General Terms and Conditions (GTC) for plentymarkets and PlentyONE, License Agreement, and Consultancy Services


(referred to hereinafter as “Provider”)

Recitals

These terms and conditions also apply to customers of PlentyONE GmbH who have a contract named “plentymarkets” with PlentyONE GmbH.

WHEREAS Customer, for implementing its business processes, requires standard software applications and storage space for storing the generated application data. The purpose of the application is to handle e-commerce business processes (online trading).

WHEREAS Provider offers the temporary use of the software applications on computers and servers and the possibility to store application data for a fee.

WHEREAS in addition, Provider offers further services. These are provided to the agreed extent.  

WHEREAS the parties agree with these GTC that Provider provides Customer with the possibility to use the required software applications by access via a telecommunication connection and with storage space for Customer’s application data.

WHEREAS these GTC shall also apply to contractual relationships with Customers that use the software on their own hardware. If, in addition to the licence agreement, a support and maintenance agreement is entered into with Provider, the present GTC shall apply to that agreement. 

WHEREAS these GTC shall also apply to services provided by affiliates of PlentyONE GmbH (group companies) within the meaning of § 15 AktG (German Stock Corporation Act). Such affiliates shall not be considered as third parties or subcontractors within the meaning of these GTC. 

Part A - Software services

§ 1  Contract subject

(1) The subject of this contract is the provision of the Contractual Service. The Contractual Service includes the software“ and of storage space for storing the data generated thereby against payment of the agreed fee. The overall service consisting of the provision of the software and further services and service components may be called "plentymarkets" or "PlentyONE". The scope of the services to be provided shall be specified in the accepted order or the documentation of the agreement. 

(2) The functionalities of the software can only be used with an access software. The respective current versions of the commonly used Internet browsers are suitable as access software. The access software will not be made available by Provider. Customer itself shall procure the access software at its own risk. 

(3) In addition, if established between the parties by separate agreement, Provider provides Customer with the following: access to the existing communication infrastructure, additional storage space on a server, the possibility to use value-added services, maintenance and administration of data processing equipment and communication infrastructure. The details and scope of these services shall be conclusively determined in the appropriate service order and by the features which the user selects by configuration. 

(4) Provider may further develop its software, which may involve an adjustment of its visual appearance, operation and functionality. The further development of the software and  adjustments can help to align the features, functions and services with technical, legal and other objectively identifiable requirements of the market environment and can involve the removal or introduction of certain features, functions and services. Insofar as Provider provides features and services which are not essential to the core function of the software, these features and services can be terminated. This shall not give Customer the right to reduce the agreed fee or claim damages nor shall Customer be entitled to terminate the contract on such grounds. 

 

§ 2   Contract conclusion, contract changes

(1) As a rule, the contract is concluded via an Internet portal where Customer can select the individual software features and modules.

The services and fees are described on the portal and can be selected by Customer in its discretion. Customer then books the selected services by mouse click to complete contract conclusion. 

(2) During the contract term, Customer can use the main user’s / Admin account to change the selected features and modules in its user account. Further users can only make changes to the extent defined by the main user / Admin. The changes may involve an adjustment of the agreed fee. The new fee will be shown to Customer before Customer confirms the adjustment/change of the contract by mouse click. 

(3) Customer is aware that contract changes can be made via the user account. Therefore, Customer shall only make the user account access data available to persons who are authorised to conclude / change the contract.

(4) Customer will receive an order confirmation by email for every booking or contract change. Customer shall check the confirmation for accuracy and completeness.

In addition to or instead of contracting via a website, the contract may also be concluded in response to individual offers in writing or in text form.

 

§ 3 Provision of the software / storage space and term of storage of application data

(1) From the agreed point in time, Provider shall make the respective current version of the software  available to Customer on a central computer or on several computers (referred to hereinafter as “server”) for use according to the provisions set out hereinafter.

Provider uses the services of third parties for the provision of the aforesaid computers. The requirements of legally compliant implementation of data transfers, if any, are laid down in the agreement for data processing on Customer’s behalf (commissioned data processing). Provider may adjust the server configuration to the state of the art and offer different service categories according to the respective current fees and accounting models. 

(2) Provider warrants that the contractual service 

• is suitable for processing e-commerce sales transactions,
• is free from defects during the entire contract term,
  
• is free from malware which might render the contractual service unfit for the contractually agreed use.

(3) Provider provides Customer with the access data which are the user name and the password. Customer is obliged to replace all user names and user passwords without undue delay (“unverzüglich”) by new names and passwords that are known to no-one else but Customer. Additional security measures can be agreed separately.

(4) Provider ensures that the software provided complies with proven state-of-the-art standards. 

If and to the extent that the provision of a new or adjusted version involves an essential change of the contractually agreed functionalities and/or restrictions of the usability of the previously generated data, Provider shall notify Customer thereof by notice in text form (“Textform” according to § 126b BGB – German Civil Code) before the intended effective date of the change. Customer has the possibility to object to the change. In this case, the procedure described in § 31 of these GTC shall apply. 

(5) From the time agreed for ready-for-service provision, Provider shall make the agreed amount of storage space available to Customer for the data generated by Customer through the use of the contractual service  and/or required for the use of the contractual service ” (referred to hereinafter as “application data”). Further details regarding the scope of the services to be provided in terms of storage space and the storage of application data will be specified in the service order / booking documentation and/or in separate performance specifications, if required. 

