General Terms and Conditions with Customer Information & Annex: Provisions on Switching Providers

Table of Contents

A. General Terms and Conditions with Customer Information

1. Scope
2. Services of the Provider
3. Changes to Services
4. Conclusion of the Contract
5. Right of Withdrawal
6. Grant of Rights of Use by the Provider
7. Grant of Rights of Use by the Customer
8. Obligations of the Customer
9. Moderation and Restriction of Content
10. Remuneration and Terms of Payment
11. Contract Term and Termination of the Contract
12. Liability for Defects
13. Liability
14. Indemnification
15. Confidentiality
16. Amendment of the GTC
17. Applicable Law, Place of Jurisdiction
18. Alternative Dispute Resolution

B. Annex: Provisions on Switching Providers

1. Scope
2. Definitions
3. Pre-contractual Information
4. Switching and Exit Plan
5. Initiation of the Switching Process
6. Transitional Period
7. Obligations of the Provider during the Switching Process
8. Duties of the Customer
9. Recovery and Erasure of Data
10. Remuneration for the Switching Process and Exit Charges
11. Termination of the Switching Process
12. Termination of the Contract

A. General Terms and Conditions with Customer Information

1) Scope

1.1 These General Terms and Conditions (hereinafter "GTC") of Yannick Henn, trading as "StockScorer" (hereinafter "Provider"), apply to all contracts for the provision of services in the field of Software-as-a-Service (hereinafter "SaaS") which a consumer or entrepreneur (hereinafter "Customer") concludes with the Provider with regard to the services described by the Provider on its website. The subject matter of the contract is the provision of software (hereinafter "Software") in digital form via the internet, against payment and limited in time to the term of the contract, as well as the provision of storage space on the Provider's servers. The inclusion of the Customer's own terms and conditions is hereby rejected, unless otherwise agreed.

1.2 For the purposes of these GTC, a consumer is any natural person who concludes a legal transaction for purposes that can predominantly be attributed neither to their commercial nor to their independent professional activity.

1.3 For the purposes of these GTC, an entrepreneur is a natural or legal person or a partnership with legal capacity which, when concluding a legal transaction, acts in the exercise of its commercial or independent professional activity.

2) Services of the Provider

2.1 The Provider makes Software available to the Customer in digital form via the internet for the duration of the agreed contract term. For this purpose, it grants the Customer access to the Software, which remains on the Provider's server. The range of functions and the technical specifications of the Software are described in more detail in the service description on the Provider's website. The Provider merely owes the provision of the Software with the functionalities defined in more detail in the service description. In particular, the Provider does not owe the establishment and maintenance of the data connection between the Customer's IT system and the Provider's server.

2.2 The Software is updated by the Provider at irregular intervals. Accordingly, the Customer only receives a right of use to the Software in its current version at any given time. By contrast, the Customer has no claim to the Software being brought into a particular state.

2.3 The Provider provides the Customer with limited storage space on its servers for the use of the Software. The extent of the storage space is described in more detail in the service description on the Provider's website.

2.4 The Provider's services are offered subject to availability. 100 per cent availability cannot be achieved technically and therefore cannot be guaranteed to the Customer by the Provider. However, the Provider endeavours to keep the service available as constantly as possible. In particular, maintenance, security or capacity concerns as well as events beyond the Provider's control (disruptions of public communication networks, power failures, etc.) may lead to disruptions or to the temporary shutdown of the service.

2.5 The Provider takes data backup measures in line with the state of the art. However, the Provider has no duty of safekeeping or custody. The Customer is itself responsible for adequate data backup.

2.6 The Provider makes a user manual available to the Customer in electronic form.

2.7 The Provider offers additional support services. The content and scope of the support services are set out in the service description on the Provider's website.

3) Changes to Services

3.1 The Provider reserves the right to change the services offered or to offer different services, unless this is unreasonable for the Customer.

