General terms and conditions of business
(1) The company, Papoo Software & Media GmbH, Managing Director Dr. Carsten Euwens, Auguststr. 4, 53229 Bonn - hereinafter referred to as "Provider" - provides its services on the basis of these General Terms and Conditions. These also apply to further future business relations, even if no express reference is made to them.
(2) The Provider provides services in the field of marketing websites on the Internet, in particular so-called search engine optimisation as well as other Internet services and programming in the broader sense.
(3) Contradictory terms and conditions of the contractual partner are not recognized, even if they are known, unless the provider expressly agrees to their validity in writing. These GTC also apply in the case of unconditional execution of the service in the knowledge of conflicting conditions of the customer.
(4) Deviations from these GTC and from contractual agreements must always be made in writing. This also applies to the waiver of the written form requirement.
§2 Conclusion of contract and contractual partners
(1) The basis for the conclusion of the contract is the respective concrete offer of the provider, in which the scope of services and the remuneration are specified. The offers made by the provider are always subject to change.
(2) The customer can accept the respective offer by his declaration in text form within a period of maximum 6 weeks from the date of the offer, provided that no other date was mentioned in the offer. A later acceptance constitutes an application for the conclusion of a contract by the customer. The provider reserves the right to accept the offer.
(3) The provider is always entitled to entrust subcontractors with the fulfilment of all or individual contractual obligations.
§3 Subject matter of the contract
(1) The subject matter of the contract is initially determined by the specific contractual relationship. The present GTC shall serve to interpret the subject matter of the contract. In case of doubt, the contents of the contract take precedence over the GTC.
(2) In the case of creative activities (e.g. website design), the customer and the provider will always continuously discuss the progress and goal of the service. The aim is to produce the commissioned service in such a way that it corresponds to the customer's ideas while respecting the provider's creative freedom. After the number of drafts specified in the offer has been provided, a one-off correction phase shall take place, subject to any other arrangement. The number of any correction loops as well as the coordination phases shall otherwise result from the offer.
(3) In the case of creative activities, there is freedom of design which is only restricted by explicit specifications of the customer which have become the subject matter of the contract. Claims for defects and complaints with regard to design elements are excluded. If the design continues to be criticized by the customer after the correction phases provided for in the offer, the provider is only obligated to repeat the service in return for a separate fee.
(4) Services with regard to search engine placements and advertisements are always carried out by the Provider according to the scheme "analysis, consultation, optimisation, placement, updating, analysis...".
(5) In the context of media and ad placements, the advertising strategy is discussed with the customer in a briefing. The customer is responsible for the release of the selected advertising texts and keywords.
(6) Commissioned projects in the area of media planning are carried out by the Provider to the best of his knowledge and belief on the basis of accessible media documents and generally accessible market research data. The Provider does not owe the Customer a specific advertising success through these services.
(7) The booking of ad impressions, page impressions, clicks, etc. for a certain period of time is based on empirical values of the Provider and his suppliers. Should the booked volume be bindingly promised or guaranteed and not be exhausted within the agreed period, the placement period shall be extended until the agreed booking volume is reached. Deviations of up to 15% shall be deemed minor or not to constitute a defect or overfulfilment. The Customer shall notify the Provider in text form of any possible complaints about the media service within 48 hours of placement.
(8) Search engine optimisation provided by the Provider is based on what is customary in the market when the contractual service is provided. Naturally, the requirements for good search engine visibility can change quickly and without notice. Furthermore, not all factors of an optimization can be depicted on the software side alone; rather, a content-side support is required. Therefore, no liability can be assumed for a good placement in a search engine.
(9) During search engine optimisation all parties agree on factors to be optimised. The provider proposes the optimizations to the customer. The customer is responsible for the selection of the desired optimization.
(10) Without a separate agreement, the Provider is not obligated within the scope of the warranty to provide (software) updates or upgrades to its services or to otherwise keep the subject matter of the contract up to date, in particular not if third-party products change.
(11) Support services after handover of the subject matter of the contract to the customer shall be remunerated separately, unless they are covered by the contract. As a rule, this includes queries from the customer, support services from the provider, etc.
(12) Additional services and functions of third parties may also be included in the contract. With regard to these services, the general terms and conditions of the third party shall then apply in addition.