(6) Backups of  the application data shall be stored on the server once a calendar day. 

During the contract term, Provider shall store the application data generated and created by Customer for no longer than the applicable statutory retention period. Unless otherwise agreed, the data will be deleted after contract termination. The archiving of data and the preparation of compliant auditable change logs may be subject to charge.

Provider warrants that all applicable retention periods under commercial law and tax law will be observed within the scope of existing certifications. In all other respects, the responsibility shall lie with Customer itself. Customer itself shall at any time ensure additional independent data backup.

(7) The point of delivery of the software and the application data shall be the router output of Provider’s computing centre. 

(8) As to the system prerequisites required on the part of Customer, a common state-of-the-art PC with a current Internet browser (only Google Chrome, Safari, Edge and Firefox) and common software equipment is usually sufficient. In the case of changes to the technical system of Provider, the procedure under § 31 of these GTC shall apply accordingly. Provider shall not be responsible or liable for the condition of the hardware and software required on the part of Customer nor for the telecommunication connection between Customer and Provider to the point of delivery. 

(9) After contract termination, all generated data shall be retained for one month. Any further storage shall take place as agreed in the contract. Customer shall be given the possibility to save the data upon contract termination. Provider may render support or assistance in the data saving for a fee. Access to the data will no longer be possible after contract termination. If and to the extent that data are stored in the long term, any access to the data by Customer after contract termination will be subject to charge. Ongoing data storage and backup shall be the responsibility of Customer.

 

§ 4  Access software

(1) Provider will not provide Customer with access software. The respective current versions of the following Internet browsers are suitable as access software: Google Chrome, Safari, Edge and Firefox. Customer alone is responsible for procuring and installing the access software.

(2) If Provider nonetheless provides access software, this shall not be deemed an obligation of Provider; Provider may in its discretion discontinue the provision and recommend the use of an Internet browser instead. 

 

§ 5 Consultancy and service provision

In addition to the provision of the software, Provider renders  additional services. The content and further specifications of the services are laid down in Part B of these GTC.

 

§ 6 Availability, response and recovery times, access to application data

(1) Provider warrants and ensures the availability of the software and the application data at the point of delivery as agreed. Availability is meant to be the technical usability of the software and the application data at the point of delivery for use by Customer by means of the access software. Unless otherwise agreed between the parties or stated in the performance specifications, Provider warrants a 99.4% availability during the entire year. 

(2) Provider shall remedy any defects reported to it or any failure or partial failure within a reasonable period of time. 

The response and recovery times also apply to additionally agreed services.

Any occurring defects shall be consensually classified by the parties as operation-preventing or operation-restraining or other defects. If the parties are unable to reach consensus, Provider shall decide on the classification, giving due consideration to Customer’s interests. The following response and recovery times shall apply depending on the classification of the defect:

 

Operation-preventing defect:

Response: 24 hours / Recovery: 48 hours

An operation-preventing defect exists if the use of the software is impossible or substantially restricted, e.g. due to malfunctions, wrong work results or response times (and the defect cannot be circumvented by reasonable organisational workaround).

 

Operation-restraining defect:

Response: 48 hours / Recovery: 5 business days

An operation-restraining defect exists if, e.g. due to malfunctions, wrong work results or response times, the use of the software is not impossible or substantially restricted but nonetheless more than only insignificantly restricted and the defect cannot be circumvented by reasonable organisational or other economically reasonable workaround. 

 

Other defects:

Response: 3 business days / Recovery: 12 business days

Other defects are defects which do not directly and/or significantly/substantially impair the use of the software , such as in the case of uncomfortable basic settings or the lack of “nice-to-have” features. 

(3) Definitions

Business days shall be the days from Monday to Friday except for public holidays at the place of Provider’s headquarters.

Response means that Provider confirms to Customer that the failure report was received and the troubleshooting process is being initiated.

Recovery means that the defect has been eliminated or remedied.

Response time and recovery time shall be computed from the time of receipt of the failure report. 

 

(4) Defects of the contractual service:

A defect shall be deemed to exist if (a) the software”, despite proper use according to the contract, does not provide the functionalities defined in the software product/performance specifications or (b) the software is not suitable for the purpose of use intended under the contract or (c )the software is not suitable for common use and does not show the quality which is usually available with applications of the same kind and which Customer is reasonably allowed to expect from that kind of software.

In particular, the following shall not be deemed a defect in terms hereof (the following list is not conclusive):

• any circumstance under a) – c) above only has an insignificant impact on the use of the application or 
• the failure was caused by improper handling of the software as described in § 10 subs. 1.

(5) Customer is aware that Provider procures parts of the services it offers from third parties and provides them to Customer with the help of these third parties. For such third-party service providers, reference is made to the Annex regarding the agreement for data processing on Customer’s behalf (commissioned data processing). If, during the ordering process, such services are identified and marked as services which Provider renders as a reseller in the aforesaid sense, the recovery period shall be extended by 2 additional business days. 

(6) Provider shall determine the kind and mode of defect remedy in its reasonably exercised discretion. If Provider offers Customer patches, bug fixes, new versions or software parts etc. to prevent or remedy the defect, Customer shall be obliged to adopt them (if and as soon as this is reasonable for  Customer).

Provider may also implement defect remedy by providing Customer with instructions how to proceed. Customer shall comply with these instructions unless this is unreasonable for Customer.

