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AGB - 1 - Terms and Conditions
General terms and conditions
Discovergy GmbH - As of 01.04.2017
AGB - 2 - Terms and Conditions
1. Scope of application
1.1. The following terms and conditions (hereinafter referred to as "General Terms and Conditions") and any additional terms and conditions agreed in the order forms and any product-specific service descriptions and the relevant product-specific price list (together referred to as "the Contract" or "the Terms and Conditions") shall apply to all services provided by Discovergy GmbH (hereinafter referred to as "Discovergy") to the contractual partner (hereinafter referred to as "Customer"). The services offered by Discovergy include in particular the provision, installation and operation of meters (meters and smart meter gateway for various energy sources such as electricity or gas, hereinafter referred to as "meters") as metering point operator at the metering point of the Customer and all other services provided to the Customer on this basis (hereinafter referred to as "Services"). In the event of contradictions between the General Terms and Conditions, the conditions in any order form, the product-specific performance descriptions and the product-specific price lists, the provisions shall apply in the following order: price list, order form, product-specific performance description, General Terms and Conditions. Any deviating terms and conditions of the customer shall not apply. They shall not apply even if Discovergy does not explicitly object to them.
1.2. Discovergy shall have the right to amend these General Terms and Conditions if this does not affect the essential terms of the contractual relationship and if this is necessary to adapt to developments which could not have been foreseen at the time the contract was concluded and the non-observance of which would noticeably disturb the balance of the contractual relationship. Essential provisions are, in particular, those relating to the type and scope of the contractually agreed services and the term including the provision on termination. Discovergy may also amend and supplement these GTC to the extent necessary to remedy difficulties in the performance of the contract due to gaps in the provisions that have arisen since the conclusion of the contract. This may in particular be the case if case law or the legal situation changes and one or more clauses of these GTC are affected.
1.3. Discovergy shall be entitled to adjust the product-specific service descriptions if this is necessary for a valid reason, if the Customer is not objectively placed in a worse position than the service description included in the contract and if it does not deviate significantly from this. There is a valid reason if there are technical innovations available on the market for the Services, or if third parties change their offer of advance services required for the Services of Discovergy.
1.4. Changes intended in accordance with clauses 1.2 and 1.3 shall become effective six weeks after notification of the customer. All other changes shall become effective if they have been notified to the customer in writing at least six weeks before they take effect and the customer does not exercise his special right of termination in writing within six weeks after receipt of the notification of change. The customer must be made aware of the special right of termination in the notification of change.
2. Conclusion of the contract
2.1. Unless otherwise stipulated in these General Terms and Conditions, the contract for the respective Service shall come into effect when a binding offer of the Customer has been accepted by Discovergy by means of an order confirmation. The offer shall be deemed accepted by Discovergy at the latest at the moment the service is provided by Discovergy.
2.2. Discovergy is not obliged to accept an offer. The customer is bound to his order to Discovergy for three months.
3. General description of services
3.1. Discovergy, as the metering point operator, offers a more efficient overview of energy consumption, statistical comparisons, indications of possible savings and indications of third-party products or services by evaluating the consumption data collected via the meters. The validity of all services (overviews, comparisons, notes, transactions) depends on the accuracy and timeliness of the data transmitted via the meter installed on the customer's premises.
3.2. Insofar as Discovergy provides the Customer with references to services or products of third-party providers (third-party offers from third-party providers) within the framework of consumption evaluation, the Customer is aware that these references may be based on contractual agreements between Discovergy and the third-party providers. Such allocations or any references to third-party offers are generated exclusively automatically. The review and plausibility check of these references to the individual consumption behaviour of the customer is the responsibility of the costumer. Discovergy does not assume any liability or guarantee for the availability of any services or products of third parties according to the information provided.
3.3. The Customer agrees that all Discovergy services shall be provided exclusively via the Internet and by means of electronic data processing and storage in an automated manner based on the consumption information collected and statistical comparison figures.