3.2 The Provider further reserves the right to change the services offered or to offer different services,

• to the extent that it is obliged to do so due to a change in the legal situation;
• to the extent that it thereby complies with a court judgment or an official decision directed against it;
• to the extent that the respective change is necessary to close existing security gaps;
• if the change is merely advantageous for the Customer; or
• if the change is of a purely technical or procedural nature without material effects for the Customer.

3.3 Changes with merely insignificant influence on the Provider's services do not constitute changes to services within the meaning of this section. This applies in particular to changes of a purely graphical nature and to the mere change in the arrangement of functions.

4) Conclusion of the Contract

4.1 The services described on the Provider's website do not constitute binding offers on the part of the Provider but serve as an invitation to the Customer to submit a binding offer.

4.2 The Customer may submit the offer via the online order form provided on the Provider's website. In doing so, after entering their personal data and by clicking the button that completes the ordering process, the Customer submits a legally binding contractual offer in respect of the selected services.

4.3 The Provider may accept the Customer's offer within five days,

• by sending the Customer a written order confirmation or an order confirmation in text form (fax or email), whereby receipt of the order confirmation by the Customer is decisive in this respect, or
• by requesting the Customer to pay after the Customer has placed their order.

If several of the aforementioned alternatives apply, the contract is concluded at the time at which one of the aforementioned alternatives first occurs. The period for accepting the offer begins on the day after the Customer sends the offer and ends at the expiry of the fifth day following the sending of the offer. If the Provider does not accept the Customer's offer within the aforementioned period, this shall be deemed a rejection of the offer, with the consequence that the Customer is no longer bound by their declaration of intent.

4.4 When an offer is submitted via the Provider's online order form, the text of the contract is stored by the Provider after conclusion of the contract and transmitted to the Customer in text form (e.g. email, fax or letter) after the Customer has sent their order. The Provider does not make the text of the contract accessible beyond this. If the Customer has set up a user account on the Provider's website before sending their order, the order data are archived on the Provider's website and can be accessed free of charge by the Customer via their password-protected user account by entering the corresponding login data.

4.5 Before bindingly submitting the order via the Provider's online order form, the Customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better identification of input errors can be the browser's zoom function, with the help of which the display on the screen is enlarged. Within the electronic ordering process, the Customer can correct their entries using the usual keyboard and mouse functions until they click the button that completes the ordering process.

4.6 The German language is available for the conclusion of the contract.

4.7 Order processing generally takes place automatically by email. The Customer must ensure that the email address provided by them for order processing is correct, so that emails sent by the Provider can be received at this address.

5) Right of Withdrawal

Consumers are generally entitled to a right of withdrawal. Further information on the right of withdrawal can be found in the Provider's withdrawal policy.

6) Grant of Rights of Use by the Provider

The Provider is the holder of all rights of use required for the provision of the Software. Unless otherwise stated in the service description on the Provider's website, the Provider grants the Customer the non-exclusive, non-transferable right, limited in time to the term of the contract, to use the Software for private purposes within the framework of these GTC. Any use of the Software beyond this is not permitted.

7) Grant of Rights of Use by the Customer

The Provider is entitled to use content and information which the Customer makes available to it for the service within the scope of its contractual obligations and whose processing is necessary for the proper performance of the services. The Customer grants the Provider, free of charge, on a non-exclusive basis and limited to the term of the contract, the rights of use required for this purpose, in particular the right to permanently hold available and store, the right of reproduction and the right of adaptation, and warrants that it is entitled to grant these rights of use.

8) Obligations of the Customer

8.1 The Customer shall ensure that the hardware and software it uses, including workstation computers, routers, data communication equipment etc., meets the minimum technical requirements for using the currently offered software version.

8.2 The Customer is obliged to protect the access data provided to it against access by third parties in accordance with the state of the art and to keep them safe. The Customer shall ensure that use only takes place to the contractually agreed extent. Unauthorised access by third parties must be reported to the Provider without undue delay.

8.3 The Customer may not store any data on the storage space provided whose use violates applicable law, official requirements or orders, rights of third parties or agreements with third parties.

