13. Limitation and Liability.
The Services provided by the Service Provider are based on a calculated forecast system. The accuracy of the forecasting system is increased with each data entry process. Service Provider delivers the forecast results to the best of its knowledge and belief. Service Provider does not warrant against the occurrence of events that the system predicted not correctly.
Service Provider shall have the right to choose the type of supplementary performance that may be required.
If Service Provider is not able to remedy the defect or to renew the service without error, Customer will be informed of possible ways to avoid the defect. Insofar as they are reasonable for Customer, they shall be deemed to be subsequent performance.
If a third-party assert justified claims against Customer based on patents, copyrights or other industrial property rights based on a service provided by Service Provider, Service Provider shall represent Customer in any legal dispute brought against Customer at Customer’s expense and indemnify Customer with respect to such claims. However, this shall only apply if Customer Service Provider immediately notifies Customer Service Provider of the corresponding letter of claim of third parties and details of any legal disputes and Service Provider leaves all decisions regarding the use of the Software attacked by third parties, legal defense and a settlement agreement to Service Provider, and only if Service Provider is informed of such claims before claims for defects in title become statute-barred.
Customer shall be obliged to examine the Services provided by Service Provider upon receipt thereof and to notify Service Provider of any defects immediately, but no later than 10 days after receipt thereof. Notice of non-obvious defects must be given within a period of 10 days after detection of the defect. In the event of violation of the obligation to examine and give notice of defects, the service shall be deemed approved in view of the defect in question.
A liability of Service Provider is excluded – regardless of the legal nature of the asserted claim – insofar as it is based only on slight negligence.
Liability for the recovery of Customer’s data shall be limited in amount to the costs necessary to recover the data that would have been lost even if Customer had regularly backed up the data with due care.
The foregoing exclusions and limitations of liability shall not apply in the event of breach of any warranty or material contractual obligation. In such a case, however, the liability of Service Provider shall be limited to compensation for the foreseeable damage typical for the contract.
The limitation period for claims arising from material defects is 12 months. Claims from the product liability law remain unaffected by this regulation.
The limitation period with regard to defects of title begins at the point in time at which a third-party assert claims due to defects of title against Customer or Customer learns of the defect of title. The limitation period in this respect shall be 6 months.
Otherwise, Customer’s claims arising from a breach of duty by the Service Provider or its vicarious agents shall become statute-barred one year after the statutory commencement of the limitation period.
Objects and materials handed over to Service Provider are not insured by Service Provider. Customer may ensure adequate insurance cover. Service Provider shall only be liable for lost Customer items and materials in the event of intent or gross negligence.
The above provisions shall not apply to claims for damages due to intentional or grossly negligent conduct and to claims due to damage to life, limb or health.