Provider shall be deemed to have fulfilled its defect remedy obligation if and as soon as the defect as defined in subs. (2) does no longer exist. 

(7) If Provider cannot remedy a defect within the contractually agreed period, Provider shall, at its own expense and to the extent this is economically reasonable for Provider, make a provisional workaround solution available to Customer. The provision of the workaround solution shall be without prejudice to Provider’s obligation to provide permanent defect remedy.

(8) Customer already upon contract conclusion authorises Provider to access the application data for verifying error reports and correcting errors/debugging. Provider shall only access the data to the extent this is necessary for error verification and correction/debugging. § 13 and § 24 of these GTC are thus extended by the present clause. 

 

§ 7 Non-fulfilment of principal contractual duties (“Hauptleistungspflichten”)

(1) If Provider fails to perfectly fulfil the obligations set out in § 3 and § 6, the following provisions shall apply.

(2) If Provider is in default with the ready-for-service provision of the contractual service, Provider shall be liable according to § 27. Customer shall be entitled to terminate the contract and/or withdraw from the contract if Provider fails to properly perform within a two-week grace period granted by Customer, i.e. if Provider fails to provide full functionality of the contractual service as contractually agreed within the said grace period. 

(3) If, after ready-for-service provision of the contractual service, Provider fails to comply with the agreed obligations or parts thereof, the usage flat rate, if any, according to § 12 shall be reduced pro rata temporis, i.e. for the time during which the contractual service and/or the application data and/or the storage space were not available for Customer to the contractually agreed extent. Ongoing usage fees according to § 12 shall only accrue for transactions which were actually carried out by means of the contractual service despite the restriction or non-availability of the agreed services. If the non-fulfilment of obligations is attributable to Provider (“zu vertreten haben”), Customer shall in addition be entitled to claim damages according to § 27. 

(4) If the usability of the contractual service cannot be restored within the agreed period after Provider has become aware of the defect, Customer shall be entitled to terminate the contract for cause without observing a notice period (extraordinary termination), regardless of the reason for the non-fulfilment; Customer shall however have no right of termination if the non-fulfilment is exclusively due to force majeure.

(5) Provider shall bear the burden to prove that the reason for the late provision or non-availability of the services is not attributable to Provider (“nicht zu vertreten haben”). If Customer failed to report the non-availability of the services to Provider and Provider denies knowledge of the non-availability, Customer shall bear the burden to prove that Provider gained knowledge of the non-availability otherwise.

 

§ 8 Additional services of Provider

(1) Provider, at Customer’s request to be filed in text form (“Textform” according to § 126b BGB – German Civil Code), shall provide Customer with a copy of the application data for digital retrieval/download. The provision of the data shall be subject to usual remuneration within the meaning of § 612 subs. 2 and § 632 subs. 2 BGB (German Civil Code). Such remuneration shall be due and payable prior to the provision of the data.  

(2) Provider, together with the provision of the software, makes an integrated digital user help function available to Customer. Customer accepts this user help function as a user documentation. 

Any updating of the software shall involve updating of the user help function, too.

Customer is entitled to store, print and reproduce in reasonable numbers the provided documentation for the purposes of this contract, while maintaining any existing proprietary rights notices. In all other respects, the restrictions of the use of the software  set out in § 10 shall apply to the documentation accordingly.  

(3) The parties may at any time agree in writing (by e-mail is effective) on the provision of additional services by Provider.. Such additional services will be rendered at Provider’s general rates valid at the time of commissioning, subject to proof of the time and material expended, unless a different fee has been agreed. 

(4) Provider shall be entitled after contract termination to release any domains registered by Customer and hosted by Provider if Customer, after receipt of a request in text form (“Textform” according to § 126b BGB – German Civil Code), fails to claim the domain within a period of one month and/or fails to initiate the domain transfer immediately upon contract termination. 

(5) Customer, already when commissioning additional services, shall authorise Provider to access the application data for performing the additional services. Provider shall only access the data to the extent this is necessary for the performance of the additional services. § 13 and § 24 of these GTC are thus extended by the present clause.

 

§ 9 Support services, classification of error reports

(1) Support services of Provider are error correction/debugging according to § 6 of these GTC and other services within the meaning of § 8 of these GTC. Error correction/debugging shall be made at no expense to Customer. Other services will be charged separately according to § 8 and Part B of these GTC.

(2) The provider decides which support channels to make available. The provider has the right to specify the support channels according to the purpose and service. Provider can render support services by phone. If and to the extent these services are not part of an error correction/debugging process for which Provider is responsible, they will be charged separately according to the respective current price list or other price information provided to Customer.

(3) The parties are aware that it is not always possible in practice to distinguish on the spot between general user support, single occurrence error and software error/bug. Customer therefore accepts that Provider carries out error prioritisation based on the Customer reports and feedback. Based on the Customer reports and feedback, Provider ascertains how wide the error/problem is spread and determines the form in which it occurs.  The provider decides at its own discretion which tools to use for this analysis.

 

§ 10 Rights of use and use of the access software and application

Rights of Provider if the rights of use are exceeded:

(1) Right to use the contractual service

(a) Customer is granted a simple (non-exclusive, non-sublicensable and non-transferable) right limited to the term of this contract to use the contractual service according to the provisions set out hereinafter.