8.4 The content stored by the Customer on the storage space intended for it may be protected under data protection law. The Customer shall check on its own responsibility whether its use of personal data complies with data protection requirements.

8.5 The Customer shall, on its own responsibility, regularly carry out appropriate data backups.

8.6 The Customer is obliged to check its data and information for viruses or other harmful components before entering them and to use measures in line with the state of the art for this purpose (e.g. antivirus programs).

8.7 The Customer shall ensure that programs, scripts or the like installed by it do not endanger the operation of the Provider's server or communication network or the security and integrity of other data stored on the Provider's servers.

8.8 If programs, scripts or the like installed by the Customer endanger or impair the operation of the Provider's server or communication network or the security and integrity of other data stored on the Provider's servers, the Provider may deactivate or uninstall these programs, scripts etc. If the elimination of the danger or impairment so requires, the Provider is also entitled to interrupt the connection of the content stored on the server to the internet. The Provider will inform the Customer of this measure without undue delay.

9) Moderation and Restriction of Content

9.1 The Provider is generally not obliged to proactively check the content posted by Customers for its lawfulness or its compatibility with the rights of third parties or with these GTC. The Provider nevertheless reserves the right, in individual cases and on its own initiative, to check the Customer's content for its lawfulness and, where violations are found, to take measures in accordance with the following provisions.

9.2 Customers and affected third parties may report presumably unlawful content to the Provider using the contact information in the Provider's legal notice (Impressum) (e.g. by email). The Provider is free to forward the content of a report to the Customer who posted the reported content. The identity of the reporting person will only be disclosed to the Customer if this is strictly necessary.

9.3 In the case of reports and in the context of any checks carried out on the Provider's own initiative, content is generally reviewed by humans. In individual cases, automated technical review procedures may be used in addition.

9.4 If, following a report or in the context of a check on the Provider's own initiative, content published by the Customer is found to be unlawful, the Provider is entitled, even without prior notice or contact, to take one or more of the following measures at its reasonable discretion:

• warning the publishing Customer,
• temporary blocking or permanent deletion of the content concerned,
• temporary or permanent suspension of the contractually assumed obligations,
• termination of the contractual relationship (ordinary, or extraordinary for good cause).

9.5 When choosing the measures to be taken, the Provider will take into account the principles of proportionality and weigh the interests of the Customer concerned against its own interests in the unhindered, undisturbed and sound continuation of its business activities. Criteria taken into account when imposing a measure are:

• the statement and meaning of the specific content and its potential for infringement or harm,
• the frequency with which the Customer publishes inadmissible content,
• the ratio of the Customer's publication of inadmissible content to its other use of the services,
• where recognisable, the intentions pursued by the Customer in publishing inadmissible content,
• where recognisable, the existence and degree of fault on the part of the publishing Customer.

9.6 If Customers frequently submit manifestly unfounded reports or complaints, the Provider will, after prior warning, suspend the processing of reports and complaints from these Customers for a reasonable period of time.

10) Remuneration and Terms of Payment

10.1 Unless otherwise stated in the Provider's service description, the prices indicated are total prices. No VAT is charged, as the Provider is exempt from VAT as a small business (Kleinunternehmer).

10.2 The payment options and payment terms are communicated to the Customer on the Provider's website.

11) Contract Term and Termination of the Contract

11.1 The contract is concluded for an indefinite period and may be terminated by either party with effect from the end of each month.

11.2 The right to extraordinary termination for good cause remains unaffected. Good cause exists if, taking into account all circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed end of the contract or until the expiry of a notice period.

11.3 Notices of termination may be given in writing, in text form (e.g. by email) or electronically via the termination function provided by the Provider on its website (termination button).

11.4 Upon termination of the contract, the Customer loses access to their user account. Furthermore, the Provider's obligation to store data posted by the Customer also expires upon termination of the contract.