§4 Order Processing & Cooperation Duties of the Customer
(1) The customer must immediately provide the provider with all information and documents that are necessary for the provision of the service. This includes in particular information on his existing IT system, intended hardware extensions or functional aspects. The information will not be checked for accuracy by the provider.
(2) If the customer wishes to integrate optimizations himself or if he does not release the necessary access for the provider, the provider will make the contents to be optimized available to the customer for his own integration.
(3) If the Customer wishes the Provider to integrate the Provider's services, the Customer shall in particular grant the Provider access to its databases and websites as well as to other systems (tracking tools or similar) necessary for the performance of the contract. The same applies if it is not possible for the Provider to enter any services or content on the Customer's website for other reasons.
(4) The Customer shall either provide texts, search terms and/or search term combinations to be optimized or select them from a pre-selection made by the Provider.
(5) The Customer is obliged to check the documents provided for the execution of the order (texts, photos, logos, data sets, etc.) as well as search terms selected by him for any existing copyrights, trademark rights or other rights of third parties. If a claim is made against the Provider due to such an infringement, the Customer shall indemnify and hold the Provider harmless.
(6) If the Provider uses software of third parties for the production of the subject matter of the contract and / or if this is done at the request of the Customer, the Customer shall provide for a license for use itself. The scope of services depends on the respective functional scope of the third party product.
(7) Insofar as contracts for third-party services are concluded for the Customer in the name of and for the account of the Provider, the Customer undertakes to indemnify the Provider internally against all liabilities arising therefrom.
(8) The customer must inform the provider without culpable hesitation of any necessary changes to the customer's data that affect the processing of the order or services rendered within the scope of an ongoing order.
(9) If the customer does not comply with his obligations either immediately or despite a deadline that may have been set, the provider cannot provide his services or can only do so to a limited extent. This has the consequence that the optimization measures do not take effect at all or only very delayed. The Provider reserves the right to terminate and invoice the activity in this case.
(10) From the conclusion of the contract, the Provider is entitled to start the execution of the contractual service immediately.
(11) Irrespective of the concrete contractual relationship, the provider remains entitled to incorporate findings and other know-how which he obtains from the project with the customer into other projects; unless it is a matter of contents which the provider has explicitly undertaken to keep secret.
§5 Changes in performance
(1) Changes in current orders can cause costs under certain circumstances. The customer should contact the provider as soon as possible if he recognizes a necessary change. The provider will act in the same way.
(2) The provider will inform the customer about the effects of the desired change, in particular with regard to remuneration, additional work and deadlines. The contracting parties will immediately agree on the proposal for the implementation of the change request and, if necessary, conclude a supplementary agreement. If no agreement is reached or if the change procedure ends for any other reason, the original scope of services shall remain unchanged.
(3) The dates affected by the change procedure shall be postponed to the extent necessary, taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period. The Provider shall notify the Customer of the new dates.
(4) The Provider shall not be liable for delays, legal or technical problems or other adverse effects on the object of performance of a project if the Customer has disregarded the Provider's proposal for a change in performance.
(5) If the customer wishes to pause the project, the provider is entitled to charge for services already rendered. The provider will inform the customer if the pause can have an effect on the possible success of the planned service.
(1) The provider is entitled to demand one or more interim acceptances from the customer of definable parts of the service to be provided (interim acceptance). The customer is obligated to accept the service that is essentially in accordance with the contract after being requested to do so by the provider. Acceptance may not be refused for reasons of taste.
(2) Requests for acceptance and the acceptance itself may be made in text form (e-mail).
(2) Proofs are to be carefully checked by the customer. Error corrections are to be clearly marked. Any fundamental or subsequent requests for changes may incur costs.
(3) Upon notification of completion of a (partial) service or in the case of final acceptance, the customer is obliged to carry out an inspection of the (partial) service to determine whether the services have essentially been provided in accordance with the contract.
(4) If the Customer does not consider the services rendered to be essentially in accordance with the contract, he must notify the Provider of any complaints in a comprehensible manner and in text form without culpable hesitation. This notification must be sufficiently specific to enable the Provider to remedy the defect without further inquiry of the Customer. If the services to be accepted are presented and discussed in an on-site meeting, the customer must notify the provider in text form within a period of 7 days after the meeting if he does not accept the services, unless a different procedure was mutually agreed between the parties in the meeting. After fruitless expiry of the deadline, the services presented shall be deemed to have been accepted.
