Terms and Conditions

§ 1

1.1.1
The following general terms and conditions (GTC) form part of all legal transactions with OMG E-Commerce GmbH (hereinafter „OMG“). We do not recognise any conditions of the customer that conflict with or deviate from our GTC unless we have expressly agreed to their validity in writing. Any purchasing, procurement or other general terms and conditions of the customer shall not apply even if the customer refers to them and OMG does not object again expressly. Our GTC also apply exclusively if we render services without reservation in the knowledge of conflicting or deviating conditions of the customer.

1.1.2
Individual agreements made with the customer in a particular case (including ancillary agreements, supplements and amendments) shall in any event take precedence over these GTC. A written contract or our written confirmation is decisive for the content of such agreements.

1.2
OMG is entitled to transfer the performance of contractually agreed (partial) services to third parties. OMG is entitled to use third parties as vicarious agents in order to fulfil the obligations arising from the contractual relationship. Even in this case, however, OMG remains responsible as contact and contractual partner for the fulfilment of the contractual obligations.

1.3
For third-party products, the licence and terms of use of the respective standard software and/or hardware manufacturers/suppliers take precedence over these GTC. The respective conditions of the manufacturers/suppliers will be made available to the customer on request. Third-party products within the meaning of these GTC means hardware, software and/or other products or services of manufacturers/suppliers that OMG makes available to the customer under the contract. OMG is entitled to supply programme, installation and product documentation as well as other documents in the English language, provided these are not available in German.

1.4
Employees of OMG are at all times, including when deployed at the customer’s site, subject to the sole right of instruction and direction of OMG where necessary. Where work has to be carried out on the customer’s premises in the course of performing the contract, the customer will grant OMG’s employees unhindered access during normal business hours and make premises and working materials available to them to an appropriate extent.

1.5
The place of performance is the respective location of OMG unless otherwise agreed. OMG renders the contractually agreed services in accordance with the principles of proper professional practice, using qualified personnel.

1.6
Legally relevant declarations and notices that the customer must make to us after conclusion of the contract (e.g. setting of deadlines, notices of defects, declaration of withdrawal or reduction) require written form or text form in order to be effective.

1.7
References to the applicability of statutory provisions are of clarifying significance only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.

1.8
Contracts which contain services of different legal natures are mixed contracts. Their legal nature is determined by the economic focus of the overall performance owed; if no such focus is discernible, the various services shall be treated in accordance with their respective legal nature.

1.9
Consulting, installations, software support, service work, maintenance work and remote maintenance services are provided exclusively under the law governing contracts for services pursuant to Sections 611 et seq. BGB.

1.10
Contracts for hosting services are, depending on the type and focus of the service, contracts for services (Sections 611 et seq. BGB), lease agreements (Sections 535 to 580a BGB) or mixed contracts concerning a continuing obligation.

1.11
Services under a contract for work (Sections 631 et seq. BGB) exist only insofar as, at the time the contract is concluded, the criteria decisive for the description of the success owed with regard to quantity, scope and effect have been specifically and conclusively defined and agreed at least in text form.

1.12
These Terms and Conditions apply only to customers who are entrepreneurs, legal persons under public law or special funds under public law; they do not apply to transactions with consumers.

1.13
The General Terms and Conditions, in their respective version, shall also apply as a framework agreement to future contracts for the sale and/or supply of services and products of OMG, without our having to refer to them again in each individual case; we shall inform the customer without undue delay of changes to our General Terms and Conditions in this case. The respectively current and valid version is published on the internet at www.omg-e-commerce.com.

1.14
OMG assumes guarantees for the quality of the deliveries, services and work results only insofar as guarantees have been expressly agreed in writing between the parties. Insofar as the terms „assures“, „to ensure“, „ensures“, „guarantees“ or comparable terms are used in offers, contract documents or other documents, the parties agree that these do not constitute assurances or guarantees the non-compliance with which leads to unlimited liability irrespective of fault. The parties further agree that agreed response and restoration times and agreed availabilities do not constitute guarantees.

§ 2 Offer

2.1
The type and scope of the services to be performed as well as the remuneration for OMG shall be determined by separate agreement or by an offer. Unless otherwise agreed, offers are valid for 4 weeks. The scope of the contractual services results from the service description, from the information referring thereto in the order confirmation and/or from an agreement to be attached to the contract separately.

2.2
OMG shall be bound by specially prepared offers in accordance with the statement made in the offer. OMG reserves the option of partial deliveries insofar as these are reasonable for the customer. In the case of orders for the individual requirements of the customer, OMG reserves the right to deviate from cost estimates made in advance if, after placing the order, the customer makes use of services going beyond these.

2.3
In addition, the customer shall inform OMG in good time and without any special request of processes and circumstances which lie within its sphere of responsibility and which may evidently be of significance for the execution of the order.

2.4
The documents belonging to an offer of OMG are not warranties of quality unless they are expressly designated as such in writing.

2.5
OMG reserves the right to make changes to products and services at any time without prior notice, in particular on account of technical progress.

2.6
Insofar as OMG specifies Monday to Friday (Mon-Fri) as a period in the respective contract, public holidays applicable throughout Germany, public holidays in the Free State of Bavaria under the Act on the Protection of Sundays and Public Holidays (Feiertagsgesetz) and 24 and 31 December are excluded, unless they are expressly included.

2.7
The place of performance for all deliveries and services is Munich.

2.8
Public statements, e.g. advertising statements by OMG, the manufacturers, third parties or suppliers, do not constitute a contractually agreed quality.

§ 3 Subsequent Changes

3.1
The customer may commission OMG with subsequent changes to the content and scope of agreed services, provided that this is reasonable for OMG and, if other contractual provisions are affected by such changes, agreement has also been reached on these.

3.2
If changes affect other contractual provisions (e.g. prices, performance deadlines, acceptance modalities), the contracting parties shall agree on the adjustment of the relevant contract necessitated by the change (e.g. price or schedule adjustments). Until such an agreement has been concluded, OMG shall continue the work in accordance with the previous agreement.

3.3
Should cost increases in relation to the total remuneration in the amount of more than 20 % (material overrun) arise after the order has been placed, OMG shall inform the customer thereof in writing or in text form without undue delay after becoming aware of the circumstance causing the increase. In the case of unavoidable cost overruns of up to 20 % (immaterial overrun), a separate notification to the customer is not required and these additional costs may be invoiced.

§ 4 Risk of the Transfer

Upon handover of sold products to the customer, the risk of accidental loss and accidental deterioration passes to the customer, irrespective of any work performances and or services still to be rendered in connection with the sold products. It is clarified that the purchase of products and the rendering of any services and/or work performances each constitute separate legal transactions.

§ 5 Obligations of the Customer to Cooperate

5.1
The customer shall offer OMG all necessary cooperation, information, data as well as documents which OMG requires for the fulfilment of the contractual obligations. The customer shall ensure that all necessary data, documents and personnel are available in order to enable the contractual services of OMG, or the acceptance, at the agreed time.

5.2
The customer shall provide all necessary data and information completely and truthfully and shall notify changes promptly. Changes requested by the customer extend the performance period by a reasonable period then to be agreed. The customer is in particular obliged

5.2.1
to make available to OMG, free of charge, all information, templates and documents which OMG requires in order to perform the contract;

5.2.2
to support OMG in the performance of the contract free of charge and to a reasonable extent, by the customer creating all conditions within its operational sphere which are necessary for the performance of the contract;

5.2.3
to coordinate the dates and meetings necessary for the performance of the contract with OMG in an appropriate manner and, in cases of doubt, to consult with OMG in good time;

5.2.4
to take account of the principles of data protection and data security, in particular to keep all transmitted passwords secret or to change them without undue delay or to arrange for changes if there is a suspicion that unauthorised third parties have obtained knowledge of them.