(b) Customer uses the access software to make use of the application on the server or in the cloud. The application shall not be left to Customer for use as its own. Customer may only use the application for its own business activities. 

(c) Customer is not entitled to make changes to the software on its own. This shall not apply to changes which are necessary for error correction if Provider is in default with error correction or refuses to carry out error correction or is unable to provide error correction because Provider is subject to insolvency proceedings. 

(d) If Provider provides new versions, updates, upgrades or other new supplies for the application during the contract term, the foregoing rights shall apply to them, too. 

(e) Customer shall not be entitled to any rights which are not explicitly granted to Customer under the foregoing provisions. In particular, Customer is not entitled to use, or cause third parties to use, the contractual service beyond the agreed extent of use. In particular, Customer is not entitled to copy, reproduce or sell the contractual service or leave it to others for use for a limited period, in particular Customer must not lend it or rent it out to others. 

 

(2) Customer’s obligation to ensure secure use

(a) Customer shall take any precautionary measures required to prevent the unauthorised use of “the contractual service.

(b) If Customer authorises its own service providers (e.g. consultants, agencies) to access the contractual service, Customer shall carefully supervise their activities and shall be liable to Provider for their acts and the transactions initiated by them (bookings, contract termination, contract changes etc.).

(c) Customer is liable to ensure that the contractual service is not used for racist, discriminatory or extremist purposes or purposes harmful to young people or other purposes that are contrary to the law or regulatory or administrative regulations or requirements and Customer shall also ensure that no such data including but not limited to application data are generated and/or stored on the server.

 

(3) Customer’s breach of the provisions under the foregoing subs. (1) and (2)

(a) If Customer is in breach of the provisions under subs. (1) or (2) for reasons attributable to Customer (“zu vertreten haben”), Provider shall be entitled, after one prior warning has been issued to Customer in text form (“Textform” according to § 126b BGB – German Civil Code), to block Customer’s access to the contractual service  or the application data if the blocking demonstrably helps to suppress the breach. 

(b) If Customer is in breach of subs. (2) c) above, Provider shall be entitled to delete the relevant data and/or application data. If the breach is committed by a user, Customer shall disclose to Provider without undue delay (“unverzüglich”) upon Provider’s request any and all information required for the assertion of claims against the user, including but not limited to the user’s name and address.

If Customer, despite a written warning from Provider (by e-mail is effective), continues breaching or repeatedly breaches the provisions under subs. (1) or (2) and the breach is attributable to Customer (“zu vertreten haben”), Provider shall be entitled to terminate the contract for cause without observing a notice period (extraordinary termination). 

In cases where there is reliable objective indication confirming the breach which would constitute a criminal offence, Provider shall be entitled to block Customer’s access and data without prior warning. 

(c) In every single case where Customer intentionally or negligently enables the use of the contractual service by unauthorised third parties, Customer shall be liable to pay an immediately due contractual penalty in the amount of 50% of the aggregate of Customer’s invoices for the last 12 months before the breach. In addition, Provider reserves the right to claim damages in which case the contractual penalty shall be set off against the claim for damages.

(d) If the breach is attributable to Customer (“zu vertreten haben”), Provider shall be entitled to claim damages under § 27 of these GTC.

(4) Customer’s rights in the generated databases and database works

If and to the extent that during the term of this contract, in particular on the occasion of the compilation of application data, a database or databases or a database work or database works is/are generated on the server of Provider through Customer’s activities permitted under this contract, Customer shall be the owner of all rights in those databases or database works. Customer shall remain the owner of the databases or database works even after contract termination. Provider shall be entitled to delete the databases or archive them in accordance with the contractual agreement after Customer has been given the possibility to save the data and has received a message from Provider in text form (“Textform” according to § 126b BGB – German Civil Code) requesting Customer to download the data for backup purposes within a period of three weeks.

 

§ 11 Liability for third-party rights

(1) Provider shall notify Customer without undue delay (“unverzüglich”) of any existing third-party rights and any related impact on the provision of the agreed services and Provider shall grant Customer full access to the application data as convenient from time to time.

(2) Customer shall not be liable to pay compensation to Provider if and to the extent that Customer’s use of the contractual service or other services is impaired by third-party rights.

(3) Any refusal for legal reasons according to subs. 1 to make the software and/or the application data available for use shall be deemed to constitute non-availability within the meaning of these GTC.

If and to the extent that Provider does not own or no longer owns the rights required to properly fulfil the contract, including but not limited to the rights necessary to use the software, such that the software cannot be lawfully used as agreed in the contract, the provisions of § 11 subs. 3 and 5 shall apply accordingly.

(4) Provider shall indemnify Customer, and hold Customer harmless, upon first request from any and all third-party claims resulting from Provider’s inability due to the third-party rights to ensure unimpaired provision of the agreed services. The parties shall mutually notify each other in writing without undue delay (“unverzüglich”) if third-party claims are asserted against them.

Provider may in its discretion take over the judicial and extrajudicial defence against any asserted third-party claims in consultation with Customer and Provider shall notify Customer thereof in writing.

Customer shall not make any declarations to the third party without prior consultation with Provider. 

(5) If third-party rights have actually been infringed, the following shall apply unless the infringement is not attributable to Provider (“nicht zu vertreten haben”): 

Provider can, in its discretion and at its own expense, either provide Customer with the possibility to use the affected material or modify or replace the infringing material, content or software with no or reasonably tolerable consequences for Customer in such a way that the third-party rights are no longer infringed.

