the lack of encryption, except insofar as encryption was previously agreed upon.

8.2. The parties will observe the respectively applicable, in particular the data protection regulations valid in Germany, and oblige their employees deployed in connection with the contract and its execution to data secrecy under Section 5 BDSG, insofar as they are not already generally obligated accordingly.

9. Partner's Cooperation Obligations

9.1. The Partner is obligated to support Fokus MSP and to create all necessary conditions for proper order execution in its operational sphere, e.g., the required operating and deployment conditions for hardware and software. To this end, it will in particular make necessary information available. The Partner ensures that qualified personnel is available to support Fokus MSP.

9.2. The Partner must report disruptions to Fokus MSP in a comprehensible and detailed form, providing all information relevant for disruption detection and analysis in text form within 24 hours. In particular, the work steps that led to the occurrence of the disruption, the manifestation, and the effects of the disruption must be stated. When describing, narrowing down, determining, and reporting errors, the Partner must follow the instructions given by Fokus MSP.

9.3. The Partner commits to ensuring through appropriate technical and organizational measures that the intended use of the software is guaranteed. Fokus MSP may demand additional remuneration for its effort based on its current price list, insofar as: a) it becomes active based on a report without a defect being present, unless the Partner could not recognize with reasonable effort that no defect existed, or b) a reported disruption is not reproducible or otherwise demonstrable by the Partner as a defect, or c) additional effort arises due to improper fulfillment of the Partner's obligations.

9.4. The Partner notifies Fokus MSP of any change in employees and users of the services to be provided by Fokus MSP, insofar as these are relevant for Fokus MSP's service provision. The additional costs arising from changes are borne by the Partner.

9.5. The Partner ensures that the use and storage of private data, for example private employee data, on systems operated by Fokus MSP does not create legal risks for Fokus MSP. Insofar as claims are made against Fokus MSP due to used or stored private data, the Partner will indemnify Fokus MSP against all claims. If Fokus MSP suffers damages due to non-compliance with the foregoing, these are to be compensated by the Partner.

9.6. Changes to Fokus MSP's services or to the IT infrastructure operated by Fokus MSP by the Partner are only permitted after prior coordination with Fokus MSP. Insofar as uncoordinated changes lead to additional effort at Fokus MSP, these are to be remunerated by the Partner according to the price list valid at the time of service provision. Damages caused by uncoordinated changes are also to be paid by the Partner. For uncoordinated changes that cause disruptions in the IT infrastructure operated by Fokus MSP within 24 hours, it is presumed that the additional effort or damages and other consequences were caused by the changes. The Partner may provide evidence that the changes were not causal.

9.7. If third parties commissioned by the Partner make changes to Fokus MSP's services or to the IT infrastructure operated by Fokus MSP that have not been coordinated with Fokus MSP, Fokus MSP is not responsible for downtimes, disruptions, and damages, and the Partner bears the additional effort arising at Fokus MSP.

9.8. The Partner will not use any services, scripts, or similar that – including through the included software – could adversely affect data security and data flow in Fokus MSP's communication network. If programs, scripts, or similar installed by the Partner endanger the operation of Fokus MSP's communication network, that of the third-party provider, or the security and integrity of other objects/customers/services, Fokus MSP may, also taking into account the legitimate interests of the Partner, temporarily suspend the connection of the IT system to the communication network in whole or in part with immediate effect. In this case, the Partner will be notified. A new connection can only be made when the aforementioned complications have been resolved. Fokus MSP is not liable for any damages resulting from the suspension of the connection for this reason.

9.9. Insofar as the contractual relationship or parts of the contractual relationship end, the Partner will delete the software provided by Fokus MSP. The connection to the data center will be terminated immediately by the Partner. The Partner has no claim to the release of data that arose through the use of software that was made available.

10. Transfer of Rights

10.1. The Partner may only assign or transfer rights from the contract to third parties with the prior consent of Fokus MSP. Fokus MSP is entitled to transfer all obligations and rights arising from the contracts to third parties.

11. Final Provisions

11.1. In the interpretation of this contract, the following rules apply in the order stated: a) The offer of Fokus MSP, b) these GTC, c) the provisions of the BGB and HGB, d) other statutory provisions.

11.2. Both parties commit to immediately notifying the other party of any changes of address.

11.3. Cancellations, amendments, and supplements to the contract as well as all legally relevant declarations of the contracting parties require written form.

11.4. The parties agree with regard to all legal relationships arising from this contractual relationship to the application of the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

11.5. If the Partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the registered office of Fokus MSP is agreed as the exclusive place of jurisdiction for all legal disputes arising from and in the course of the execution of this contractual relationship.

11.6. Should individual provisions of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby.

Last updated: April 2021