5.2.5
Further specific obligations of the customer to cooperate are laid down in the respective contract.

5.3
As long as the customer does not fulfil its obligations to cooperate or does not fulfil them properly, the agreed deadlines shall be extended within a reasonable framework and OMG shall not fall into default, and any agreed availabilities carrying the consequence of contractual penalties shall be suspended. Expenses, costs, disadvantages and damages resulting from the breach of the customer’s obligations to cooperate shall be borne by the customer. Obligations to cooperate are primary performance obligations.

5.4
The customer undertakes to treat the passwords and access data sent to it as strictly confidential and to protect them from inspection by third parties. Should third parties use services of OMG without authorisation as a result of fault on the part of the customer, or should OMG suffer damage of any kind, the customer shall be liable in damages. OMG assumes no liability for damage incurred by the customer as a result of disregard of this obligation.

5.5
The customer shall be liable for all consequences and disadvantages which arise for OMG through the abusive or unlawful use of the work results, the services, or through the customer failing to comply with its other obligations. OMG is not responsible for damages, expenses and other claims as well as limitations of the work results or services and other disadvantages which have been caused by the service providers of the customer. The customer shall indemnify OMG on first demand against all damages, expenses and costs which have been caused by the respective service provider of the customer.

§ 6 Acceptance

6.1
In the case of contracts for work, the customer is obliged to accept. The customer is obliged to carry out partial acceptances of economically separable parts of the work. Insignificant deviations from contractual specifications do not entitle the customer to refuse acceptance.

6.2
If OMG notifies the customer in text form of the completion of a work performance and the customer does not report any more than insignificant defects within a period of four weeks after notification of completion, the work performance shall be deemed accepted.

6.3.1
Acceptance takes place by means of a declaration of acceptance within a reasonable period after notification of the completion of the (partial) work. It is equivalent to acceptance if the customer uses the (partial) performance productively or does not report any material defects within a reasonable acceptance period set for it by OMG.

6.3.2
The customer is obliged to check the services and work results of OMG as to whether the service provided or the work result corresponds to the functionalities defined in the specification.

6.3.3
If the service or the work result has passed the acceptance tests, the customer is obliged, upon request, to issue a declaration of acceptance in text form or in writing without undue delay. All deviations or errors identified shall be recorded without undue delay as defects, taking into account any changes agreed subsequently. The list of defects shall be drawn up jointly and by mutual agreement by representatives of both contracting parties.

6.4
Acceptance may not be refused on account of insignificant defects. OMG may set a reasonable period for acceptance, after the expiry of which the service or the work result shall be deemed accepted. The parties shall agree in the acceptance record how and within what time the defects are to be remedied. Unless otherwise agreed, the remedying of these defects shall be commenced as quickly as possible.

§ 7 Creation and Modification of Internet Pages

7.1
The following special conditions apply to the creation and modification of internet pages by OMG.

7.1.1
The subject matter of the contract is the development of a concept and the creation of a website by OMG for the customer, with which the latter can appear on the internet. The customer shall itself provide for the placing of the website on the internet, the permanent storage of the website on a server (hosting), the procurement of an internet domain as well as the provision of access to the World Wide Web (access providing), unless otherwise agreed between the parties. If the creation or modification of internet pages is agreed, the customer shall receive a simple right of use in these, which entitles it to use them for the contractually agreed purposes. If a purpose is not expressly agreed, the purpose shall be deemed to be the presentation of the customer on the internet.

7.1.2
OMG shall first draw up a project plan for the website; the project plan may also already be defined within the framework of the offer or the individual contract; OMG and the customer shall define by mutual agreement whether and to what extent the project plan is to be prepared. The project plan is based on the specifications of the customer with regard to the scope, the functionality and the structure of the website. OMG shall support the customer in an appropriate manner in the development and concretisation of the customer’s specifications. The project plan shall set out, to an appropriate extent, both the requirements for the graphic design of the website and the requirements applicable to the software programming. On the basis of the project plan, OMG shall first develop a concept for the structure of the website. After the concept for the website has been created by OMG, the customer is obliged to examine it carefully and conscientiously. If the concept essentially meets the requirements, the customer is obliged to approve the concept by declaration in text form.

7.1.3
After completion of the concept and its approval by the customer, OMG shall create a layout version of the website on the basis of the approved concept. The layout version must make the structure of the website recognisable, contain the essential design features and have the necessary basic functionalities. After the layout version has been created by OMG, the customer is obliged to examine it carefully and conscientiously and to grant approval in text form. Insofar as errors are recognisable, the customer shall notify OMG thereof.

7.1.4
After completion of the layout version and its approval by the customer, OMG shall create the final version of the website. This must be fully functional. After completion of the final version, the customer is obliged to accept the website, provided that the website is essentially functional and free of defects. The customer shall inspect the website without undue delay after delivery or after it has been made accessible on the internet by OMG, insofar as this is practicable in the ordinary course of business, and, if a defect becomes apparent, shall give notice to OMG without undue delay. If the customer fails to give such notice, the website shall be deemed approved, unless the defect concerned was one which was not recognisable during the inspection. The customer accepts the website tacitly if it puts the website into use and places it online, not merely for test purposes. The declaration of acceptance is to be produced in text form.

7.1.5
After acceptance of the final version of the website by the customer, OMG is obliged to make the website accessible to the customer on a suitable data carrier or on a server designated by the customer, insofar as the parties have not made any provision to the contrary.

7.2
The internet pages designed or created within the framework of an offer or an order are protected by copyright, including the individual components. OMG shall make the internet pages available to the customer on a suitable data carrier, by e-mail or by transfer to an internet server.

7.3
The internet pages are composed of individual files of particular file formats and are created on the basis of the descriptions specified in the contract. The customer shall support OMG in the creation of the concept in order to enable OMG to produce a detailed conception. OMG is entitled to take independently all decisions necessary for the creation of the internet pages, in particular the choice of programming technique as well as the precise configuration and implementation of the graphic design, unless a special agreement with the customer exists in this respect.

7.4
With regard to the creation of the internet pages, the customer may notify OMG of change requests at any time. In this respect OMG shall submit to the customer an offer for the modification of the internet pages against payment, unless another agreement has been made.

7.5
Owing to the manifold configuration options of browsers and internet terminals, it cannot be avoided that the presentation and functionality of the internet pages deviate from the agreement in the case of a particular configuration. The obligation of OMG to perform is therefore limited to creating the internet pages in such a way that with the most frequently used configurations at the time of completion they comply with the agreed criteria. The obligation to perform extends to all common browsers in the respectively current version or versions which are a maximum of six (6) months old, unless otherwise agreed in the individual contract; common browser versions are browsers with a distribution of at least 10% market share of internet usage in the Federal Republic of Germany.

7.6
Owing to the differing ranges of services of the internet providers, OMG is not obliged to create the internet pages in such a way that they are also displayed or function without errors when they are published on an internet server other than the one designated in the contract.