(5) Acceptance shall be deemed to have taken place if the Customer does not accept or refuses to accept the services within a reasonable period of time set by the Provider in text form after handover or if the services have been used by the Customer within the intended scope.
(6) If the customer complains about services in due time, the provider will carry out a rectification of defects. The rectification is based on the customer's specifications if the customer's complaint was so specific that we can rectify the service without further inquiry from the customer. If the complaint is not so concrete, the supplier is only to carry out an industry-standard rectification at his own discretion.
(1) Costs and prices result from the offer.
(2) If no agreement has been made on the remuneration of a service, the provision of which the customer could only expect according to the circumstances in return for remuneration, or if the scope of the contractually agreed service is exceeded, the customer must pay the remuneration customary for this service in accordance with the prices stated in the offer.
(3) Unless otherwise agreed, expenses shall be reimbursed separately.
(4) The provider's fee claim arises for each individual service as soon as it has been rendered. The provider is entitled to issue invoices at reasonable intervals according to the respective amount of work performed and the expenses incurred.
(5) The provider is entitled to demand advance payments to cover expenses.
(6) For all work of the provider, which is not carried out for a reason for which the customer is responsible, the provider is entitled to an appropriate remuneration. With the payment of this remuneration, the customer does not acquire any rights to this work; concepts, drafts and other documents that have not been executed are to be returned to the provider without delay.
(7) Recurring services, e.g. service/support packages, shall be invoiced by the Provider on a monthly basis. At the Provider's discretion, it is possible to switch to a different billing interval. Unused hours expire at the end of the respective month. Example: Service package contains 12 hours per month, only 9.5 hours are used, 12 hours are billed because the 12 hours are reserved for the respective customer.
(8) In the absence of contractual agreements, the provider shall refer to the remuneration specifications of a relevant industry association.
(9) Prices are, as far as not otherwise designated, in Euro and plus the legal value added tax.
(1) Payments can be made as agreed by direct debit, bank transfer or Paypal. Invoices will only be accepted by separate agreement. Invoices are issued by arrangement for services to be rendered. If there is no agreement, payment will be made in advance. Up to the payment a right of retention exists concerning the achievements of the offerer.
(2) If the amount to be paid is collected by the provider from the customer, it applies, in deviation from the legal regulation, that the advance information (pre-notification) must be available to the customer one to three days in advance.
(3) Invoices are due immediately and without deduction and are collected accordingly by the Provider. Receipt of payment is deemed to have been made when the amount is credited to the Provider's account
(4) Setup fees are due immediately after conclusion of the contract. Monthly fees are also due without any other clarification on the last day of the month in which the service is to be provided.
(5) Should the customer be in arrears with the payment of a total of two instalments, the costs incurred for the entire term shall be due immediately. In the event of default, the Provider is also entitled to charge annual interest at a rate of 5 percentage points above the base interest rate, or 8 percentage points above the base interest rate for entrepreneurs, and to withhold deliveries or other services from this or other transactions until all claims from this or other orders have been met in full.
(6) Offsetting with counterclaims is only permitted if the supplier acknowledges the counterclaim or if the counterclaim has been legally established or is undisputed. The customer waives the assertion of a right of retention from previous or other transactions from a business relationship with the provider. All payments are always credited to the oldest debt, regardless of any other provisions of the customer. Partial services can be invoiced separately.
(7) The provider reserves the right to charge a lump sum of 15.00 EUR per necessary letter in case of default as well as for the processing of reminders. Furthermore, in the event of default, the Provider reserves the right at any time, at its discretion, to call in legal assistance (lawyer or collection agency) to pursue claims.
(8) As payment condition "immediately after receipt" is considered as agreed.
§9 Data of the customer / data on the website of the customer
The customer is responsible for all data on his websites and servers. Regardless of whether the provider has contributed to parts of the data, the customer assumes full responsibility for data on his websites and servers as a result of his acceptance of the services, also in relation to the provider. In this respect, the customer is solely responsible for the legal admissibility of the contents of his pages provided by him as well as for the information provided by him, in particular the search terms, keywords, terms to be optimized and texts. The same applies to the protection of the rights and freedom of third parties, in particular with regard to copyright, competition law, trademark law and criminal law. This also applies to search terms, keywords, terms to be optimized and texts selected by the customer, which are based on a suggestion made by the provider during the analysis phase.