In the case of an unjustified assertion of third-party rights, Customer shall assign to Provider all recourse claims to which Customer may be entitled against the third party. 

(6) In addition, Customer shall be entitled to claim damages under § 27 of these GTC.

In the case of an unjustified assertion of third-party rights, Customer shall assign to Provider all recourse claims to which Customer may be entitled against the third party.

(7) Provider shall not be liable for an infringement of third-party rights by Customer if and to the extent that the infringement results from an exceedance of the rights of use granted under this contract. In this case, Customer shall indemnify Provider, and hold Provider harmless, from any and all third-party claims upon first request. 

 

§ 12 Compensation

(1) The fees payable for the contract services are stated in the respective current price list of Provider. Additional services, if agreed, shall be charged separately according to the agreed fee, a current published price list or the usual fee. 

The fees due shall be determined on the basis of the information provided upon contract conclusion and/or on the basis of specific service usage by Customer. An overview of the costs and calculation basis is shown to the user upon contract conclusion or contract adjustment.

(2) Costs which are to be invoiced according to the applicable pricing model shall be due and payable upon the provision of contractual service for use.

Costs to be charged according to usage and turnover shall be invoiced immediately after the end of the billing period with notification of the scope of use.  Provider may also offer prepayment options. 

All invoiced costs are due for payment within 7 days of receipt (“Zugang”) of the invoice.

(3) Any changes in prices are subject to § 31 of the GTC.

(4) Any other services shall be rendered by Provider on a time & material basis at the valid list prices or the usual fee. 

(5) All amounts shall be paid plus value-added tax at the statutory rate valid from time to time. 

 

§ 13 Obligations and non-enforceable duties (“Obliegenheiten”) of Customer

(1) Customer shall fulfil all obligations and non-enforceable duties (“Obliegenheiten”) which are necessary for contract performance. Customer shall in particular 

1. keep the user and access authorisations assigned to Customer and/or the users as well as any agreed identification and authentication codes secret, protect them against third-party access and not disclose them to unauthorised users. These data must be protected by common appropriate measures. Customer shall notify Provider without undue delay (“unverzüglich”) if any suspicion should arise that the access data and/or passwords or codes might have become known to unauthorised persons;
2. create the agreed access conditions;
3. comply with the restrictions/obligations relating to the rights of use according to § 10, in particular Customer
4. shall not retrieve, or cause third parties to retrieve, information or data or interfere, or cause third parties to interfere, with programs operated by Provider without appropriate authorisation or undertake unauthorised hacking or intrusion into data networks of Provider or aid any such intrusion;
5. shall not abuse the possibility to exchange electronic messages for the purposes of the contractual relationship for               disseminating unsolicited messages and information to third parties for advertising purposes;
6. shall indemnify Provider, and hold Provider harmless, from third-party claims which are based on the unlawful use of the contractual service by Customer or which arise from data protection disputes or copyright disputes or other legal disputes caused by Customer and which are related to the use of the contractual service;
7. shall commit the authorised users to also comply with those provisions of this contract which are applicable to them; 
8. shall design its web pages and the use of the system such that server overload by scripts or programs that require high computing capacity or use an above-    average amount of random-access memory is prevented;

and shall retrieve and exchange data in accordance with, and within the limits of, purposeful fair use of the system; 

4. shall ensure (e.g. when transmitting third-party texts/data to the server of Provider) that all third-party rights in the material used by Customer are respected;
5. shall obtain the required consent from the respective data subject according to § 24 in all cases where Customer, collects, processes or uses personal data by using the contractual service  and such collection, processing or use is not explicitly permitted by law;
6. shall check any data and information for viruses before they are transmitted to Provider and use appropriate state-of-the-art antivirus software;
7. shall give notice of defects of the contract services, in particular of defects of the services under § 3 to § 6 and § 9 to § 10, to Provider without undue delay (“unverzüglich”). If Customer fails to give timely notice of defects for reasons attributable to Customer (“zu vertreten haben”), this shall be considered contributory causation and/or contributory fault on the part of Customer. If Provider is unable to take remedial measures due to the missing or late notice of defect, Customer shall not be entitled to withhold or reduce the flat rate under § 12 subs. 2 of these GTC or claim compensation of the damage caused by the defect or terminate the contract for cause without observing a notice period (extraordinary termination). Customer bears the burden to prove that the failure to give notice of defect is not attributable to Customer (“nicht zu vertreten haben”). Provider shall continue to be liable for defect remedy within the agreed periods from the time when notice of the defect is given.
8. shall ensure timely payment of the fees stipulated in § 12;
9. - when transmitting data to Provider for generating application data by means of the software - shall ensure regular data backup according to the importance of the data and shall also make backup copies of its own to enable recovery of the data and information in the case of loss; 
10. shall - if and insofar as the technical possibility to do so is made available to Customer by mutual agreement - regularly save the application data stored on the server by download; this shall be without prejudice to Provider’s obligation to ensure data backup.

(2) If third parties produce sufficient prima facie evidence suggesting that certain contents or domains infringe their rights or if there is legitimate objective indication which suggests the likeliness of an infringement of the law by certain domains or contents, Provider shall be entitled to block the contents for as long as the infringement or the dispute with the third party about the infringement is pending.

Provider shall notify Customer thereof by email and grant Customer the opportunity to comment on the case. 