7.7.1
The customer is obliged to make available to OMG, free of charge and in good time, all materials and information which are necessary for the performance of the contract. The customer warrants that all materials made available by it do not infringe applicable law and are free of third-party rights. If any required material is made available by OMG, the customer assumes full liability, by means of the final confirmation of the service (approval for publication or for placing online), for the use of the material effected at its request.

7.7.2
The customer assures OMG that it is entitled to use all texts, images, media etc. handed over. Insofar as copyrights and/or other industrial property rights of third parties exist in the material provided, the customer shall ensure that it is in possession of the licences necessary for the performance of the order, in particular that it is entitled to digitise images, photographs, films, logos, marks and other depictions, designs and information, to incorporate them into the programming and to use them as part thereof and/or to grant these powers to OMG for the performance of the order.

7.7.3
If, after a deadline has been set by OMG, the customer does not make available in due time the content necessary for the rendering of the services, OMG is furthermore entitled – but not obliged – to design the content of the internet pages in this respect at its own discretion to an extent reasonable for the customer, or alternatively to withdraw from the contract after the deadline set has expired without result. If OMG withdraws from the contract for the reasons stated in this paragraph, the customer shall pay OMG the remuneration in full for the services rendered up to that point in time. Claims of OMG for compensation pursuant to Section 642 BGB as well as any further claims for damages remain unaffected thereby.

7.8
OMG reserves the right to name the customer as a reference customer in all media and to refer to its internet pages. OMG may furthermore publicly reproduce the services rendered for demonstration purposes or refer to them, unless the customer can assert a conflicting legitimate interest. The customer is obliged to tolerate a reference to OMG to an appropriate extent on the internet pages which it is entitled to use. This reference may be combined with a link to the internet pages of OMG. The customer additionally grants OMG the right to use the images of and from the joint project for its reference list and to present them – in particular in the form of screenshots – on its website, stating the name of the customer and the task. The images may additionally be used in all media including the internet, social media and within the framework of competitions and presentations. The customer hereby assures that it is entitled or authorised by the authors involved in the images to grant these rights of use.

7.9
The customer undertakes not to offer or distribute copyright-protected content without authorisation. Corresponding links are also prohibited. In the event of a breach, OMG is entitled to block the server or the homepage with immediate effect and has an immediate right of termination.

7.10
OMG expressly points out that the contractual partner alone is responsible for a comprehensive trade mark search. OMG is not obliged to check for any legal infringements on the part of the contractual partner.

7.11
In designing the content of its internet pages, the customer must comply with the statutory requirements. This applies in particular to the prohibition on the dissemination of pornographic content and content harmful to minors, the prohibition of left-wing or right-wing extremist propaganda, the prohibition on offending common decency, as well as the prohibition on infringing the rights of third parties (in particular trade mark and name protection rights as well as copyrights, among others). OMG is entitled to block and delete the aforementioned content immediately without separate notification.

7.12
Any content and designs proposed by OMG for the fulfilment of legal obligations (legal notice, data protection information and the like) are to be understood exclusively as sample texts which have not been legally reviewed and leave untouched the clarification duties incumbent on the customer.

§ 8 Rendering of IT and Website Consultancy Services

The following special conditions apply to IT and website consultancy and support services rendered by OMG.

8.1
OMG renders consultancy and support services in the areas of IT services, website design/conception and project management as well as associated development and adaptation consultancy services. OMG renders these consultancy and support services as services under a contract for services (Section 611 BGB); in doing so OMG assumes – subject to any agreements to the contrary – no warranty for the occurrence of a particular success. Insofar as the customer and OMG wish to agree services under a contract for work, this must be expressly stipulated; in this case the production of a work on the basis of the agreed specifications is owed.

8.2
The corresponding advisory services to be rendered by OMG comprise in particular the analysis of the IT deployed at the customer’s premises or of the website used (to date/in future); the determination of which parts of the IT or of the website should be outsourced externally to service providers for the benefit of the customer; the development of a concept for the gradation between in-house and externally supported IT hardware and software; the description of the acquisitions and adaptations required in-house for the implementation of the concept; the drafting of a schedule and cost plan for the implementation of the concept; the selection of suitable concept providers; the examination and monitoring of the rendering of services by any third-party providers engaged, the participation in the acceptance and functional testing of the services of engaged third-party providers; the implementation of hardware and software into an existing system environment; the planning and design of IT environments, and advising the customer on all questions which may arise in connection with warranty, maintenance/servicing, system adaptation or system extension. The objective and scope of the task as well as the approach shall be agreed contractually in the individual case.

8.3.1
For successful cooperation within the framework of the advisory and support services, the cooperation of the customer is decisively dependent and its fulfilment of duties to cooperate is absolutely necessary for the success of the services of OMG is. The customer therefore undertakes to support OMG comprehensively in the rendering of the advisory and support services.

8.3.2
The customer shall make available to OMG the information required for the rendering of the services and shall in particular grant OMG access to all relevant data, files, documents and other materials. He shall in particular render his own preliminary services – insofar as required –, make available the necessary data and system information and, where applicable, provide and keep available keywords, passwords or other necessary access prerequisites. The customer shall grant OMG access to the necessary IT and website systems to the extent required for the rendering of the services, insofar as these already exist.

8.3.3
In order to enable the advisory and support services, the customer shall inform OMG as comprehensively as possible about the commercial, organisational, technical and competitive situation of his company. OMG shall also be informed, unprompted and as early as possible, of such circumstances as may be of significance for the project.

8.4.1
Where pure advisory services are owed by OMG and it is incumbent solely upon the customer to take the decisions to be taken on the basis of the advice in respect of its IT or website, OMG shall not be liable for the selection, introduction and design of the corresponding IT and website systems. Entrepreneurial risks shall be borne by the customer alone, in particular with regard to risks arising from decisions of entrepreneurial discretion taken or omitted by the customer.

8.4.2
If OMG prepares a report or other documents, these do not constitute an expert opinion but merely reproduce the essential content with regard to the course, the results and the recommendations of the advice. OMG shall render the advisory and support services professionally and in accordance with the current state of the art. However, a particular state of the art shall be owed exclusively where this has been separately agreed in the individual contract.

8.5
If OMG is obliged to remedy defects in its advisory services and the rectification of notified defects does not succeed within a reasonable period set by the customer, the customer shall be entitled to have the rectification carried out by a third-party company at the expense of OMG. The performance of the advisory services by OMG is only possible is, if the customer makes the necessary documents and information available to OMG in good time and in full. OMG shall not be liable to the customer for damage arising from the failure to meet deadlines and dates on account of lacking or insufficient cooperation.

§ 9 Hosting

The following special conditions shall apply to hosting services provided by OMG.

9.1.1
If OMG lets storage space on an internet server to the customer (hosting of a web server), OMG warrants accessibility of the web server on the internet of 95 per cent on an annual average. Excluded from this are periods during which the web server cannot be reached on account of technical or other problems which are outside the sphere of influence of OMG (force majeure, fault of third parties, etc.). In order to render hosting services for the customer, OMG for its part rents storage space on internet servers from third-party providers; accordingly, the licence and usage conditions of the third-party providers shall take precedence over these General Terms and Conditions. The respective conditions of the third-party providers shall be made available to the customer upon request. The customer shall ensure that the corresponding use by the customer does not give rise to an excessive load on the servers. In the event of a contravention, OMG shall be entitled, following corresponding notification to the customer, to take suitable countermeasures at its own discretion.