4. Participation in forums
4.1. Insofar as Discovergy grants its customer the opportunity to post messages within moderated forums and discussion groups, the customer grants Discovergy the necessary rights of use and exploitation, which are necessary for the publication of the text on the Internet/Forum, in particular the right of public access pursuant to § 19 a of the German Copyright Act (Urheberrechtsgesetz), by posting his message without payment or other consideration. Otherwise, the rights of use remain with the user.
4.2. The Customer is prohibited from publishing in forums, discussions or in any other way on the Website any content that violates legal provisions, the rights of third parties or morality. Discovergy reserves the right to shorten or delete individual postings or to exclude customers from participating in forums.
5. No financial, asset, tax or legal advice
5.1. Discovergy does not provide any advice in financial, asset, tax or legal matters with its range of services.
5.2. It is the responsibility of the Customer to check whether the information and offers derived from the consumption analysis by Discovergy actually meet the Customer's needs.
6. Term and termination, relocation
6.1. Unless otherwise agreed in writing with the Customer, the Contract shall have a minimum term of 24 (in words: "twenty-four") months. The contract can be terminated in writing by either party with three months' notice to the end of the minimum contract period. Otherwise, the contract shall be automatically extended further by 12 months and may be terminated by either party at the end of the respective term by observing the aforementioned period of notice.
6.2. The right of the parties to extraordinary termination for good cause remains unaffected.
6.3. An important reason for extraordinary termination on the part of Discovergy after the setting and unsuccessful expiry of a reasonable period of time determined for remedial action shall be deemed to exist in particular if
a. the customer is in arrears with his payment obligation for more than 14 days or
b. violates essential customer obligations and does not cease the violation within 14 days after request.
6.4. Notices of termination must be given in text form.
6.5. If the contractual relationship is terminated prematurely by extraordinary termination and if this termination is based on a breach of contract by the customer, the customer shall be obliged to pay the contractual remuneration up to the time of the ordinary termination of the contract.
6.6. In the event of relocation, the customer has a special right of termination to terminate the contract with effect from the end of the current contract year. The prerequisite for this is the provision of an official confirmation of change of address.
7. Provision of the service
7.1. Necessary prerequisite for the use of the Discovergy service is the installation of the meter at the Customer's premises.
7.2. The meter provided to the customer for the duration of the contract remains the property of Discovergy. Discovergy must be informed immediately if the right of ownership is impaired by seizure, damage or loss. If the customer is responsible for the impairment, Discovergy may terminate the contract extraordinarily and claim damages. In the event of destruction of the device due to intentional or negligent behaviour, the customer shall reimburse the necessary repair costs or, if repair is impossible, the replacement costs of the meter.
7.3. Discovergy reserves the right to adapt the scope of services to technical development or changes in regulatory or other circumstances essential for the provision of services, insofar as this is reasonable for the Customer. Furthermore, Discovergy reserves the right to change services and make changes to technology or systems, even if this requires structural measures or changes to the system settings, to the extent this is reasonable for the customer. Within the scope of its duty to cooperate, the Customer is obliged to respond to the request for change within the reasonable period set by Discovergy. If the Customer violates this obligation to cooperate, Discovergy may terminate the contract without notice after a further request for remedy, setting a deadline of three days, applying § 6.3 accordingly.
7.4. Discovergy is entitled to temporarily restrict or suspend the Service if this is necessary for reasons of public safety, data protection, combating spam and/or computer viruses/worms, or performing operational or technically necessary work. The above-mentioned restrictions due to maintenance, installation and conversion work are to be tolerated by the customer and are not included in the specified availability times.
7.5. Unforeseeable, unavoidable events that are beyond Discovergy's control and for which Discovergy is not responsible, such as force majeure, official measures, breakdowns of telecommunications connections or network elements of other network operators to which Discovergy must have recourse within the framework of the provision of its service, shall release Discovergy from the obligation to provide timely service for its duration and for a reasonable start-up period.