§10 Data protection
(1) The applicable data protection regulations - in particular the Federal Data Protection Act (BDSG), the Teleservices Data Protection Act (TDDSG) and the Telecommunications Data Protection Ordinance (TDSV) - are adhered to by the Provider in their respective applicable versions. Employees will only receive knowledge of the access data or access to data stored by the customer if this is absolutely necessary for the execution of the respective contractual relationship.
(2) With the conclusion of the contract, the customer agrees that, within the framework of the contract concluded with him, data about his person will be stored, changed and/or deleted by the provider and his vicarious agents and, if necessary, transmitted to third parties. This applies in particular to the transmission of data necessary for the registration and/or modification of a domain in search engines or similar, whereby these may subsequently become public.
(3) The customer is a client in the sense of the data protection law. As far as necessary, the Provider will sign the necessary documents for the Order Data Agreement to the Customer. The provider assumes that the customer will communicate this necessity and will send the provider corresponding agreements.
§11 Delivery o Deadlines
(1) Deadline agreements, in particular those which cause a party to be in default without a reminder in accordance with § 286 (2), must be recorded in writing and/or confirmed. Delivery deadlines are only binding if the customer has properly fulfilled any obligations to cooperate (e.g. procurement of documents, information, releases, etc.).
(2) If execution or completion deadlines have been specified by the Supplier and made the basis for placing the order, such deadlines shall be extended in the event of strikes and cases of force majeure, namely for the duration of the delay.
(3) Insofar as an unexcused delay in the contractually agreed execution and completion deadlines has occurred, the Customer shall only be entitled to assert the rights to which he is entitled by law after he has granted the Provider a reasonable grace period of at least 14 days. This period begins with the receipt of a reminder letter to the provider.
§12 Contract duration and termination
(1) The contract duration and period of notice is determined by the specific contractual agreement. Within the framework of this period, both parties can terminate the contract without stating any reasons by giving notice to the end of the respective contract period. The termination must be made in writing and sent to the provider. The receipt of the notice of termination is decisive for the observance of the period.
(2) If the contract is not terminated in due time, the contract is automatically extended by the agreed minimum contract period.
(3) The parties reserve the right to extraordinary termination.
(4) In the event of ordinary termination, the Provider shall be entitled to continue to perform the service as contractually owed until the end of the contract term, unless the Customer releases the Provider from this. A release does not release the customer from paying the agreed remuneration for the service of the provider. After the end of the contract the service obligation expires immediately.
§13 Copyright & Trademark Law
(1) All creative services of the provider or third parties engaged by it, including those from presentations, including individual parts thereof, remain the property of the provider, even if they are charged separately.
(2) By paying the fee, the customer acquires the right to use the content created in accordance with the contract for the agreed purpose and to the agreed extent of use, in particular insofar as the purpose results from the offer or the contract. In the case of a license payment for rental, the right of use ends with the cessation of the license payment; in the case of the purchase of a license for installation, the right of use never ends.
(3) Modifications of the Provider's services, such as their further development by the Customer or by third parties acting on behalf of the Customer, are only permitted with the express consent of the Provider and - insofar as the services are protected by copyright - of the author. In addition, a customary use of e.g. created websites remains of course permitted as subject matter of the contract.
(4) In the case of the creation of software or other IT projects (websites, databases, etc.), the Provider is not obliged to provide the software in an open source state or the associated development documentation. The customer is not allowed to interfere with the source code of the created software or to decompile it, unless there is an exception according to the copyright law or it is explicitly mentioned in the offer or order.
(6) The Customer shall emphatically oblige its employees to comply with the contractual terms and conditions and copyright law vis-à-vis the Provider. In particular, the Customer shall request its employees not to make any unauthorized copies of the program or the user documents. If an employee of the customer violates the copyright of the provider, the customer is obligated to cooperate in the clarification of the copyright infringement, in particular to inform the provider immediately about the corresponding acts of infringement.
(7) If services of third parties are used in the service of the provider, which fall under a so-called free license (e.g. GNU license), there is nevertheless no right of the customer to declare the services of the provider also as free services, to pass them on to third parties or otherwise make them accessible to the public of third parties.
(8) The customer is exclusively responsible for the content of his website. This applies in particular with regard to copyright, protection of minors, telemedia, press, trademark, competition law and the right to one's own image as well as other possible legal areas.