9.1.2
OMG points out that, according to the current state of the art, it is not possible to create hardware and software in such a way that it operates free of errors in all application combinations or can be protected against any manipulation whatsoever by third parties. OMG does not guarantee that hardware and software deployed or provided by OMG satisfies the requirements of the customer, is suitable for particular applications, and furthermore that it is crash-, error- and free of malware. OMG warrants to the customer only that hardware and software deployed or provided by OMG functions substantially in accordance with the specification of services at the time of transfer, under normal operating conditions and with normal maintenance.

9.2
Liability for damage caused by outages, in particular such damage in the form of data losses or aborted data transmissions, is excluded. This shall not apply to damage which is based on an intentional or grossly negligent breach of duty by OMG or its vicarious agents or on a breach of material contractual duties. In the latter case, however, liability shall be limited to the damage typical of the contract and foreseeable.

9.3
The customer has no claim to its own IP address, its own physical server or a fixed line capacity for data traffic (bandwidth), unless other agreements have been made.

9.4
OMG is not responsible for the content of the stored data of the customer. The customer shall regularly check the contents of the stored data originating from it for their accuracy and lawfulness. No examination is carried out by OMG. OMG is not obliged to check contents on web servers of the customer or on web servers made available by OMG for infringements. OMG does not check the contents of the customer as to whether claims asserted by third parties are justified or unjustified. The customer agrees to block access to its contents pending judicial clarification if claims by third parties are credibly asserted. The customer may not, by means of its internet presence and banners displayed thereon, contravene statutory prohibitions, public morals and the rights of third parties (copyright, trade mark, name and data protection rights, etc.). The customer may not register its internet presence with search engines if and insofar as the customer, through the use of keywords and similar techniques in the registration, contravenes statutory prohibitions, public morals and the rights of third parties. The customer is prohibited from sending any form of spam or other harmful or unlawful email (inter alia no consent of the recipient to the dispatch). In such a case OMG is entitled to block the servers immediately. When using the internet, the customer shall observe all applicable laws and other legal provisions of the Federal Republic of Germany. In the case of an international domain it must be noted that international laws may also have to be complied with. In the event of contraventions, or also in the event of substantiated significant grounds for suspicion thereof, OMG is entitled to block the respective service of the customer. In this case the customer shall remain obliged to pay the monthly prices. In the event of a breach of one of the aforementioned obligations, OMG shall be entitled to discontinue its services with immediate effect or to block access to the information of the customer.

9.5
The customer shall notify OMG of defects without undue delay and shall support OMG to the best of its ability in any possible remedying of defects, in particular shall take all reasonable measures for data security.

9.6
OMG reserves the right, as a matter of principle, to block contents which could impair the regular operating behaviour or the security of the server, or to prevent their operation in the individual case.

9.7
The customer undertakes to keep the programs and services stored by it within the framework of the hosting at all times up to the current state of IT security. This includes in particular software updates or migrations to more recent versions of programming languages/scripts. If the customer fails to make such necessary changes, OMG shall be entitled to deactivate the pages and services concerned, insofar as this is necessary in order to maintain the security of the entire system, including the servers of other customers of OMG and network availability. This may become necessary, for example, if the pages and services are no longer compatible with the current security standard following an update or a migration.

9.8
OMG shall inform the customer without undue delay of a blocking of a server or of the deactivation of a website or service by
OMG.

§ 10 Domain Registration

The following special conditions shall apply to a domain registration by OMG on behalf of the customer.

10.1
The success of a domain registration depends on the cooperation of the respective domain registration authority, with the result that OMG can in principle assume no warranty for this. OMG has no influence on the allocation of domains and can therefore not guarantee that the domain ordered will be allocated to the customer, is free of third-party rights or will endure permanently.

10.2
OMG commissions the domain registration for the customer via its registrar. The contractual relationship concerning the registration comes into being directly between the customer and the registration authority. The relevant registration conditions and guidelines of the respective registration authority or of the registrar shall therefore apply. Domains are registered in an automated procedure. The registration data are forwarded without warranty.

10.3
The customer assumes the warranty that the domain applied for by it via OMG does not infringe any rights of third parties. The customer agrees to block the domain pending judicial clarification if claims by third parties are credibly asserted. The customer agrees to all measures which OMG has to take in order to comply with enforceable orders or enforceable decisions. If it is credibly demonstrated by a third party that domains or contents infringe rights, or if an infringement of rights is deemed probable in the conviction of OMG on the basis of objective circumstances, OMG may temporarily block the contents and take measures to render the domain concerned unreachable.

10.4
The customer shall indemnify OMG, the respective Network Information Centre (NIC), the Internet Corporation for Assigned Names and Numbers (ICANN) as well as other persons involved in the registration against any claims for damages arising from an infringement of the rights of third parties by the contractual partner resulting from the domain registration.

10.5
Should the customer have registered a domain via OMG, it is itself responsible for all contents. It is also liable for the conduct of third parties, in particular of vicarious agents and persons employed in the performance of an obligation. The customer is obliged to cooperate in a reasonable manner in the registration, transfer and deletion of domains as well as in the amendment of entries in the databases of the registration authorities. If the customer waives a domain vis-à-vis the respective registration authority or the registrar, it shall notify OMG thereof without undue delay.

10.6
The customer shall indemnify OMG against any claims of third parties which may arise in particular from claims under trade mark and competition law which result from the domain registered for the customer.

10.7
Unless otherwise agreed, OMG is not obliged to back up customer data. If the customer commissions OMG with the data backup, the customer shall check the data backed up by OMG for completeness and suitability for data reconstruction promptly and at regular intervals. The customer shall notify OMG of irregularities without undue delay.

10.8
The termination of the contractual relationship with OMG shall in principle leave unaffected the registration contract concerning a domain existing in each case between the customer and the registration authority or the registrar; in this case, however, the customer is obliged to terminate the registration contract existing between it and the registrar, insofar as the domain is not to be transferred to another provider. Termination instructions concerning the registration relationship must nevertheless be addressed to OMG, since OMG administers the domain for the domain holder and communications of the domain holder, including terminations of contract, are as a rule to be forwarded via OMG to the respective registration authority or the registrar.

§ 11 Online Marketing

The following special conditions shall apply to online marketing measures by OMG.

11.1
If marketing services (e.g. search engine marketing) are agreed, OMG acts on behalf of the customer. Marketing services include, inter alia, the following services:

11.1.1 Search Engine Optimisation
a) Search engine optimisation is the analysis and processing of the internet presence of the customer with the aim of achieving or maintaining a better positioning in search engines such as, for example, Google.
b) In the case of search engine optimisation, OMG owes the processing of the website of the customer with the aim that these changes result in the website leading to high positions in the results list in the search engines for certain search terms. For this purpose the parties shall agree the objectives pursued (defined search terms/search term combinations) and OMG shall notify the customer of the most suitable and planned optimisation measures. The measures may, however, change at any time for various reasons (e.g. change of the search engine algorithm, change of the competitive environment of the customer, replanning by arrangement, etc.). Whether and in what manner changes to the envisaged measures are made shall be at the sole discretion of OMG. OMG is not obliged to carry out all of the services/measures listed in the specification of services or in the personal offer. Depending on the agreed budget and a change of circumstances, the forecast duration for measures initially planned, their significance and thus their order may change and, where applicable, measures initially planned may also be dispensed with entirely within the envisaged time frame/budget. In doing so, OMG shall perform its task to the best of its knowledge and belief for the benefit of the customer in accordance with the respective current state of the art corresponding to the current circumstances. For the reasons set out above, however, OMG can assume no warranty that the measures initiated will lead to a (lasting) inclusion or improvement of the website of the customer in the search engine search lists.