12) Liability for Defects

12.1 If the Customer acts as a consumer, the statutory provisions on liability for defects apply.

12.2 If the Customer acts as an entrepreneur, the statutory provisions on liability for defects apply subject to the following restrictions.

12.2.1 The Customer must notify the Provider of any defects, faults or damage that occur without undue delay.

12.2.2 The warranty for merely insignificant reductions in the suitability of the service is excluded.

12.2.3 Strict liability pursuant to § 536a para. 1 BGB (German Civil Code) for defects that already existed at the time the contract was concluded is excluded.

12.2.4 Termination by the Customer due to failure to grant contractual use is only permissible once the Provider has been given sufficient opportunity to remedy the defect and the remedy has failed. The remedy shall only be deemed to have failed if it is impossible, if it is refused or unreasonably delayed by the Provider, if there are justified doubts as to its prospects of success, or if it is unreasonable for the Customer for other reasons.

13) Liability

The Provider is liable to the Customer for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses as follows:

13.1 The Provider is liable without limitation, on whatever legal grounds,

• in the event of intent or gross negligence,
• in the event of intentional or negligent injury to life, body or health,
• on the basis of a guarantee promise, unless otherwise provided in this respect,
• on the basis of mandatory liability, such as under the Produkthaftungsgesetz (German Product Liability Act).

13.2 If the Customer acts as a consumer based in Germany or as an entrepreneur, the following limitations of liability apply:

If the Provider negligently breaches a material contractual obligation, its liability is limited to the foreseeable damage typical for this type of contract, unless it is liable without limitation pursuant to the preceding section. Material contractual obligations are obligations which the contract imposes on the Provider according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place and on whose observance the Customer may regularly rely. Otherwise, any liability on the part of the Provider is excluded, unless it is liable without limitation pursuant to the preceding section.

13.3 The above liability provisions also apply with regard to the Provider's liability for its vicarious agents and legal representatives.

14) Indemnification

The Customer indemnifies the Provider against all claims asserted against the Provider by other customers or other third parties for infringement of their rights on account of content posted by the Customer or on account of the Customer's other use. In this context, the Customer also bears the necessary costs of legal defence, including all court and lawyers' fees at the statutory rate. This does not apply if the Customer is not responsible for the infringement. In the event of a claim by third parties, the Customer is obliged to provide the Provider without undue delay, truthfully and completely with all information required for examining the claims and for a defence.

15) Confidentiality

The Provider undertakes to maintain secrecy about all confidential information of which it becomes aware in connection with this contract and its performance, and not to disclose such information to third parties. Confidential information is information that is marked as confidential or whose confidentiality arises from the circumstances, irrespective of whether it was communicated in written, electronic, embodied or oral form. The confidentiality obligation does not apply to the extent that the Provider is obliged to disclose the confidential information by law or on the basis of a final and binding official or court decision.

16) Amendment of the GTC

16.1 The Provider reserves the right to amend these GTC at any time, provided that the Customer consents to the amendment.

16.2 The Provider further reserves the right to amend these GTC even without the Customer's consent,

• to the extent that it is obliged to do so due to a change in the legal situation;
• to the extent that it thereby complies with a court judgment or an official decision directed against it;
• to the extent that it introduces additional, entirely new services, offerings or service elements which require a service description in the GTC, unless the existing usage relationship is adversely changed as a result;
• if the amendment is merely advantageous for the Customer; or
• if the amendment is required for purely technical or procedural reasons, unless it has material effects for the Customer.

16.3 The Provider will inform the Customer of material amendments to these GTC in good time and in a suitable form. Material amendments are those that would significantly shift the contractual relationship to the Customer's disadvantage or would be equivalent to the conclusion of an entirely new contract. These include, for example, provisions on the nature and scope of the service or on the contract term and termination arrangements.

16.4 The Customer's right of termination remains unaffected by this.

17) Applicable Law, Place of Jurisdiction

The law of the Federal Republic of Germany applies to all legal relationships between the parties. In the case of consumers, this choice of law applies only insofar as it does not deprive the consumer of the protection granted by mandatory provisions of the law of the state in which the consumer has their habitual residence.