(9) Irrespective of the specific contractual relationship, the Provider shall be entitled to incorporate findings and other know-how obtained from the project with the Customer into other projects as well; unless the content in question is content to which the Provider has explicitly committed itself to secrecy.
§14 Warranty, obligation to give notice of defects, default in performance & liability
(1) The warranty period for the services provided by the provider is twelve months, unless a defect was fraudulently concealed.
(2) The customer has to examine (completely) rendered services immediately after delivery, as far as usual in the ordinary course of business, and to notify the provider immediately if a defect appears. If the Customer fails to notify the Provider, the service shall be deemed to have been approved, unless the defect was not apparent during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise the performance shall be deemed approved also in view of this defect. The provisions on the obligation to give notice of defects shall not apply if a defect was fraudulently concealed. The regulations on the acceptance of the service take precedence.
(3) The Customer shall support the Provider to the best of its ability in the event of a possible rectification of defects and shall completely back up programs, data and data carriers before rectifying the defect. The presentation of defects shall be made in such a way that the defect is reproducible and identifiable by the Provider with reasonable effort. Non-reproducible and one-off errors do not constitute a defect in the contractual service. If defects can only be remedied with the Customer's cooperation, the Provider may consider the contract to have been fulfilled after the fruitless expiry of a period of at least two weeks set for the performance of the corresponding action.
(4) In the event of a defect, the Provider shall have the choice of subsequent performance. The supplementary performance will be carried out within a reasonable period of time regardless of the number of attempts. The right to self-execution is not available to the customer. If a defect cannot be remedied even after two repeated attempts and after setting a grace period of four weeks, the customer is entitled to terminate the contract in writing with immediate effect; the customer shall not be entitled to any further claims for damages. The Provider may refuse subsequent performance as long as the Customer has not yet fully paid the remuneration owed for the creation services and the outstanding remuneration is not disproportionately high, taking into account the defect.
(5) The customer's warranty rights shall not apply in the event of defects that are directly or indirectly attributable to deliveries and services provided by the customer or content provided by the customer, or if the customer has made changes to the service provided by us or has had such changes made by third parties, unless these changes had no influence on the occurrence of the defect.
(6) In the event of force majeure for which neither party is responsible, neither party shall be liable to the other for any delay or non-performance of the service resulting therefrom.
(7) The customer is aware that most search engine providers are entitled according to their guidelines to delete individual web pages from their search offer or to change the search algorithm at any time. The provider cannot assume any liability for such a course of action.
(8) In no case is the provider liable for factual statements about products, services or business relationships that originate from the customer or that the customer has approved. The provider will point out legal risks, if they become known to him during the activity; however, there is no obligation to check the existence of such risks. The customer indemnifies the provider against claims of third parties. Notwithstanding this, the provider is entitled to refuse a service in the event of significant legal risks.
(9) The Provider is liable for intent and gross negligence in accordance with the statutory provisions. The Provider shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the Customer may regularly rely, as well as in the event of damage resulting from injury to life, limb or health. In the event of slight negligence, liability is limited to the amount of the foreseeable damage, the occurrence of which must typically be expected, i.e. to the order value. Liability according to the Product Liability Act remains unaffected by the limitation of liability. The liability regulations also apply to the benefit of the Provider's vicarious agents.
(10) The Provider shall not be liable for the loss of data insofar as the damage is due to the fact that the Customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
(11) If the Provider acts on behalf and for the account of the Customer vis-à-vis third parties, there shall be no liability for defects in the performance of the third party at the expense of the Provider. If necessary, the provider will assign rights against third parties to the customer.
(12) In the event of an infringement of industrial property rights or copyrights due to the fault of the Provider, the Provider may, at its own discretion and at its own expense, make changes with regard to the affected service after prior consultation with the Customer which, while safeguarding the interests of the Customer, ensure that an infringement of property rights no longer exists or acquire the necessary rights of use for the Customer. The customer is obliged to inform us immediately about third parties who assert claims against the customer because of our performance and in this case not to enter into communication with the third party without consulting us.
(13) Furthermore, the provider is not liable for the economic success of the proposed or implemented measures. The customer is aware in this respect that the placement of the website to be optimised in the search engines cannot be guaranteed by the provider, as this is solely at the discretion of the respective search engine operator. The customer is also aware that achieved rankings can change at any time, e.g. due to search algorithm changes carried out by the search engine operators.