11.1.2
Google Ads, Facebook, Instagram and other social media (hereinafter jointly, with the exception of Google Ads, “Social Media”) advertising measures
a) Google Ads and social media advertising measures comprise the conception, creation and optimisation of the Google Ads and social media advertising campaigns of the customer;
b) In the case of Google Ads or social media advertising measures, OMG owes, depending on the agreed scope, in addition to the administration of the agreed daily budget, the creation of a Google Ads or social media account and or, if an account already exists, only the ongoing modification/adaptation of the account created or existing with the aim of optimisation (i.e. an improvement of the performance figures such as, for example, ad rank, click rate). OMG can, however, give no warranty for an actual optimisation, since the success of the optimisation measures taken depends on a multiplicity of constantly changing factors.

11.1.3 Online Advertising Measures
a) Online advertising measures comprise the carrying out of advertising measures, in particular in the form of online banner advertising.
b) In the case of online advertising measures, OMG owes, depending on the order, the placement of advertising media on of marketing companies affiliated with OMG. What is owed in this respect is merely the delivery of the agreed type and number of advertising media with the parameters/specifications agreed in the order. Unless expressly stipulated otherwise in the order, the customer has no claim to a particular placement of the advertising media on particular websites in the agreed environment/channel and to a particular duration of the display of the advertising medium. OMG does not guarantee any particular number of unique users, visits, page impressions, AdImpressions [visual contact per advertising medium on the website], AdViews [accesses of the internet page on which the advertising medium concerned is placed], AdClicks [clicking on the placed advertising medium] or a particular AdClick rate [ratio of AdViews and AdClicks].

11.2
The customer assumes full liability for the agreed marketing measures to be carried out. The customer shall indemnify OMG against any claims of third parties.

11.3
Film or image material made available by the customer within the framework of marketing services shall be used by OMG only to the exclusion of any liability risks. The customer warrants that all materials made available by it do not contravene applicable law and are free of the rights of third parties. If any required material is made available by OMG, the customer assumes full liability, by means of the final confirmation of the service, for the use of the material effected at its request.

11.4
If services in the field of so-called email marketing (e.g. newsletter dispatch) are commissioned, the customer assumes full liability for compliance with the statutory provisions prescribed for this purpose. In particular, the customer warrants that the dispatch to the intended email addresses and their use comply with the legal requirements.

§ 12 Software and Individual Software Programming Services

The following special conditions shall apply to software and individual software programming services by OMG.

12.1
If the programming or the renting of software is agreed, the order comprises exclusively the creation or the use of the respective software. The scope of services corresponds to the functions and characteristics set out in the offer. The customer is responsible for naming its wishes and ideas as specifically as possible. Unless otherwise agreed, the detailed specification of services shall be drawn up in cooperation between OMG and the customer.

12.2
Insofar as the requirements of the customer do not yet follow from the task definition according to the offer, OMG shall detail them with the support of the customer and shall draw up a specific specification thereof, which may be prepared in text form. The specificationis a binding stipulation for the further work. Thiscan be refined or amended in the course of the implementation of the software in coordination with the customer. If OMG recognises that the task definition is defective, ambiguous or cannot be carried out with reasonable work effort, he shall notify the customer thereof without undue delay. Thereupon the latter shall decide without undue delay on the further procedure.

12.3
An amendment of the task definition in whole or in part requires the consent of OMG and of the customer. OMG will consent to requests for amendment of the customer, insofar as this is reasonable for the latter in particular with regard to the effort and the scheduling. Insofar as the realisation of a request for amendment results in a greater work effort, the additional effort shall be invoiced to the customer and OMG may demand a reasonable postponement of the dates.

12.4
The customer shall name a responsible contact person who can take decisions or bring them about. The contact person shall record decisions in writing or by email. The contact person shall be available to OMG for necessary information. OMG will inform to the customer regularly of the status of the work and/or enable it to ascertain the current status of the work itself.

12.5
Insofar as a cause for which OMG is not responsible impairs compliance with the dates, OMG may demand a reasonable postponement of the dates. If the effort increases and the cause lies within the sphere of responsibility of the customer, OMG may also demand remuneration for its additional effort.

12.6
Any software support desired from OMG is not covered thereby and must in each case be agreed additionally.

12.7
The customer is obliged to cooperate in the creation of the software by providing the necessary particulars regarding the field of application and contents and by making the required data available in good time. The agreed specification of services is to be checked by the customer for accuracy and completeness and to be confirmed. Additional services on account of requests for amendment on the part of the customer or special requests which arise after conclusion of the contract, and exceed or alter the agreed framework require separate remuneration. These shall be itemised and invoiced to the customer, provided that the customer was previously notified of the additional effort and the costs arising therefrom.

12.8
OMG shall provide the customer with the subject matter of the contract in machine-readable form on the agreed data system or data medium or on that customary at that time.

12.9
OMG is in principle obliged to hand over the source and source code of the program to the customer, provided that no differing individual contractual arrangement has been made with the customer.

12.10
OMG transfers to the customer the rights of use required for the respective purpose, but not rights of ownership. Unless otherwise agreed in writing, the customer receives a licence of use, unlimited in time and non-exclusive, in programming created within the framework of the contractual relationship. A passing on of the rights of use to third parties requires a written agreement.

12.11
The customer undertakes to check the conformity of the software including documentation with the contract as regards the essential functions and, in the event of conformity with the contract, to declare its acceptance in writing or in text form. The inspection period shall be two weeks unless otherwise agreed. The software shall be deemed accepted as soon as, following expiry of the inspection period, its usability is not significantly restricted on account of notified defects for the duration of two weeks. The software shall likewise be deemed accepted if the customer indicates this by conclusive conduct. In the case of insignificant defects, acceptance may not be refused.

12.12
OMG warrants that the software including documentation, in the case of use in accordance with the contract, corresponds to the task definition defined in advance and is not affected by defects which cancel or reduce its fitness for use.

12.13
The customer has warranty claims only if notified defects are reproducible or can be demonstrated by machine-generated outputs. The customer shall report defects in a comprehensible form, stating the information expedient for the identification of the defect. The customer shall support OMG, insofar as necessary, in the elimination of defects. The warranty lapses for such programs as the customer amends or in which it otherwise intervenes, unless the customer demonstrates, in connection with the notification of defects, that the intervention is not causal for the defect.

12.14
OMG may demand remuneration for its effort insofar as he has taken action on the basis of a notification of defects without a defect being present.

§ 13 Continuing Obligations

13.1
If a continuing obligation is agreed, the customer and OMG may terminate the contract in writing without stating reasons subject to a period of three months to the end of the month. Where a minimum contract term is agreed, the contract shall be extended once again by the agreed duration of the minimum term, but by no more than one year, unless it is terminated subject to a period of three months to the end of the respective contract term, unless this has been agreed otherwise.

13.2
The specifications of services in the case of continuing obligations may be amended if this is necessary for good cause, the customer is thereby not placed in an objectively worse position as compared with the specification of services incorporated upon conclusion of the contract and there is no significant deviation therefrom. Good cause exists, inter alia, where there are technical innovations on the market for the services owed or where third parties from which OMG obtains preliminary services necessary for the rendering of its services amend their range of services.

