As of March 2022
Confidentiality: The contents of this document are the property of HighPots GmbH. It may not be duplicated, disclosed to third parties, or otherwise published, either in whole or in part, without the written permission of HighPots GmbH or its subsidiaries, branches, or shareholders.
1)
Unless otherwise agreed, remuneration shall be calculated on a time and material basis at HighPots’ generally applicable prices at the time of conclusion of the contract. Remuneration shall generally be net prices plus applicable sales tax. HighPots may invoice on a monthly basis. If services are remunerated on a time and material basis, HighPots shall document the type and duration of the activities and submit this documentation with the invoice.
2)
All invoices are generally payable without deduction no later than 14 calendar days after receipt by the paying agent.
3)
The customer may only offset or exercise a right of retention with undisputed or legally established claims. In the event of defects, the customer may only retain payments to an extent that is proportionate to the defect and only if the defect is beyond doubt. 4.1 applies accordingly. The customer has no right of retention if their claim for defects is time-barred.
4)
HighPots retains ownership and rights to the services until full payment of the remuneration owed, for which justified deductions for defects in accordance with 1.3, sentence 2, are to be taken into account. Furthermore, HighPots retains ownership until all its claims arising from the business relationship with the customer have been fulfilled.
HighPots is entitled to prohibit the customer from continuing to use the services for the duration of any payment default on the part of the customer. HighPots may only exercise this right for a reasonable period of time, generally for a maximum of 6 months. This does not constitute a withdrawal from the contract. Section 449 (2) of the German Civil Code (BGB) remains unaffected.
If the customer or its purchaser returns the services, acceptance of the services does not constitute withdrawal by HighPots, unless it has expressly declared its withdrawal. The same applies to the seizure of the reserved goods or rights to the reserved goods by HighPots.
The customer may not pledge or transfer ownership of items subject to retention of title or legal reservation. The customer is only permitted to resell the goods in the ordinary course of business as a reseller, provided that HighPots has been effectively assigned the customer’s claims against its buyers in connection with the resale and the customer transfers ownership to its buyer subject to payment. By concluding the contract, the customer assigns its claims against its customers in connection with such sales to HighPots as security, which HighPots accepts at the same time.
If the value of HPTF’s security interests exceeds the amount of the secured claims by more than 20%, HPTF will release a corresponding portion of the security interests at the customer’s request.
5)
If the customer is unable to fulfill their obligations to HighPots for financial reasons, HighPots may terminate existing exchange contracts with the customer by withdrawing from them and terminate continuing obligations by giving notice without notice, even if the customer files for insolvency. Section 321 of the German Civil Code (BGB) and Section 112 of the German Insolvency Code (InsO) remain unaffected. The customer shall inform HighPots in writing at an early stage of any impending insolvency.
6)
Fixed performance dates shall only be agreed expressly in documented form. The agreement of a fixed performance date is subject to HighPots receiving the services of its respective suppliers in a timely manner and in accordance with the contract.
1)
The customer and HighPots shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and HighPots shall take place via these contact persons. The contact persons shall immediately bring about all decisions relating to the execution of the contract. The decisions shall be documented in a binding manner.
2)
The customer is obliged to support HighPots as necessary and to create all conditions necessary for the proper execution of the order within its sphere of operation. To this end, it shall, in particular, provide the necessary information and, if necessary, enable remote access to the customer’s system. The customer shall also ensure that competent personnel are available to support HighPots.
If the contract stipulates that services may be provided on site at the customer’s premises, the customer shall, at HighPots’ request, provide sufficient workstations and work equipment free of charge.
3)
The customer must report defects immediately in writing in a comprehensible and detailed manner, providing all information relevant to the detection and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the form in which it manifested itself, and the effects of the defect must be specified.
4)
The contracting parties are obliged to maintain confidentiality regarding business and trade secrets as well as other information designated as confidential that becomes known in connection with the execution of the contract. Such information may only be disclosed to persons who are not involved in the conclusion, performance, or execution of the contract with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information becomes known, but in the case of continuing obligations, not before their termination.
The contracting parties shall also impose these obligations on their employees and any third parties they may engage.
5)
The contracting parties are aware that electronic and unencrypted communication (e.g., via email) involves security risks. They will therefore not assert any claims arising from the lack of encryption in this type of communication, unless encryption has been agreed upon in advance.
1)
If a cause beyond HighPots’ control, including strikes or lockouts, impairs adherence to deadlines (“disruption”), the deadlines shall be postponed by the duration of the disruption, including, if necessary, a reasonable restart phase. One contracting party shall immediately inform the other contracting party of the cause of a disruption that has occurred in its area and the duration of the postponement.
2)
If the cost increases due to a malfunction, HighPots may also demand compensation for the additional expense, unless the customer is not responsible for the malfunction and its cause lies outside their area of responsibility.
3)
If the customer can withdraw from the contract and/or claim damages in lieu of performance due to improper performance by HighPots, or if the customer asserts such a claim, the customer shall, at HighPots’ request, declare in writing within a reasonable period of time whether it will assert these rights or continue to request performance. In the event of withdrawal, the customer shall reimburse HighPots for the value of any previous use; the same shall apply to any deterioration resulting from intended use.
