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1 P&M Agentur Software + Consulting GmbH (hereinafter referred to as "P&M") provides all services exclusively on the basis of these GTC. Any deviations or additions must be made in writing. The client's general terms and conditions shall not apply unless P&M agrees to them in writing. The performance of a service shall not constitute consent.
2. these GTC shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal
legal entities under public law, special funds under public law and other institutional customers who are not acting for private purposes (and therefore not as consumers pursuant to Section 13 BGB) when placing an order. These GTC shall also apply to all future
transactions with the client arising from an ongoing business relationship.
(3) These GTC shall apply in particular to the creation and provision of software and accompanying services such as installation, implementation, customization, hosting and operation of software, conception, project management and training.
4 P&M shall inform the client in writing of any changes to these GTC. The amendment shall be deemed to have been approved by the client if it does not object in writing within six weeks of receipt of the notification of amendment. P&M shall draw attention to this consequence in the notification of amendment.
1. the content and scope of the services to be provided shall be determined by P&M's offer. Unless otherwise stated in the contract documents or the type of service to be provided, P&M shall be obliged to perform the contractual services with the care customary in the industry, but not to achieve a specific result. P&M may use third parties (including freelancers and subcontractors) to provide its services.
2. the client shall provide P&M with all documents and information required for the provision of services and any agreed supplies (e.g. software to be procured by the client) free of third-party rights immediately after the start of the contract. He shall also provide information during the execution of the contract,
documents and supplies immediately upon request by P&M. If the client recognizes that the information provided or its own information or requirements are incorrect or incomplete, it shall inform P&M of this and the consequences it recognizes without delay and take all necessary corrective measures.
(3) The client shall be responsible for the regular and proper backup of its data hosted by itself or an external service provider (e.g. data center), including the protection of the data against damage or loss during the performance of any agreed implementation services during which P&M accesses the client's systems.
4. the client shall also provide P&M with appropriate support at its own expense. In particular, it shall appoint a responsible, expert contact person (so-called product owner) who is authorized to make the decisions and take the actions associated with the execution of the contract. Further obligations of the client to cooperate may arise from the contract documents, in particular service descriptions.
5. if the client provides P&M with content that is uploaded to or implemented in an online platform, app or other electronic media, the client shall be solely responsible for the conformity of this content with all applicable laws and third-party rights. Furthermore, P&M is not responsible for checking compliance with
applicable laws or regulations in relation to the client's business transactions to which the services to be provided by P&M relate, nor shall P&M be responsible for checking the accuracy, completeness, integrity or authenticity of the data provided by the client for the provision of services or to be processed by means of the services provided by P&M.
1. when creating software, P&M shall use an agile development process within which the product owner appointed by the client shall actively manage the project. The client formulates requirements for the software. The parties map these
these requirements into stories, which the client's product owner formulates in consultation with P&M and places in a product backlog that both parties can access and in which the client can prioritize the tasks. P&M develops the software in iterations according to the backlog. The client may request changes at any time up to the start of the respective iteration, after which changes are only possible after express agreement with P&M. 2.
2. the client shall test P&M's services on an ongoing basis, including during ongoing iterations. At the latest after completion of an iteration, the completion of which P&M notifies the client, the client shall be obliged to test and approve the result of the iteration without delay or to notify P&M of the reasons for rejection. If the result is rejected, further processing shall take place in the next iteration step.
1 All prices are subject to the applicable statutory value added tax. Invoices are payable within 14 days of the invoice date without deduction.
2. if the parties agree on a quota of services which the client calls up successively within an agreed period, the quotas shown in the offer shall be deemed to be firmly agreed. P&M shall inform the client in good time before expiry of the period agreed for the call-off if and to what extent services have not been called off and shall offer the client these services for call-off. If the client nevertheless fails to call up the services in good time, P&M may demand full payment for the booked contingents. If P&M is able to deploy the resources scheduled for the client elsewhere, P&M shall deduct the amount thus obtained from the invoice. However, P&M shall not be obliged to generate alternative uses for its resources.
(3) The client shall reimburse reasonable expenses, including travel time.
4. the client shall only be entitled to offset if its counterclaim is undisputed or has been legally established. The client may also only assert rights of retention under the aforementioned conditions, whereby the counterclaim must be based on the same contractual relationship.
1. deadlines are always non-binding targets, unless they are expressly agreed in writing as binding.
2. the client shall only be entitled to withdraw from or terminate the contract due to default in performance if it has previously set P&M a reasonable deadline for performance and at the same time indicated that it will withdraw from or terminate the contract if the deadline expires without result, unless the setting of a grace period would be unreasonable for the client, taking into account all the circumstances of the individual case. In the event of default with only individual
services or partial services, the right of withdrawal or termination shall only extend to the (partial) service concerned.
3. delays in performance due to force majeure or other unforeseeable circumstances for which P&M is not responsible (e.g. strike, lockout, official orders, general disruptions to telecommunications or power supply, illegal activities by third parties on the Internet or sabotage by malware) shall not lead to default on the part of P&M. Agreed performance times shall be automatically extended by the duration of the hindrance plus a reasonable start-up period. If the hindrance lasts longer than three months, both parties shall be entitled to withdraw from or terminate the contract with regard to the part not yet fulfilled after the expiry of a reasonable grace period. Claims for damages against P&M shall not exist in such cases. If P&M recognizes that agreed deadlines cannot be met
P&M shall inform the client within a reasonable period of time.