(14) All mentioned limitations of liability apply accordingly also in favour of the employees and agents of the Provider.
(15) Exclusions of liability in this section also apply to claims for defects.
(15) The provider cannot give any warranty for an uninterrupted and trouble-free functioning of the services and functions provided by third parties (e.g. search engine, online tools, social media sites, etc.).
(16) In the case of third-party products used (CMS, tools), no warranty can be given for the up-to-dateness of third-party products. Likewise, it does not constitute a warranty case if third-party products are changed in such a way that the originally usable products become unusable or limited in their function as a result of an update. Adjustments due to changes to third-party products shall be remunerated separately.
(17) The provider does not compensate the customer in case of non-publication or deletion (also for reasons of a search engine policy violation) of his website, on the part of one or more search engines, as this is solely at the discretion of the search engine operators.
(18) Compensation for consequential damages, financial losses, lost profits, savings not achieved, loss of interest and damages from third party claims, also from the title of product liability against the client, is excluded in any case.
§15 Confidentiality & References
(1) The customer shall keep all know-how accruing to him through the work of the supplier, as well as any business or trade secrets to himself and shall contractually oblige his employees and freelancers or other vicarious agents to do so. This does not apply if the information is generally known. The secrecy applies in particular to information about search habits and technologies of the search engines as well as to such information which concerns the general procedure or the correspondence with the provider. This obligation also applies for two years after the end of the contract.
(2) For advertising purposes, the Provider may name the Customer as a reference customer. The Provider has the right to name the Customer on its websites, in social media channels, in press releases, in print projects, in the context of lectures or in other media, unless the Customer expressly prohibits this in writing, and to use the Customer's logo. The customer agrees that the provider may also use the results of the service provision or parts thereof free of charge as a reference for self-promotion and customer consulting. In any case, even if the customer has been granted the right of use, the provider remains entitled to use all drafts, concepts and other works in the context of self-promotion.
§16 Place of performance and jurisdiction
(1) Place of performance is the registered office of the provider.
(2) Legal disputes arising from or in connection with this contract shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law or if the customer has no permanent residence in Germany, the place of jurisdiction for legal disputes arising from or in connection with this contract is the registered office of the provider.
§17 Final provisions
(1) This contract regulates all rights and obligations of the contracting parties in connection with the agreed services.
(2) If a provision of this contract proves to be invalid or void, this shall not affect the validity of the remaining provisions of the contract. In this case, the parties shall agree on effective substitute provisions which come as close as possible to the ineffective provisions in their regulatory intentions and in their economic effects. The foregoing shall apply mutatis mutandis to unintentional loopholes.
(3) Amendments and supplements to this contract shall be documented in writing.
(4) This contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980 (UNCITRAL Sales Convention) and the international conflict of laws rules applicable at the customer's place of business and the Federal Republic of Germany (for the FRG - Introductory Act to the German Civil Code).
(5) Subject to a deviating - according to German law - exclusive place of jurisdiction, the parties agree that the registered office of the Provider shall be the place of jurisdiction for all legal disputes arising from or in connection with this contract. The provider remains entitled to bring an action against the customer at the court responsible for the customer's registered office.
(6) In the event of ambiguities or contradictions, the respective orders, including the description of services, shall take precedence first, followed by these GTC.
(7) Status of these GTC: 01.02.2015
Software Usage Agreement
The manufacturer is the owner of the license rights and marketing rights of the software "CCM19" and any individual modules and the documentation.
The customer is the purchaser of the software or user of the service and the associated rights of use, which are listed below.
2 Subject matter of the contract
Thesubject matter of this contract is the delivery of the software purchased from the manufacturer in the respective version ordered and the granting of a right to use the software under the conditions of this contract.
The manufacturer provides the programs in machine-readable form with the user documentation. The documentation will be delivered as a machine-readable document.
The use of the software is only possible after acceptance of the terms of this user agreement. By using the software, the customer expressly declares that he has read and accepted this user agreement.
§ 3 Right of Use at Purchase
The manufacturer grants the customer the non-transferable, personal, non-exclusive and, at the time of purchase, temporally unlimited right to use the software purchased from the manufacturer and the user documentation belonging to this software in accordance with the conditions of this agreement. The customer is not entitled to allow third parties to use the software.
