Termination of an “Internet Systems Contract”
The right to terminate an “Internet Systems Contract” pursuant to Sec. 649 German Civil Code (BGB) may not be validly excluded in general terms and conditions of the contractor.
The regional court in Schweinfurt decided that a clause in general terms and conditions of an “Internet Systems Contract” which excludes the right to terminate for convenience is invalid. The principal’s right to terminate the contract pursuant to Sec. 649 BGB may not be limited.
An “Internet Systems Contract” must regularly be deemed a contract to produce a work. An “Internet Systems Contract” usually encompasses construction and maintenance of an individually designed website as well as hosting and, in particular, a warranty that the website will be accessible for the term of the contract.
Long-term hosting agreements, where a specific uptime is warranted, may thus be terminated for convenience by the principal if the parties did not individually agree on an exclusion of the right to terminate for convenience. As a consequence of such premature termination the contractor may – depending on the facts of the individual case – be entitled to demand the contractually agreed fees less saved expenditure.
Regional Court Schweinfurt, decision dated 9 July 2010 (24 S 42/10)