7.6. Any interruptions in operation necessary for the maintenance of devices and lines must be tolerated by the customer.
7.7. Within the framework of a radio-based Internet connection of the meter, the provision of services may be temporarily restricted due to technical changes to the radio systems and other measures. Furthermore, atmospheric conditions as well as topographical conditions and obstacles may interfere with the transmission speed and thus temporarily limit the scope of services. Discovergy will make all reasonable efforts to eliminate such temporary performance restrictions or faults or to work towards their elimination. Discovergy is not responsible for network operator failures. Clause 7.5 shall apply accordingly.
8. Obligations and duties of the customer
8.1. The Customer must provide Discovergy with an Internet connection to enable Discovergy to provide its service. If the customer does not have an Internet connection, the customer can only use the Discovergy service if he has additionally commissioned the Discovergy with the installation of a radio-based Internet connection at the customer's expense. The use of the radio-based Internet connection is limited to the provision of the Discovergy service.
8.2. The Customer shall tolerate the installation work required to provide the Discovergy service. This includes in particular providing access to the premises for the installation partner commissioned by Discovergy, protecting the premises from unauthorised access by third parties, taking care of the equipment installed by Discovergy and giving Discovergy access to the premises at any time for the purpose of carrying out maintenance work or, in the event of termination of the contract, for the purpose of deinstallation. Access dates shall be agreed with the Customer in advance. In the event of non-compliance with agreed deadlines, Discovergy shall be entitled to charge a lump-sum expense allowance of € 60.00 plus VAT at the statutory rate and to invoice this separately. The customer retains the right to prove that Discovergy incurred no damage at all or significantly less than the lump sum. Discovergy is entitled to withdraw from the contract and to claim damages if the initial installation of the meter fails for reasons for which the customer is responsible.
8.3. Once the installation has been completed, the Discovergy service is deemed to have been provided.
8.4. Insofar as Discovergy provides the Customer with access data for the provision of its services, this must be kept secret by the User. The Customer is obliged to bear all costs incurred due to misuse of the meter or the radio-based Internet connection provided.
8.5. Resale of the services to third parties is not permitted.
8.6. The Customer shall immediately notify Discovergy of any faults in the services. If the Customer is responsible for the malfunction, he shall bear the costs incurred as a result.
8.7. The customer is obliged to operate the system in accordance with the technical regulations (TAB) of the respective network operator.
9.1. Discovergy warrants the provision of its services only to the extent technically and operationally possible and in accordance with all provisions of these GTC. Within this framework, Discovergy will remedy faults in its services.
9.2. Discovergy has designed its platform to be available 24 hours a day, 365 days a year. Discovergy will make every technical and economic effort to dimension its systems to ensure maximum availability with short response times.
9.3. Discovergy reserves the right to temporarily restrict its services for any reason specified in these Terms and Conditions.
10.1. Discovergy shall only be liable for damages of the Customer (e.g. also in the case of installation work) if the damage (a) is due to gross negligence or intent or (b) in the case of slight negligence, insofar as it is a matter of breach of duty, the fulfilment of which is essential for the proper performance of the contract, the breach of which endangers the achievement of the purpose of the contract and on the observance of which the Customer regularly relies. In the event of (b), Discovergy's liability shall be limited in amount to such contractually typical damages as were reasonably foreseeable for Discovergy at the time the contract was concluded; this shall also apply to the extent of the damages. Within the scope of this limitation, typical contractual damage shall be a liability sum of up to € 2,500.00 per claim and liability sum of up to € 5,000.00 for several claims in one calendar year.
10.2. The statutory liability for personal injury as well as according to mandatory statutory provisions including the Product Liability Act shall remain unaffected.
10.3. Insofar as liability is effectively excluded or limited, this shall also apply to the personal liability of employees, other employees, executive bodies, representatives and auxiliary persons of Discovergy.