18) Alternative Dispute Resolution

The Provider is neither obliged nor willing to participate in dispute resolution proceedings before a consumer arbitration board.

B. Annex: Provisions on Switching Providers

1) Scope

The following provisions apply in the event that the Customer wishes to switch to another provider or to an ICT infrastructure on its own premises.

2) Definitions

2.1 For the purposes of these GTC, "data processing service" means a digital service that is provided to the Customer and that enables ubiquitous and on-demand network access to a shared pool of configurable, scalable and elastic computing resources of a centralised, distributed or highly distributed nature that can be rapidly provisioned and released with minimal management effort or minimal interaction by the Provider.

2.2 For the purposes of these GTC, "digital assets" means elements in digital form, including applications, for which the Customer has the right of use, independently of the contractual relationship with the data processing service from which it intends to switch.

2.3 For the purposes of these GTC, "on-premises ICT infrastructure" means ICT infrastructure and computing resources owned, rented or leased by the Customer, located in the Customer's data centre and operated by the Customer or by a third party.

2.4 For the purposes of these GTC, "switching" means a process involving the Provider, the Customer and, where relevant, a destination provider of data processing services, in which the Customer changes from using the Provider's data processing service to using another data processing service of the same service type, or another service, offered by a different provider of data processing services or offered on an on-premises ICT infrastructure, including through the extraction, transformation and uploading of the data.

2.5 For the purposes of these GTC, "exportable data" means input and output data, including metadata, directly or indirectly generated, or co-generated, by the Customer's use of the data processing service, excluding any assets or data of the Provider or of third parties that are protected by intellectual property rights or constitute a trade secret.

3) Pre-contractual Information

3.1 Before the data processing services are ordered, the Provider provides the Customer with clear information on the following points:

• its standard remuneration and, where applicable, penalties for early termination;
• the switching charges;
• services that involve highly complex or costly switching or for which switching is not possible without significant interference with the data, digital assets or service architecture, where relevant;
• specific services to which the obligations relating to switching and termination do not apply, where applicable;
• an exhaustive list of the categories of data and digital assets that can be transferred, including, at a minimum, all exportable data;
• an exhaustive list of the categories of data that are specific to the internal functioning of the Provider's data processing service and that are exempted from the obligation to export data where there is a risk of breach of the Provider's trade secrets;
• clear information on known risks to the continuity of the provision of the Provider's functions or services.

3.2 The Provider's online register containing data structures and data formats, relevant standards and open interoperability specifications for data is available on the Provider's website.

4) Switching and Exit Plan

4.1 The parties agree on a switching and exit plan (hereinafter "Plan"), which contains in particular the following:

• details of the switching and exit assistance, including the porting methods and formats as well as the steps required to carry out the switching process;
• the contact persons designated by the Customer and by the Provider respectively for implementing the Plan;
• an estimate of the time required for exporting and transferring the data and digital assets from the environment of the original provider;
• limitations and technical restrictions, including those resulting from the storage of data outside the EU;
• a description of the sequence of operations proposed by the Provider;
• a description of the testing method proposed by the Provider, if tests are carried out.

4.2 At the Customer's request, the Provider must provide the personnel designated by the Customer (or other third parties authorised by the Customer) with information explaining the relevant procedures.

4.3 At the Customer's request, the Provider undertakes either to organise a test or to support the Customer in its tests in order to verify whether the Plan works in practice for exportable data and digital assets. If problems arise during the test, the parties will analyse the causes in good faith and work towards solutions.

4.4 The Provider and the Customer undertake to update the Plan as required and, at least at the Customer's request, to review whether changes are necessary.

5) Initiation of the Switching Process

5.1 The Customer must send the Provider a switching notice, observing a notice period of 2 months, stating that it is initiating the switch. If the Customer only wishes to transfer certain services, data or digital assets, it must specify this in the notice.