13.3
The fees or remunerations to be paid by the customer on a pro rata basis, subject to any deviating agreement monthly, are specified in the offer or in the order confirmation or the individual contract. Monthly charges are payable in advance on the first working day of each month unless the contracting parties make a differing arrangement. Insofar as fixed hourly quotas for services of OMG have been agreed in the offer or in the order confirmation or the individual contract, the following shall apply: Unused monthly hourly quotas may be carried over into subsequent months up to a total amount of 50% of the monthly agreed hourly quota for services of OMG (hereinafter „maximum transferable hourly quota“) and called off for services of OMG. Hourly quotas not called off in a month shall lapse at the end of the respective month of use if the maximum transferable hourly quota has been reached; lapsed hourly quotas of the customer are not to be refunded by OMG. At the end of the agreed or extended contract term, hourly quotas carried over and not called off shall lapse definitively; a refund by OMG is likewise excluded in such a case.

13.4
If, during the contract term, changes in costs arise on the part of OMG as a result of statutory requirements, new or more than merely insignificantly increased levies and fees, increases in energy costs, currency changes or changes of conditions and/or prices at upstream suppliers, OMG is entitled to adjust the charges accordingly. Notification of an increase in charges shall be made at least in text form.

13.5
If the increase of the charge for the overall service under a continuing obligation effected on the basis of the above provision amounts to more than ten per cent (10%) per current contract year, the customer has the right, within a period of two (2) weeks after notification of the price increase, to terminate the service concerned of the continuing obligation extraordinarily subject to a period of one (1) month to the end of the calendar month. OMG will draw particular attention to this special right of termination in the notification of amendment. If the customer makes use of this right of termination, the non-increased prices or charges shall continue to be invoiced until the termination takes effect.

13.6
Either contracting party may terminate a continuing obligation without notice if good cause exists. As a rule, termination for good cause is preceded by a warning which has remained unsuccessful, where it is to be presumed that the ground for termination can be eliminated in this way. Good cause exists if, taking into account all the circumstances of the individual case, in particular fault on the part of the contracting parties, and weighing up the interests of both sides, the continuation of the continuing obligation until the expiry of the ordinary notice period or until the other termination of the continuing obligation cannot reasonably be expected of the terminating party. Disruptions of performance on account of force majeure or other unforeseeable events which occur at OMG and for which OMG is not responsible entitle OMG to postpone the rendering of the service by the duration of the impediment plus a restart period reasonable in the individual case.

13.7
OMG has the right, during the term of a continuing obligation, to amend the General Terms and Conditions and the supplementary conditions. The amendment shall be notified to the customer. The customer has the right, within a period of two (2) weeks after notification of the amendment, to terminate the service concerned of the continuing obligation extraordinarily subject to a period of one (1) month to the end of the calendar month. OMG will draw particular attention to this special right of termination in the notification of amendment. If the customer makes use of this right of termination, the previous General Terms and Conditions or supplementary conditions shall continue to apply until the termination takes effect.

§ 14 Statements of Dates

14.1
Unless otherwise stated, statements of dates are subject to change and non-binding.

14.2
Dates for the rendering of services by OMG are binding only if OMG expressly confirms them as binding in writing or in text form and the customer has duly and punctually brought about all the prerequisites incumbent upon it for the performance of the service. If OMG does not comply with binding service dates, the customer shall first set a reasonable grace period in writing or in text form with the indication that it will refuse performance of the contract after the fruitless expiry of that period. After the unsuccessful expiry of that grace period, the customer may withdraw from or terminate the contract concerned under which the respective binding date was breached. Other claims are excluded, insofar as they have not been separately agreed.

§ 15 Performance and Payment Conditions

15.1
The customer shall pay the remunerations agreed in the individual contracts for the services rendered by OMG in due time. All amounts are understood to be net amounts. Services requested by the customer for which prices have not been specifically agreed shall be invoiced on a time and materials basis at the standard rates of OMG applicable in each case, which shall be made available to the customer upon request.

15.2
The customer undertakes to pay the amount invoiced at the latest by the payment term defined in each case. If the customer does not meet its payment obligation within the payment period, it shall be in default upon expiry of that period without any further reminder. Default occurs separately for each invoice and, if several services are invoiced in one invoice, separately for each service.

15.3.1
If the Customer defaults on payment, OMG shall be entitled to charge a reminder fee of 10,00 € for each reminder other than the first reminder and to discontinue the provision of services. Other statutory claims for damages or interest payments remain expressly reserved.

15.3.2
OMG shall be entitled to interrupt the provision of services if the Customer has fallen into default with the payment of the agreed remuneration, or of a not insignificant part of the remuneration, on two consecutive dates. OMG will inform the Customer at least 48 hours before the interruption of services. After payment of the outstanding amounts, OMG will resume the service. The Customer remains obliged to pay the agreed remuneration, including for the period of the interruption of services, less expenses saved by OMG.

15.4
In the case of works services, OMG shall be entitled to demand instalment payments for self-contained parts of the work in respect of the services rendered in accordance with the contract. The individual service items agreed between OMG and the Customer shall be deemed to be self-contained parts of the work. In the case of continuing obligations, OMG shall be entitled to demand payment of the monthly fees in advance.

15.5
If OMG is culpably in default of performance, the contractual partner may withdraw from the contract after setting a grace period of four weeks together with a notice of rejection. Claims for damages are excluded. Delays in performance due to a failure of communication networks cannot be excluded. In the event of technical problems which do not permit the continuation of concluded contracts, OMG shall be entitled to terminate parts of the contract or the entire contract without notice.

15.6
Data carriers, shipping costs, travel costs and other expenses shall be invoiced separately.

15.7
In the event of the imposition, increase or amendment of, in particular, public-law levies, value added tax, or copyright remuneration including any value added tax accruing on the copyright remuneration, OMG reserves the right to increase the contractually agreed prices and the remuneration accordingly. OMG shall notify the Customer of the price increase.

15.8
All prices are net prices plus the applicable statutory value added tax.

15.9
The agreed remuneration for foreign business transactions are net prices, i.e. this is the net price to be paid by the Customer after deduction of any foreign taxes. The term „Foreign taxes“ means in particular corporation tax, trade tax, value added tax, goods and services tax, other withholding taxes, customs duties or other surcharges and costs, as well as other fees and levies which are imposed by a foreign state or a foreign municipality. The parties therefore agree that all „Foreign taxes“ shall be assumed and paid in full by the Customer. The Customer undertakes to provide OMG with all necessary tax certificates, tax assessment notices and all further documents which are required by OMG in order to fulfil its tax obligations abroad and in Germany.

15.10
Unless otherwise agreed, invoices are payable immediately upon receipt of the invoice without deduction.

15.11
If, after the conclusion of a contract, a material deterioration occurs in the financial circumstances of the Customer as a result of which OMG’s claim to remuneration appears to be jeopardised, or if OMG only learns of such a deterioration after the conclusion of the contract, OMG may refuse to render the services owed until such time as the respective remuneration has been paid or security has been provided for it.

15.12
OMG shall be entitled to assign its claims to remuneration to third parties.

§ 16 Retention of Title and Reservation of Assignment

16.1
All rights to the contractual services and to the work results which have not been expressly granted to the Customer under an individual contract shall remain with OMG or with the third parties holding the rights, unless provisions to the contrary apply under the following provisions.