Part B - Services

If and to the extent that the foregoing Part A does not regulate the agreed services to be rendered by Provider, the following provisions of Part B shall apply. The provisions governing the use of the software shall remain unaffected thereby.

 

§ 14 Subject of service

Provider shall provide services to Customer within the agreed scope. Provider shall not be liable to warrant or bring about a particular result beyond the pure consultancy services,  unless a result or success has been expressly agreed.

The content and scope of the services shall be specified in an offer which has been accepted or in any other agreement established between the parties by another documented communication means.

The response and recovery times agreed in these GTC for defects also apply to the agreed services.

 

§ 15 Services to be rendered by Provider

(1) Provider shall provide the agreed services to support Customer in the agreed project and/or within the agreed scope.

Provider shall provide the Services during usual office hours. If Customer wants the Services to be provided also outside the usual office hours, this may be agreed upon against additional compensation. 

Provider shall provide the Services in a professional and diligent manner, applying generally recognised state-of-the-art standards of service provision and considering the agreed requirements and specifications. 

(2) If required and at Customer’s request, Provider shall closely cooperate with other service providers and suppliers of Customer. If Provider thereby incurs more than insignificant additional expense, Provider shall be entitled to separately charge this expense on the basis of the hourly and/or daily rates agreed upon contract conclusion. Provider shall notify Customer in writing or text form (“Textform” according to § 126b BGB - German Civil Code) without undue delay (“unverzüglich”) of any intended charging of additional expense to Customer.

(3) Provider shall notify Customer in writing or text form (“Textform” according to § 126b BGB - German Civil Code) without undue delay (“unverzüglich”) of any obstacles or impairments which may affect service provision or if Provider has reason to believe that such obstacles or impairments may occur. 

(4) Any persons whom Provider engages in the performance of the Services shall not be deemed to enter into an employment relationship with Customer and they are not subject to Customer’s instructions. The parties shall take appropriate organisational measures to ensure that the persons whom Provider engages in the performance of the Services shall be exclusively subject to Provider’s instructions and disciplinary authority. This shall in particular apply if the persons engaged by Provider render the Services on Customer’s premises. The persons engaged in the service provision shall not be integrated into Customer’s organisational structures. 

(5) Provider is entitled to engage subcontractors for service provision. Customer shall only be informed of the subcontracting if more than 25% of the services are rendered by subcontractors. 

 

§ 16 Customer’s assistance and contributions

(1) Project responsibility and success responsibility remain with Customer. Regardless thereof, Provider shall be responsible for the proper performance of the Services to be rendered under this contract.

(2) If required, Customer shall make technical facilities, equipment and appropriate rooms available for on-site service provision. In addition, Customer shall proactively provide Provider with all documents and information in its possession which are necessary for service provision, in complete form and in due time, and shall further ensure that a sufficient number of duly qualified contact persons on the part of Customer are available to Provider. Unless otherwise agreed, Provider shall not be obliged to check the documents and information provided by Customer for accuracy and completeness. 

Further assistance and contributions by Customer may be agreed. 

(3) The assistance and contributions by Customer shall be deemed to constitute real enforceable contractual obligations rather than mere non-enforceable duties (“Obliegenheiten”). If Customer fails to provide, or improperly provides, the necessary assistance or contributions, which has an impact on the Services to be rendered by Provider, Provider may, without prejudice to any further rights, claim appropriate reasonable adjustment of the contractual arrangements (such as an adjustment of the time schedule or compensation). If Provider incurs additional expense as a result of the improper assistance or contribution by Customer, Provider shall be entitled to separately invoice Customer for the additional expense on the basis of the agreed hourly and daily rates. 

 

§ 16a Access data/account management

The customer concludes all agreements and contracts with digital services, platforms and marketplaces himself. The accounts are managed in his name. The Customer shall provide the Provider with the access data to these services to the extent necessary for the performance of the contract. Only with sufficient access rights can services that are usually referred to as managed services be provided. The Provider's actions are performed in the name and for the account of the Client.

 

The costs for the services of third parties used shall be borne by the Client.

The Client is aware that the agreed Marketing Optimisation Services are an ongoing process and that it may take several days and weeks for changes to become visible and effective after all proposed or made changes have been implemented.

The Client is aware that the Provider manages accounts with third parties on behalf of the Client when a power of attorney is granted and access data is provided. Actions that go beyond administration will only take place after documented consent and with the agreement of the customer.

After the end of the contract, the accounts used by the Provider on behalf of the Customer shall be handed over in the condition and configuration as they exist at the time of the end of the contract. The customer assumes sole responsibility for the accounts from the end of the contract and is obliged to change the access data himself/herself without delay.

 

§ 17 Place of service provision

Provider may choose the place of service provision in its sole discretion. If the services are to be rendered at a particular place (e.g. on Customer’s premises), this must be specifically agreed between the parties and Provider shall be reimbursed for the expenses incurred thereby. 

§ 18 Change requests für services

(1) Customer shall be entitled to submit written requests (text form (an e-mail is adequate),  for service changes. Provider shall not unreasonably refuse to implement the requested change.

Provider shall review Customer’s change request within a narrow time frame. Provider shall be entitled to charge separate compensation for the review of the change request on the basis of the agreed hourly and daily rates. Provider shall submit to Customer an offer for the review of the change request, specifying the time frame required for the review. 