5.2 In the switching notice, the Customer must state whether it intends:

• to switch to another provider of data processing services. In this case, the Customer should provide the necessary details of the destination provider;
• to switch to a local ICT infrastructure of the Customer; or
• not to switch, but only to delete its exportable data and digital assets.

5.3 The Provider will confirm receipt of the switching notice to the Customer within 3 working days at the latest, using the same means of communication that the Customer used.

6) Transitional Period

6.1 The transitional period is 30 calendar days and begins upon expiry of the notice period for initiating the switching process.

6.2 If the Provider cannot meet the agreed transitional period for technical reasons, it undertakes:

• to notify the Customer in writing or in text form within 14 working days of receiving the notice;
• to specify an alternative transitional period, which may not exceed seven (7) months from the date of the Customer's notice; and
• to provide adequate reasons for the technical unfeasibility.

The Customer must confirm receipt of this extension notice in writing or in text form within 3 working days.

6.3 The Customer may extend the transitional period once by a period that it considers more appropriate for its purposes, but not longer than 3 months. In the case of complex migrations, the parties may by mutual agreement agree on a longer period, but not exceeding 12 months. The Customer must inform the Provider of its intention in writing or in text form by the end of the original transitional period and specify the alternative transitional period. The Provider will confirm receipt of such an extension notice in writing or in text form within 3 working days.

7) Obligations of the Provider during the Switching Process

The Provider undertakes to support the Customer and third parties engaged by the Customer in an appropriate manner from the beginning and throughout the entire duration of the switching process, so that the Customer can switch within the agreed transitional period. For this purpose, the Provider must in particular:

• provide capabilities, adequate information (including the documentation required to carry out the switch) and technical assistance. If problems are identified, the Provider and the Customer will analyse the causes in good faith and work towards solutions;
• act with due care to maintain business continuity and to continue to provide the functions or services in accordance with the contract;
• maintain a high level of security throughout the switching process, in particular for the security of the data during their transfer.

8) Duties of the Customer

8.1 The Customer undertakes to take all reasonable measures to achieve an effective switch. The Customer is responsible for importing and implementing data and digital assets into its own systems or into the systems of the destination provider.

8.2 The Customer or third parties engaged by it, including the destination provider, undertake to respect the intellectual property rights and trade secrets in the materials provided by the Provider in the switching process. The Customer further undertakes to grant third parties or the destination provider access to these materials, and where applicable to grant sub-licences for their use, only to the extent necessary to carry out the switching process until the end of the agreed transitional period, including the alternative transitional period, and in doing so to respect the confidentiality obligations and the intellectual property rights granted by the Provider.

9) Recovery and Erasure of Data

9.1 The Customer may retrieve or delete its data during the agreed data retrieval period. The data retrieval period is 30 calendar days and begins after the expiry of the agreed transitional period. The parties may agree on a longer period if this is appropriate taking into account the interests of both parties.

9.2 After expiry of the agreed retrieval period and upon successful completion of the switching process, the Provider undertakes to delete all exportable data and digital assets generated by the Customer or directly relating to the Customer, and to confirm to the Customer that it has done so. This does not apply to exportable data that the Provider must retain under mandatory EU law or the law of the EU Member States, provided that the Provider informs the Customer which exportable data it retains, for how long and for what reasons.

10) Remuneration for the Switching Process and Exit Charges

The Provider does not charge any additional remuneration for the switching process.

11) Termination of the Switching Process

11.1 As soon as the Customer informs the Provider that the switching process has been successfully completed, the Provider will inform the Customer of the termination of the contract without undue delay. If the Customer does not inform the Provider of the successful switch or the absence thereof, although the Provider has legitimate reason to believe that the switch has been successfully completed by the Customer, the Provider may request the Customer to confirm that the switch has been successfully completed. If the Customer does not confirm the successful switch within 30 business days of this request, the switch shall be deemed not to have been successful, and the contract shall not be terminated but shall continue under the existing terms.