The customer is responsible for the use of the software and for the results obtained with it. The customer is also responsible for the selection and use of other software, hardware and services in connection with the software that is the subject of the contract, i.e. the customer himself must ensure the necessary compatibility.
§ 4 Scope of the right of use
Use is understood to mean loading and executing the program from servers in the system environment currently supported by the manufacturer as well as using it to solve tasks. The customer may only modify and edit the software for his own use, but may not duplicate it (with the exception of making a backup copy) and may not make the source code available to third parties. He may not use the program to create identical or essentially similar software.
5 Rights to the software
The customer acknowledges that he has no rights to the software other than those agreed in this contract and that all other rights, in particular all rights of exploitation and disposal over the software, belong exclusively to the manufacturer.
The Manufacturer draws attention to the fact that, according to the state of the art, it is not possible to create software in such a way that error-free operation in all applications and combinations can be guaranteed. However, the manufacturer guarantees to work constantly on the improvement of the software and is grateful for every error message.
The manufacturer warrants that the software can be used in accordance with the currently released documentation and in the current system environment and that it essentially fulfils the functions stated therein.
A defect shall only be deemed to exist if the subject matter of the contract does not comply with the documentation generally announced and valid at the time of shipment or download of the subject matter of the contract, although the subject matter of the contract is used under the announced conditions of use.
To the extent permitted by applicable law, the warranty is limited to 6 months after delivery of the software, unless a separate agreement has been concluded for the further maintenance of the software. If no notice of defect is given by the customer within the 6 months after delivery, the customer shall be deemed to have accepted the software free of defects.
The manufacturer will either replace software for which a defect in the sense of the above point is reported within 6 months of its installation with a defect-free copy or eliminate the defect, provided that:
1. the software has always been used properly and also in accordance with the instructions,
2. the software has not been edited, further developed or linked to other software, except via the freely given interfaces,
3. the defect complained of is reproducible at the manufacturer;
4. the system environment specified in the current documentation is sufficiently configured (e.g. operating system, PHP/MySQL versions).
The manufacturer does not guarantee that all program errors can be eliminated; further not for errors, malfunctions or damages that are due to improper operation. The manufacturer is not liable for errors or damage caused by errors in the server operating system or in browsers used to operate the software.
It is expressly noted in this connection that no warranty or compensation is given for errors that occur as a result of changes or adjustments to the program by the customer himself.
If the customer suspects a defect in the software that is covered by the warranty, he must inform the manufacturer immediately and send him a detailed description of the defect.
The manufacturer shall analyse the information sent by the customer and carry out the necessary corrections to the software or take other measures which, at its discretion, appear suitable for avoiding and/or preventing such errors in the software.
It shall send the customer the corrected program and/or a list of the measures to be taken by it.
If the manufacturer determines that suspected errors in the software are not defects covered by the warranty, that they are due to input errors or improper use of the software, or that they have their cause in the hardware, he may charge an appropriate fee for the personnel and computer time spent investigating the suspected errors and for the associated expenses. The customer shall reimburse these at the currently valid charging rates, unless individual charging rates have been agreed.
7 Requirements for the use of the software
The customer guarantees the following technical requirements for the installation, the trouble-free operation and the use of the software.
web server with PHP version 7.2 or higher
a MySQL database version 5.0 or higher
8 Compensation and product liability
The manufacturer is only liable for damages, as far as intent or gross negligence can be proven, within the scope of the legal regulations. Liability for slight negligence is excluded. In any case, damages shall be limited to the greater of the following amounts:
(1) the remuneration for the software which caused the damage or is directly related to it. The remuneration valid at the time the claim arose shall be decisive.
(2) In the case of maintenance contracts, the amount of compensation is limited to the average annual fee.
Compensation for consequential damage, financial loss, loss of profit, savings not achieved, loss of interest and damage from third party claims, also from the title of product liability against the client, is excluded in any case.
The manufacturer is liable for damages caused by his assistants or employees only insofar as the damage was caused by an act of gross negligence which was unavoidably necessary for the fulfilment of the contractual obligations.
Compensation for the destruction of data or software shall only be paid in any case insofar as the customer has fulfilled his obligations to operate a computer centre properly (e.g. documented data backup and outsourcing in at least three generations). This shall also apply if the manufacturer has previously been advised of the possibility of such damage.