If HighPots is in default with the provision of services, the customer’s compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the service that cannot be used due to the default for each completed week of the default. Liability for delay shall be limited to a maximum of 5% of this price. This shall not apply if the delay is due to gross negligence or intent on the part of HighPots.
In the event of a delay in performance, the customer shall only have a right of withdrawal within the scope of the statutory provisions if HighPots is responsible for the delay. If the customer is entitled to claim damages or reimbursement of expenses instead of performance due to the delay, they are entitled to demand 1% of the price for the part of the service that cannot be used due to the delay for each completed week of the delay, but no more than 10% of this price in total. 3.3 Paragraph 2, sentence 3 applies accordingly.
1)
No claims for material defects shall arise in the event of only insignificant deviations of the services from the contractual quality.
Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible or otherwise verifiable software errors on the part of the customer, or damage caused by special external influences not provided for in the contract. This also applies to subsequent modifications or repairs by the customer or third parties, unless these make it more difficult to analyze and remedy a material defect.
Section 6 shall apply in addition to claims for damages and reimbursement of expenses.
2)
Claims for material defects shall become time-barred within one year from the start of the statutory limitation period. The statutory periods for recourse claims pursuant to Section 478 of the German Civil Code (BGB) shall remain unaffected. The same applies insofar as the law pursuant to Section 438 (1) No. 2 BGB (buildings and items for buildings) prescribes longer periods, in the event of an intentional or grossly negligent breach of duty by HighPots, in the event of fraudulent concealment of a defect, and in cases of injury to life, limb, or health.
The processing of a customer’s notification of material defects by HighPots only leads to a suspension of the statute of limitations if the legal requirements for this are met. This does not result in a restart of the statute of limitations.
Subsequent performance (new delivery or repair) can only affect the statute of limitations for the defect that triggered the subsequent performance.
3)
HighPots may demand compensation for its expenses insofar as
1)
HighPots shall only be liable for infringements of third-party rights through its services if the services are used in accordance with the contract and, in particular, in the contractually agreed environment.
HighPots shall only be liable for infringements of third-party rights within the European Union and the European Economic Area and at the place of contractual use of the service. 5.1 Sentence 1 shall apply accordingly.
2)
If a third party asserts against the customer that a service provided by HighPots infringes its rights, the customer shall notify HighPots immediately. HighPots and, if applicable, its suppliers are entitled, but not obliged, to defend the asserted claims at their own expense, insofar as this is permissible.
The customer is not entitled to acknowledge claims by third parties before giving HighPots adequate opportunity to defend against the rights of third parties in other ways.
3)
If the rights of third parties are infringed by a service provided by HighPots, HighPots shall, at its own discretion and expense
The interests of the customer are taken into account appropriately.
4)
The interests of the customer are taken into account appropriately.
1)
HighPots shall always be liable to the customer
2)
HighPots shall not be liable for slight negligence, except insofar as it has breached a material contractual obligation (cardinal obligation).
This liability is limited to typical and foreseeable damage in the case of property damage and financial loss. This also applies to lost profits and lost savings. Liability for other indirect consequential damages is excluded.
For a single claim, liability is limited to the contract value; in the case of ongoing remuneration, liability is limited to the amount of remuneration per contract year, but not less than €50,000. Section 4.2 applies accordingly to the statute of limitations. The parties may agree on further liability in return for separate remuneration when concluding the contract. Liability pursuant to Section 6.1 remains unaffected by this paragraph.
In addition and as a priority, HighPots’ liability for slight negligence arising from the respective contract and its execution for damages and reimbursement of expenses, regardless of the legal basis, is limited in total to the percentage of the remuneration agreed upon at the conclusion of the contract as specified in this contract. Liability pursuant to 6.1 b) remains unaffected by this paragraph.
3)
HighPots shall only be liable for damages under a warranty statement if this has been expressly agreed in the warranty. In cases of slight negligence, this liability is subject to the limitations set out in section 6.2.
4)
In the event of data loss, HighPots shall only be liable for the costs incurred in restoring the data, provided that the customer has carried out proper data backup. In cases of slight negligence, this liability shall only apply if the customer has carried out proper data backup immediately prior to the action leading to the data loss.
5)
Sections 6.1 to 6.4 apply accordingly to claims for reimbursement of expenses and other liability claims of the customer against HighPots.
1)
The customer shall be responsible for complying with import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees, and other charges incurred. The customer shall be responsible for handling any legal or official procedures in connection with cross-border deliveries or services, unless otherwise expressly agreed.
2)
Swiss law applies. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
3)
HighPots provides its services on the basis of its General Terms and Conditions (GTC). The customer’s GTC shall not apply, even if HighPots has not expressly objected to them.
Acceptance of the services by the customer constitutes acceptance of HighPots’ terms and conditions and waiver of the customer’s terms and conditions.
Other terms and conditions are only binding if HighPots has accepted them in writing; in addition, the General Terms and Conditions of HighPots apply.
4)
Amendments and additions to this contract shall only be agreed in writing.
5)
The place of jurisdiction for merchants, legal entities under public law, or special funds under public law is the registered office of HighPots. HighPots may also sue the customer at the customer’s place of business.