16.2
OMG retains title to a delivered item until payment of all claims arising from the business relationship, and this also applies insofar as claims from earlier legal transactions are concerned. The transfer of a right is subject to the condition that the Customer pays all claims arising from the business relationship, including all claims which have arisen from earlier legal transactions.

16.3.1
Copyright protection is claimed for software which has been created by OMG. In accordance with the offer, the Customer acquires all rights of use in the software for all known and unknown types of use, exclusively, irrevocably and without any restriction as to content, territory or time, unless anything to the contrary has been agreed. Title to the software does not pass to the Customer. A disposal of the acquired rights of use in the software by the Customer is excluded in every case.

16.3.2
If the software delivered by OMG is not software in which OMG holds the licence and ownership rights, then the general terms and conditions of the licensor/owner of the software shall additionally also apply.

16.4.1
Copyright protection is claimed for a website created by OMG. OMG grants the Customer, in full, all rights of use in the created website for all known and unknown types of use, exclusively, irrevocably and without any restriction as to content, territory or time, unless anything to the contrary has been agreed. The Customer is entitled to edit the website created for it, to modify it subsequently, to supplement it, to extend it, to exchange or delete it in whole or in part, to redesign, disassemble or reassemble it itself or through other third parties, or to translate it into other languages; in this case OMG will not claim any protection against distortion, except where there is a gross infringement of its moral rights as author. In case of doubt, OMG may demand that OMG is not, or is no longer, named in connection with the altered work result. In particular, the granting of rights is not limited to uses on the internet, but also encompasses exploitation in other ways and manners, e.g. on radio and television, on CD-ROM, in print versions as well as in all other possible ways. The onward transfer of the right to third parties requires the written consent of OMG. All name, title and identifier rights arising in the website or in individual parts of it, or through use on the website, lie with the Customer.

16.4.2
The handover of the source code and the granting of the rights of use shall, pursuant to Section 158(1) BGB, only become effective once the Customer has paid in full the remuneration owed together with the expenses incurred to date

§ 17 Warranty

17.1
OMG warrants that the agreed services and work results will be adhered to. OMG warrants that its services correspond to the contractually agreed specifications, assurances and characteristics. OMG warrants that the services are free of defects of quality and defects of title at the time of the passing of risk.

17.2
OMG assumes no warranty that the work results created by it can be used uninterruptedly and free of errors in all combinations desired by the Customer, with any data, infrastructures and programs, with the exception of those combinations, data, infrastructures and programs which are expressly named within the scope of the order or which are customary.

17.3
The Customer is obliged to report defects which occur during use in accordance with the contract to OMG without undue delay in a comprehensible form, stating the information suitable for remedying the defect. At OMG’s request, this report shall be made in writing. The Customer shall support OMG in remedying the defect to the extent reasonable.

17.4.1
If a defect covered by the warranty exists, the Customer is entitled to have it remedied in accordance with the procedures described in these General Terms and Conditions. In every case the Customer must first demand rectification. If the defect to be remedied cannot be eliminated after rectification has been attempted twice, the Customer may reclaim the amounts paid for the defective service or demand a proportionate reduction of the total amount. In particular, claims for subsequent performance do not exist in the case of such defects as arise from a modification of the delivery and/or service products, improper use, natural wear and tear, failure of the components of the system environment, operating errors, rectification/changes by the Customer or by third parties, from inadequate maintenance, from third-party products or installation and/or from use of the objects of delivery and service. The claim to substitute performance in respect of the entire service is excluded. A notice of defects must be asserted by the Customer at the latest 15 days after obtaining knowledge.

17.4.2
If, on the basis of a notice of defect by the Customer, OMG determines by way of an inspection that the defect was caused by the Customer itself, the Customer is obliged to settle, as damages, the time expended on the inspection in accordance with the customary hourly rates.

17.5
The obligation of OMG to remedy defects includes carrying out corrections where the service rendered or the work result is not of standard industry quality or does not correspond with the scope of services agreed in writing between the parties, and where the effort required for remedying it is in every case proportionate.

17.6
If, following a corresponding investigation, it is not established that an error or a defective service is attributable to intent, negligence or omission on the part of OMG, the Customer is obliged to compensate OMG for the time expended and the costs incurred thereby for remedying the error or for rendering the service.

17.7
Warranty claims become time-barred within twelve months. The warranty claims stipulated here are exhaustive. Excepted from this are liability claims for damage arising from injury to life, body or health.

§ 18 Liability

18.1
OMG is liable for its own fault as well as for the fault of its vicarious agents.

18.2
OMG is liable without limitation for damage caused intentionally or through gross negligence by OMG and by its legal representatives or vicarious agents, for damage arising from injury to life, body or health, under the Product Liability Act and in the case of fraudulent conduct or of a guaranteed condition. In the case of simple negligence, OMG is liable for such damage as results from the breach of a material contractual obligation, and this limited to the typical, foreseeable damage. In these cases, liability for the sum of all instances of liability within a calendar year is limited to the net annual order value of the commissioned service of the calendar year in which the instances of liability occur; the basis for calculating the net annual order value is the respective individual contract with the Customer; affiliated companies of the Customer which for their part have a customer relationship with OMG are not included in this. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the Customer regularly relies or may rely, or whose breach jeopardises the achievement of the purpose of the contract. The exclusion or the limitation of liability for damages in accordance with the foregoing provisions also applies to any claims of the Customer against employees of OMG.

18.3
Insofar as a claim of the Customer for damages is not subject to a shorter limitation period by operation of law, it becomes time-barred
(a) in one year from the point in time at which the claim arose and the Customer obtains knowledge, or would have to obtain knowledge but for gross negligence, of the circumstances giving rise to the claim and of the person of the debtor,
(b) irrespective of knowledge or grossly negligent lack of knowledge, in three years from its arising and
(c) irrespective of its arising and of knowledge or grossly negligent lack of knowledge, in ten years from the commission of the act, the breach of duty or the other event triggering the damage. The period ending earlier shall be decisive.

18.4
Liability is excluded if the defect has arisen on account of hardware or software which the Customer uses, or if the Customer uses outdated drivers or the PC system is not compatible with the service of OMG.

§ 19 Force Majeure

19.1.1
Events of force majeure entitle OMG to postpone the provision of services by the duration of the impediment and a reasonable start-up period, or to withdraw from the contract in whole or in part. Force majeure shall be deemed to include in particular official interventions and orders, fire, flooding, traffic closures, lockout, energy shortage, strike, mobilisation and war.

19.1.2
If OMG is prevented from fulfilling its contractual obligations as a result of force majeure or other events which lie outside the sphere of influence of OMG and cannot be averted despite reasonable care (e.g. natural disasters, terrorist attacks, war, riot, strike, lockout, fire, floods, judicial or official measures, unforeseeable operational disruptions, including at suppliers, failure of and disruptions in the communication and power networks of other operators), its obligation to perform shall lapse, agreed availabilities shall not apply and delivery and performance dates shall be postponed accordingly. OMG will notify the Customer of this without undue delay. Either party may withdraw from the contract or terminate a continuing obligation if the event in question lasts longer than two months.