11.2 If the Customer does not wish to switch but wishes to delete its exportable data and digital assets, the Provider undertakes to inform the Customer of the termination of the contract at the end of the agreed notice period.

12) Termination of the Contract

12.1 The contract shall be deemed terminated between the parties when one of the following events has fully occurred:

• upon successful completion of the switching process;
• after expiry of the notice period, if the Customer does not wish to switch but wishes to delete its exportable data and digital assets upon termination of the service.

12.2 If the contract or the Provider's GTC contain(s) clauses on termination based on statutory provisions or related cases, such as the following:

• a contracting party applies for a deferral of payment or a suspension of payments, or a contracting party has been declared insolvent;
• a contracting party has still not fulfilled in time a material or other obligation under the contract which leads or could lead (either contractually or by law) to termination of the contract;
• a party has become aware of a change in ownership or in the power of disposal which, contractually or by law, leads or could lead to termination of the agreement;
• the agreement is declared void due to a breach of, or a change in, the applicable mandatory law, or;
• similar or identical situations or other situations which, contractually or by law, lead or could lead to termination of the agreement,

the agreement, together with the agreed services and functions, shall not be terminated or expire before one of the events pursuant to the preceding section has clearly occurred. This does not affect other rights or remedies available to one party against the other party.

The Customer may agree with the Provider on success criteria for the switch as well as milestones for the switch and report the status of their achievement during the switching process. In any event, the Customer must inform the Provider of the successful switch.

12.3 If the switching process cannot be successfully completed, the parties must cooperate in good faith to improve the switching process and achieve successful completion, to enable timely data transfer and to maintain the continuity of the services. In doing so, the Provider must, at the Customer's request, assist the Customer in determining the reasons for the unsuccessful switch and inform the Customer how the identified obstacles can be removed or circumvented.

• The Customer will, at its own discretion, engage the destination provider on its behalf.
• Without prejudice to other remedies available under applicable law, the agreement shall not be terminated or expire before the successful completion of the switching process or before a corresponding decision by a competent court or by a forum chosen and agreed by the parties.
• In the event of conflicts or inconsistencies between these clauses and other agreements between the parties on the termination of the contract, these clauses shall prevail.

12.4 The switching process shall be deemed successfully completed if:

• the agreed notice period has expired,
• the transitional period has begun after expiry of the notice period,
• the data retrieval period has begun after expiry of the transitional period, and
• the data erasure has been successfully completed after expiry of the data retrieval period or after expiry of an alternatively agreed period following successful completion of the switching process.

12.5 If, at the end of the transitional period, the Customer decides not to delete all of its exportable data and digital assets at the end of the agreed data retrieval period and wishes to ensure that they remain available for a certain additional time with limited functionality, or if the Customer and the Provider have agreed to maintain the contract without the provision of certain services, unless the Customer expressly instructs otherwise, this may only take place after:

• the agreed notice period has expired,
• the transitional period has expired, and
• an alternative period for data retrieval and other conditions for the service with limited functionality or for maintaining the contract have been agreed between the Customer and the Provider (in particular the permission for the Provider to delete the data after the alternative data retrieval period and/or the determination of the remuneration for this additional period).

If the alternative data retrieval period and other conditions for the service during this time are proposed by the Provider, the contract may not be terminated or expire before the Customer, at its own discretion, has accepted the deletion and has clearly confirmed that the contract is terminated.

12.6 The right of the contracting parties to end the contractual relationship under a contract of indefinite duration by ordinary termination remains unaffected, provided that the reason for termination lies neither in a change of provider nor, on the part of the Customer, in an intention to delete data.

12.7 If the contract was expressly concluded for a fixed term and the expiry date is reached before the switching process has been completed, and the Customer has not requested the deletion of its exportable data and digital assets,

• the transitional period begins on the expiry date of the contract and the Provider provides appropriate assistance with the switch;
• the above provisions on successful or unsuccessful completion of the switching process apply accordingly.