1 P&M shall grant the client exclusive, transferable and sublicensable rights of use to work results created individually for the client, unless otherwise stated in P&M's offer or other contractual documents. For all other work results, P&M shall grant the client simple rights of use that are unlimited in terms of time and territory, bound in terms of content to the purposes of the contract and transferable and sublicensable only for these purposes. Insofar as P&M uses open source software ("OSS"), both P&M and the client shall be bound to comply with the applicable license terms, including any obligations to adopt OSS/copyright notices. P&M cannot grant the client exclusive rights of use to OSS components.
2. the client shall be entitled to further develop and process software provided to it for its own business purposes. However, regardless of whether exclusive or simple rights have been granted in accordance with §6.1 above, the client shall not be entitled to commercially exploit the software or further developed or edited versions like a software provider/distributor, e.g. to distribute copies or offer the software as a download, to make it available to third parties as client-capable software for offering a third party's own online platform, to use it for such third-party purposes or to have it used for such purposes. If the client wishes to commercially exploit the software as described above (e.g. as a so-called white label), it may negotiate this with P&M, including a reasonable commission for P&M. P&M shall decide on its consent at its own discretion.
3. any further use of the work results than that described in §6.1 and §6.2 or otherwise contractually agreed is not permitted. The right to the complete transfer of a legal position acquired through the purchase of software remains unaffected. The statutory minimum rights of the client according to §§ 69d and 69e UrhG also remain unaffected.
4. rights of use shall always be granted subject to a condition precedent and shall only become effective upon full payment of the contractual remuneration. P&M may provisionally permit the client to use the work results before this time. P&M shall retain title to any data carriers to be provided until the contractual remuneration has been paid in full.
5. in the event of an infringement of third-party property rights for which P&M is responsible, P&M may, at its own discretion and at its own expense, obtain a right of use sufficient for the contractual use and grant it to the client, or modify or re-perform the service while retaining the contractual possibilities of use in such a way that third-party property rights are no longer infringed. If this is not possible or unreasonable for P&M, the client shall be entitled to the statutory claims. Claims for damages shall be governed by §7 of the General Terms and Conditions of P&M Agentur Software + Consulting GmbH ("P&M").
1. regardless of the legal grounds, P&M shall only be liable for intent, gross negligence and the negligent breach of material contractual obligations or obligations whose fulfillment is essential for the performance of the contract and on whose compliance the contractual partner may regularly rely (so-called cardinal obligations).
2. in the event of simple negligence, P&M's liability shall be limited to the foreseeable damage typical for the contract; however, the maximum liability per claim shall be 50% of the contract value and for the contract as a whole to the contract value.
3. the limitations of liability pursuant to §7.1 and §7.2 shall not apply to damages resulting from injury to life, limb or health; to claims under the Product Liability Act; in the event of fraudulent intent; or if a guarantee of quality has been assumed.
4. if P&M provides the client with performance results for a limited period of time, the
liability for damages for defects already existing at the time of conclusion of the contract (§ 536a para. BGB) shall be excluded.
(5) P&M shall not be liable for the loss of data or programs to the extent that the damage is due to the fact that the client has failed to carry out regular and proper data backups and thereby ensure that lost data can be restored with reasonable effort.
6. to the extent that P&M's liability is excluded or limited, this shall also apply to the personal liability of P&M's legal representatives, employees and vicarious agents.
1. trade secrets shall be treated confidentially and shall not be made accessible to third parties, with the exception of any authorized third parties engaged for the execution of the contract, on whom the parties impose corresponding confidentiality obligations. The confidentiality obligation shall remain in force even after termination of the contract. It shall not apply to information which was demonstrably known to the receiving party at the time of disclosure by the disclosing party or which later becomes known without breach of a confidentiality obligation, which is generally accessible at the time of disclosure by the disclosing party or which later becomes generally accessible, which was demonstrably developed by the receiving party independently of knowledge of the information disclosed to it or of which it became aware under the contract, or in respect of which a disclosure obligation exists by virtue of statutory regulation or official order.
2. both parties undertake to comply with all applicable statutory data protection
data protection regulations. Insofar as P&M receives access to personal data from the client's area of responsibility during the provision of services, this shall constitute commissioned data processing in accordance with Section 11 BDSG.
parties conclude a separate order data processing contract at the request of the client.
The client recognizes P&M's legitimate interest in protecting its professional and technical know-how. During the collaboration and for a period of one year thereafter, the client undertakes not to entice away any of P&M's employees or freelancers deployed in the client's projects or to hire or employ them without P&M's consent, not even as freelancers. For each case of culpable infringement, the client shall pay P&M a contractual penalty to be determined by P&M at its reasonable discretion and, in the event of a dispute, to be reviewed by the competent court with regard to its appropriateness.
contractual penalty.
(1) P&M shall be entitled to name the client as a reference customer on its website or in other media and to use the client's company logo or company logo for this purpose within the scope of a revocable, simple right of use.
2. when distributing, publishing and/or making publicly accessible the services created by P&M for the client (e.g. websites, apps, etc.), the client undertakes to indicate in a suitable place that P&M acted as service provider for the client and to place a link to P&M's website, unless this would be unreasonable for the client in individual cases.
1. the assignment of claims and the transfer of the contract or individual rights or obligations to third parties by the client is only permitted with the prior written consent of P&M. § Section 354a HGB remains unaffected.
2. the parties shall agree any amendments or additions to the contract in writing.
3. notifications provided for in this contract, which must be made in writing, may also be made by email. However, this does not apply to declarations that lead to a complete or partial termination of the contract.
4. place of performance is Hamburg, provided the client is a merchant.
5. if the client is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be Hamburg.
6. the legal relationship between the parties shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
7. should individual provisions of the contract or these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
[As at: November 2017]