11.1. The Customer shall be obliged to pay the fees as set out in the price list or price quotation valid at the time the contract is concluded. Discovergy is entitled to charge all fees in advance.
11.2. All fees shall become due and payable upon receipt of the invoice. If the Customer has not granted Discovergy a direct debit authorisation, the invoice amount must be credited to the Discovergy account specified in the invoice by means of cashless payment transactions within five (5) working days of the invoice date. Discovergy is not obliged to accept payments by cheque. If the customer has given Discovergy a direct debit mandate (SEPA Direct Debit Mandate), Discovergy will debit the invoice amount from the customer's account five (5) business days after the invoice date. Discovergy will inform the Customer about the debit period of 5 working days after the invoice date in each invoice as a direct debit notice period (advance information or pre-notification). At the request of Discovergy, the Customer may be obliged to issue a SEPA Direct Debit Mandate. The customer shall be in default without a reminder being required if payment is not made in due time.
11.3. Fees and processing costs arising from the chargeback of direct debits shall be borne by the Customer at a flat rate of at least € 10.00 if the Customer is responsible for the chargeback. Discovergy shall be entitled to prove higher processing costs and the Customer shall be entitled to prove lower processing costs.
12. Set-off/right of retention/assignment
12.1. The customer shall only be entitled to set off undisputed, recognised or legally established claims.
12.2. The customer may only exercise rights of retention if his claims are based on the same contractual relationship.
12.3. The Customer may not assign claims against Discovergy to third parties without the consent of Discovergy. § 354 a HGB remains unaffected.
13.1. Insofar as necessary for the proper provision of the service provided by Discovergy in accordance with the Contract, Discovergy collects, stores and processes all data generated via the meter for the processing purposes specified in this Contract. The Customer hereby expressly agrees that
a. all personal data necessary for the establishment, performance and settlement of the contractual purpose set forth in these General Terms and Conditions and to the extent set forth below may be collected, processed and used by Discovergy. This applies to inventory data, for example name, address, e-mail, telephone and usage data such as consumption data, user name, password and IP address;
b. the consumption data automatically collected by a smart meter may be processed by means of electronic data processing in such a way that personal consumption and its composition can be depicted clearly and assigned to individual consumers/customers by data analysis;
c. the customer, on the basis of his consumption data and statistical procedures, may be given indications of possible savings and other financial benefits, where appropriate;
d. relevant offers and advertisements, including those from third parties, may be displayed to the customer on the basis of his consumption data;
e. all consumption data relevant to billing may be made available to the customer's energy supplier in accordance with the statutory provisions;
f. the anonymised and aggregated data may be used for market research, advertising, product development and comparison purposes and may also be passed on to third parties if necessary;
g. the customer's usage data may be collected, processed and used with the help of cookies, among other things, and may be used for system optimisation purposes.
13.2. Otherwise, the special data protection provisions published on the Discovergy website or used on order forms shall apply.
14.1. Discovergy is entitled to transfer rights and obligations under this Agreement in whole or in part to companies affiliated with Discovergy (cf. § 15 et seq. AktG), legal successors or transferors of business units. Discovergy will inform the customer accordingly in writing.
14.2. If declarations are to be made in writing in accordance with these Terms of Contract, they may also be made by telecommunication in text form (e.g. by fax or e-mail) or in other text form (e.g. online form on the Discovergy website).
14.3. The place of jurisdiction for all disputes arising from and in connection with the contractual relationship established by these contractual conditions shall be Aachen, provided that the customer is a registered merchant and the contract is part of the operation of his trading business.
14.4. Should any provision of these contractual conditions be or become invalid, this shall not affect the legal validity of the remaining provisions. In this case, the invalid provision shall be replaced by a valid provision which most closely approximates the economic intent of the parties. The same shall apply mutatis mutandis to the filling of any loopholes in the provisions.
14.5. All legal relationships between Discovergy and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany applicable to legal relationships between domestic parties.