(2) If a comprehensive review of Customer’s change request which would be subject to separate compensation is unnecessary, Provider shall submit to Customer within 5 business days a proposal for the implementation of the requested change, which shall include all information required by Customer for decision-making and which in particular states the time required for the implementation. If Provider should be unable in any individual case to submit an implementation proposal to Customer within the aforesaid period, Provider shall notify Customer thereof, specifying a binding date when the implementation proposal will be submitted.

Service changes must be documented by an appropriate contract adjustment at least in text form. As long as the parties have not agreed on a change, Provider shall continue to render the Services according to the original agreement.

 

§ 19 Cooperation

(1) Proper service provision requires close cooperation between the parties. The parties shall therefore mutually inform each other of all circumstances under their control which may affect the service provision. 

(2) In the case of projects requiring more than three days of service provision, each of the parties shall designate a person in charge (project manager) who is available to the other party for all issues related to service provision and who is authorised to make binding declarations on behalf of the respective party and accept declarations from the other party. 

(3) If a contact person should not be authorised to make or accept declarations in any individual case, such person shall without undue delay (“unverzüglich”) notify the duly authorised persons and/or bodies of his/her party of the facts and bring about a decision and/or designate another responsible person. 

 

§ 20 Compensation and terms of payment

(1) Unless otherwise agreed in the contract document, Customer shall pay for the service provision on a time and material basis. Provider shall specify to the Customer the billing model or its hourly and/or daily rates as a basis for charging additional services, if any.

Reasonable travel cost and other expenses shall be reimbursed separately in the amount actually incurred. 

(2) All prices are exclusive of the applicable statutory value-added tax which must be stated separately. 

Unless otherwise specified in the offer/service order, invoices shall be issued on time and material basis and on a monthly basis for the services provided in the respective preceding accounting period. 

 

§ 21 Improper performance (“Leistungsstörung”) of services

(1) Customer shall notify Provider in writing or text form (“Textform” according to § 126b BGB) without undue delay (“unverzüglich”) if and as soon as Customer realises that a service of Provider has not been rendered in accordance with the contract. In this case, Customer must specify the non-compliance with the contractual agreement in as much detail as possible.

(2) Insofar as Customer has duly fulfilled its information duty according to subs. (1) above, Provider shall be entitled and obliged to subsequently perform the service in question in accordance with the contract within a reasonable period and at no additional expense to Customer, provided that such  subsequent service provision is possible and expedient (subsequent performance - “Nacherfüllung”). Provider shall not be obliged to provide subsequent performance if the non-compliant service provision is not attributable to Provider (“nicht zu vertreten haben”); the presumption according to § 280 subs. 1 sentence 2 BGB (German Civil Code) shall apply (mutatis mutandis).

(3) If the subsequent performance with respect to a previous  improper service provision, which is attributable to Provider (“zu vertreten haben”), is impossible or unsuccessful in large or essential parts for reasons attributable to Provider despite a reasonable grace period granted by Customer, Customer shall be entitled to terminate the contract for cause with immediate effect (“fristlose Kündigung aus wichtigem Grund”). In this case, Provider shall be entitled to compensation for the services provided until the effective date of the termination. 

The termination of a contract for services shall be without prejudice to any contracts concluded for software or plug-in development and software provision (SaaS).

(4) Any further claims for improper quality of the provided services are excluded. This exclusion shall not apply in the case of a) intentional misconduct, b) grossly negligent misconduct, c) breach of essential contractual duties the fulfilment of which is indispensable for the proper performance of the contract and on the compliance with which Customer was reasonably allowed to rely and d) in the case of an injury to the life or limb or health. 

(5) Claims for improper quality of the provided services shall become time-barred after one year of the commencement of the limitation period prescribed by law. The aforesaid limitation period shall not apply in cases where the improper quality of the provided services is due to intentional or grossly negligent misconduct of Provider, its legal representatives, vicarious agents or other persons engaged by Provider in the fulfilment of its obligations (“Erfüllungsgehilfen”), in the case of an injury to the life or limb or health or in the case of liability under the Produkthaftungsgesetz (German Product Liability  Act). In these cases, the statutory limitation period shall apply. 

(6) If the improper quality of service provision consists in an infringement of third-party proprietary rights, § 11 of these GTC shall apply. 

 

§ 21 a Approvals/Results

If the Provider sends data and concepts to the Customer for approval, the Customer is obliged to check these immediately. The customer shall be responsible for any delays resulting from a failure to release the data. Similarly, the customer is obliged to provide all information and data required for the provision of the services upon request. The customer is aware that the booked services can only be provided if he cooperates.

§ 22 Intellectual property

(1) Provider remains the owner of any and all material that is protected or protectable by industrial property rights or similar positions of any kind (e.g. patent rights, trademark rights, utility patents and design rights, copyrights), registered or not, (“intellectual property rights”), (referred to hereinafter as “material”) and to which Provider is entitled at the time of contract conclusion or which is developed by Provider (or a third party acting on Provider’s behalf) after the conclusion of this contract (“Provider material”). This shall apply accordingly to any adaptations, modifications and further developments of the Provider material.

With the delivery of the Provider material, Provider grants Customer a non-exclusive, perpetual, territorially unlimited, non-transferable right to use the Provider material which was delivered to Customer in the context of the contract, provided this corresponds to the purpose of the contract.