19.2.1
On 12 March 2020 the WHO declared COVID-19 a pandemic. The parties agree that any impediment to performance which results from the outbreak of COVID-19, its continuation as well as the direct official restrictions occurring after the conclusion of the contract shall be deemed to be unforeseeable at the time of the conclusion of the contract and not the fault of either party. The parties are in agreement that the outbreak and the continuation of COVID-19 is to be regarded as a case of force majeure Agreed execution times, as well as agreed delivery and/or performance dates, shall not apply insofar as these are impaired by the outbreak of COVID-19 or of any other pandemic, its continuation as well as the direct official restrictions occurring after the conclusion of the contract. All claims arising therefrom, in particular claims for reduction and/or damages as well as contractual penalties, are excluded.

19.2.2
Excepted from this are claims based on default of payment by a party.
19.2.3
For the period after the official restrictions have ceased to apply, the execution, performance and delivery times shall be adjusted appropriately by mutual agreement between the parties. Any impediments to performance which continue to exist shall continue to be deemed not to be culpably caused, unless the other party proves the contrary.

§ 20 Set-off and Right of Retention

20.1
The Customer may set off against claims of OMG only with undisputed counterclaims or counterclaims which have been established as final and absolute.

20.2
The Customer is entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.

§ 21 Confidentiality

21.1
Confidential Information within the meaning of this agreement is all information (whether in written, electronic, oral, digitally embodied or other form) which is disclosed by the Customer to OMG or to a company affiliated with OMG for the aforementioned purpose.

21.2 The following in particular are deemed to be Confidential Information:
(i) trade secrets, products, manufacturing processes, know-how, inventions, business relationships, business strategies, business plans, financial planning, personnel matters, digitally embodied information (data);
(ii) any documents and information of the Customer which are the subject of technical and organisational confidentiality measures and which are marked as confidential or are to be regarded as confidential according to the nature of the information or the circumstances of its transmission;
(iii) the existence of this agreement and its content.

21.3.
Confidential information does not include such information
(i) as was known or generally accessible to the public prior to the communication or handover by the Customer, or becomes so at a later point in time without a breach of a confidentiality obligation;
(ii) as was demonstrably already known to OMG prior to the disclosure by the Customer and without a breach of a confidentiality obligation;
(iii) as was obtained by OMG itself without use of or reference to Confidential Information from the Customer; or
(iv) as is handed over or made accessible to OMG by an authorised third party without a breach of a confidentiality obligation.

21.4
OMG undertakes
(i) to treat the Confidential Information as strictly confidential and to use it only in connection with the purpose;
(ii) to disclose the Confidential Information only to such representatives as are reliant on knowledge of this information for the purpose, provided that OMG ensures that its representatives comply with this agreement as if they were themselves bound by this agreement;
(iii) likewise to secure the Confidential Information against unauthorised access by third parties by means of appropriate confidentiality measures and, when processing the Confidential Information, to comply with the statutory and contractual provisions on data protection. This also includes technical security measures adapted to the current state of the art (Article 32 GDPR) and the obligation of employees to maintain confidentiality and to observe data protection (Article 28(3)(b) GDPR);
(iv) insofar as OMG is obliged, on the basis of applicable legal provisions, judicial or official orders or on the basis of relevant stock exchange law regulations, to disclose part or all of the Confidential Information, to inform the Customer thereof in writing without undue delay (insofar as legally possible and practically feasible) and to undertake all reasonable efforts to limit the extent of the disclosure to a minimum and, where necessary, to provide the Customer with any reasonable support which seeks a protective order against the disclosure of all or parts of the Confidential Information.

21.5
Upon request of the Customer, as well as without request at the latest after achievement of the purpose described in the individual contract or order, OMG is obliged to return or destroy all Confidential Information including the copies thereof within ten (10) working days of receipt of the request or after the end of the project (including electronically stored Confidential Information), unless retention obligations agreed with the Customer or statutory retention obligations preclude this.

21.6
The destruction of electronically stored Confidential Information takes place by means of the complete and irrevocable deletion of the files or the irretrievable destruction of the data carrier. In the case of electronically stored Confidential Information, complete and irrevocable deletion means that the Confidential Information is deleted in such a way that any access to this information becomes impossible, whereby special deletion procedures are to be used which satisfy the recognised standards (for example the standards of the Federal Office for Information Security (BSI)). Excepted from this are – in addition to Confidential Information in respect of which a retention obligation exists – Confidential Information whose destruction or return is not technically possible, e.g. because it has been stored in a backup file on account of an automated electronic backup system for securing electronic data; this also includes the technically necessary retention of master data which is required in order to establish a link to the archived information.

21.7
At the request of the Customer, OMG must confirm in writing that it has completely and irrevocably deleted all Confidential Information in accordance with the requirements of the foregoing clauses and the instructions of the Customer.

21.8
Without prejudice to the rights which it has under the Act on the Protection of Trade Secrets (GeschGehG), the Customer holds all ownership, use and exploitation rights in respect of the Confidential Information. OMG acquires no ownership and – with the exception of use for the purpose described in the individual contracts – no other rights of use in the Confidential Information on the basis of this agreement or by reason of conduct implying such rights.

21.9
OMG must refrain from itself exploiting economically or imitating the Confidential Information in any way outside the purpose, or from having it exploited or imitated by third parties.

21.10
The confidentiality obligation applies equally to all employees and/or third parties who have access to the aforementioned business transactions and documents.

21.11
The confidentiality obligation applies without limitation in time beyond the term of this contract.

§ 22 Data Protection

22.1
Both parties undertake to comply with the relevant data protection provisions.

22.2
OMG points out, pursuant to Article 13 GDPR, that personal data may be stored within the scope of the performance of the contract. Where applicable, this data is transmitted to vicarious agents, cooperation partners, third parties involved in the registration of domains and the operators of search engines, and is published to the customary extent. Otherwise, personal data is only collected, processed or used insofar as the Customer consents or a legal provision permits this.

22.3
According to the current state of the art, it cannot be ruled out that, in the case of data transmissions on the internet, unauthorised third parties may obtain knowledge of transmitted data. This risk is known to the Customer and is accepted by it.

22.4
Insofar as OMG collects, processes or uses personal data on behalf of the Customer, this takes place in accordance with the instructions of the Customer. The Customer remains the controller within the meaning of Article 4(7) of the European General Data Protection Regulation (GDPR) and is in this respect solely responsible for the lawfulness of the transfer of the data and for the assessment of the permissibility of the data processing. In this respect OMG acts as a processor pursuant to Article 28 GDPR.

§ 23 Miscellaneous

23.1
All collateral agreements, amendments or supplements to this contract require written form in order to be legally effective; this also applies to the cancellation of this written form requirement. Oral collateral agreements do not exist.

23.2
Amendments to the General Terms and Conditions are notified to the Customer at least six weeks before they come into force by email or by post. If the Customer does not object to the amendments within six weeks of receipt, they shall be deemed to have been accepted. OMG undertakes to draw the Customer’s attention once again expressly, upon receipt of the amendments, to the consequences of acceptance without objection.

23.3
The business seat of OMG is München. The place of performance for all obligations arising from this contract is München, provided that the Customer is a full merchant. The place of jurisdiction is likewise München in all cases. German law applies to the exclusion of German private international law.

23.4
Should individual provisions of these conditions be invalid in whole or in part, this shall not affect the validity of the remainder of these general terms and conditions. Invalid provisions are to be replaced by both parties with the conditions which come closest economically to the original condition. The law of the Federal Republic of Germany applies exclusively to the performance of all contracts with OMG.

This English version is a convenience translation. In the event of any discrepancy, the German version of these terms and conditions prevails.