The manufacturer is not liable to the customer for damages that are somehow related to or as a result of the results of the software. The customer and his employees remain responsible for checking the results obtained with the software and for the liability. The manufacturer is limited to the correction of errors and defects of the purchased software in accordance with the provisions of the contract item.
The Customer alone is responsible for controlling the input of data for the Software and the resulting output data and shall indemnify the Manufacturer for all claims for damages, including those for the Manufacturer's omissions, based on or somehow related to the use of the programs or the data obtained with them.
The producer is also not liable for damages or loss of data caused by failures or errors of the web server (including PHP and MySQL) on which the software is running or by errors in the browser software used as well as its guest system.
§ 9 Data backup
It is the customer's responsibility to avoid data loss by making regular data backups.
§ 10 Duration of the agreement
The manufacturer grants the customer the right to use the software for an unlimited period of time, but may terminate this agreement for good cause with immediate effect by registered letter, without the customer being entitled to any, even partial, repayment of the fee. An important reason is in particular:
(1) a serious breach of contract by the customer, which is not remedied despite a reasonable grace period,
(2) the opening of preliminary, composition or
bankruptcy proceedings on the assets of the customer or the rejection of bankruptcy proceedings for lack of assets covering costs.
Upon termination of the contract, the customer shall delete the software on the web server, confirm this in writing at the request of the manufacturer and also delete the software on data carriers together with the documentation including all reproductions (copies), even if only partial.
The customer may make copies, excerpts or even partial copies of documents, records, notes, drafts, descriptions, diagrams, programs, etc., which he has received from the manufacturer, in whatever form, only if and to the extent that this is necessary for the performance of this contract.
The customer shall carefully store all items specified in this contract item and protect them against their contents coming to the knowledge of unauthorized persons. The Customer acknowledges the Manufacturer's exclusive ownership of the same and shall surrender the same to the Manufacturer upon termination of the Agreement and shall have no lien on the same.
General Explanations and Conditions of the Software Usage Agreement and the Software Maintenance Agreement
1 Remuneration and Terms of Payment
The invoices issued by the Manufacturer are payable without any deductions and free of charges no later than 30 days after the invoice date or on the due date.
If a direct debit order is issued, the debit will be made at the beginning of each month or on the date of the first posting.
2 Secrecy, Security
(1) The parties undertake to maintain secrecy for an unlimited period of time with regard to the business or trade secrets provided to them or to which they have access, which are subject to data protection, which constitute competition-relevant know-how or which are marked as confidential (hereinafter referred to as "confidential information").
(2) The Confidential Information may only be used within the scope of the purpose of the contract. Beyond that, it may neither be recorded nor passed on or used for own purposes. The Contractor shall ensure by means of suitable contractual agreements with the employees and agents working for him that these also refrain for an unlimited period from any use, disclosure or unauthorised recording of confidential information. The transmission of confidential information shall not constitute the granting of a licence unless expressly agreed otherwise.
(3) The duty of confidentiality shall apply to any form of knowledge gained, whether verbally, in paper form or in electronic form (by data transmission or on data carriers), by allowing inspections or in any other way by direct or indirect transmission.
(4) The parties shall take all reasonable precautions to prevent access by third parties to confidential information of the other party (e.g. access control).
(5) The parties are entitled to create physical or electronic files in connection with individual business transactions during the ongoing business relationship.
§ 3 Other provisions
(1) This contract regulates all rights and obligations of the contracting parties in connection with the agreed services.
(2) If any provision of this contract proves to be invalid or void, this shall not affect the validity of the remaining provisions of the contract. In this case, the parties shall agree on effective substitute provisions which come as close as possible to the ineffective provisions in their regulatory intentions and in their economic effects. The foregoing shall apply mutatis mutandis to unintended loopholes.
(3) Amendments and supplements to this contract must be documented in writing.
(4) This contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980 (UNCITRAL) and the international conflict of laws rules applicable at the customer's place of business and the Federal Republic of Germany (for the FRG - Introductory Act to the German Civil Code).
(5) Subject to a deviating - according to German law - exclusive place of jurisdiction, the parties agree that the Manufacturer's registered office shall be the place of jurisdiction for all legal disputes arising from or in connection with this contract. The Manufacturer shall remain entitled to take legal action against the Customer at the court responsible for the Customer's registered office.