(2) Customer remains the owner of any and all material to which Customer is entitled at the time of contract conclusion or which is developed by Customer (or a third party acting on Customer’s behalf) after the conclusion of this contract (“Customer material”). This shall apply accordingly to any adaptations, modifications and further developments of the Customer material. If the said adaptations, modifications or further developments are implemented by Provider, they shall be intended for exclusive use and exploitation by Customer. Customer grants Provider a non-exclusive, non-transferable right, limited to the term and purpose of contract performance, to use the Customer material. 

(3) Upon full payment of the agreed compensation, Provider shall grant Customer a non-exclusive, perpetual, non-transferable right, unlimited in terms of scope, purpose and territory, to use the material generated for Customer under this contract and marked accordingly.

(4) A legal review of the information provided by the customer and the resulting services and results, in particular with regard to competition, trademark, copyright and personal rights, is not the responsibility of the Provider.  In the event that a claim is made against the Provider due to alleged or actual infringements of rights and/or infringements of third party rights due to the selection of e.g. keywords and/or due to content, the Customer shall indemnify the Provider against all resulting third party claims and undertakes to reimburse all possible costs incurred by the Provider as a result of the third party claim. Reimbursable costs also include the costs of reasonable legal prosecution and legal defence that the provider should incur.

 

§ 23 Independence of the services

The services shall be provided independently of any contracts for software services. Insofar as no periods and dates of notice are agreed, the provisions on periods and dates of notice from these GTC shall apply. 

 

Part C - General provisions

The following general provisions shall apply to both software services and consultancy services.

 

§ 24 Data security, data protection

(1) The parties shall comply with the applicable data protection regulations, in particular with those in effect in Germany, and they shall also commit their employees to whom they assign tasks relating to the contract and its performance to compliance with these data protection regulations insofar as they are not subject to an appropriate general compliance obligation anyway.  

(2) Customer warrants that any collection, processing or use of personal data carried out by Customer is authorised by the applicable regulations – in particular by the applicable data protection regulations – and Customer shall indemnify Provider from all third-party claims in any case of breach. If and to the extent that the data to be processed are personal data, the processing constitutes data processing on Customer’s behalf (commissioned data processing) and Provider shall comply with the statutory requirements of commissioned data processing and the instructions given by Customer (e.g. regarding compliance with the existing obligations to delete or block data). The instructions must be provided in writing or text form in due time. 

(3) Provider shall implement technical and organisational security precautions and measures according to the applicable statutory regulations. In particular, Provider shall protect the services and systems under its control and the application data which Customer stores on the server or the data concerning Customer which are stored on the server and other data, if any, against unauthorised access, storage, alteration or other unauthorised interference or attacks - regardless of whether they may be caused by technical measures, viruses or other malware or data or by physical access - by Provider’s employees or third parties and regardless of the way of interference. For such purpose, Provider shall implement common appropriate state-of-the-art measures including but not limited to antivirus protection and protection against similar malware as well as other measures to protect Provider’s facilities including anti-burglary protection.

(4) Provider shall only collect and use customer-related data to the extent this is necessary for the performance of this contract. In addition, Provider shall be entitled to use the data for general statistical analyses after anonymisation. However, Provider shall in no case be able to identify certain individuals or customers. Customer consents to the aforesaid scope of data collection and data use. 

(5) The obligations under subs. 1 to 3 shall apply as long as any application data are within Provider’s sphere of control, even after contract termination.

(6) Provider shall be entitled to block systems if they act or react contrary to their regular operating behaviour and thereby impair the security, confidentiality, availability, integrity and resilience of the systems, networks, software, programs, applications, scripts, apps, files and data of the Provider , customers or third parties (e.g. Customer’s own customers). This shall also apply if there is legitimate objective indication which makes Provider suspect such an impairment. For the avoidance of doubt, the parties are agreed that this shall also apply to so-called Denial of Service Attacks (referred to hereinafter as “DoS attacks”) which are initiated by Customer or for which Customer’s account, access or server is used by third parties.

 

§ 25 Confidentiality

(1) The parties shall maintain secrecy of all confidential information to which they become privy in the context of their contractual relationship and they shall only disclose such information to third parties with the prior written consent of the respective other party, regardless of the specific purpose of the disclosure. Confidential information shall include any information which is explicitly designated as confidential by the providing party as well as any information which must be considered as confidential by the circumstances of their disclosure. Confidential information within the meaning hereof shall include, without limitation, application data if Provider becomes privy to them.

Affiliates within the meaning of § 15 et seq. AktG (German Stock Corporation Act) shall not be considered as third parties as defined in this agreement, provided that the affiliates and their employees are subject to an obligation of secrecy which is equivalent to the present agreement. 

(2) The obligations under subs. 1 shall not apply to information or parts thereof if the receiving party demonstrates that the information 

• was known to it or was generally available before the date of receipt;
• was known to the public or was generally available before the date of receipt;
• became known to the public or generally available after the date of receipt with no contribution or fault of the receiving  party.

(3) Public statements of the parties regarding their cooperation shall be subject to prior mutual agreement. 

(4) The obligations under subs. 2 shall remain effective even beyond contract termination for an unlimited period of time, i.e. for as long as there is no proof of any of the exceptional conditions set out in subs. 2 being fulfilled.

 

§ 26 Insolvency or threatening insolvency of either party

(1) The parties are obliged to mutually notify each other without undue delay (“unverzüglich”) if 

1. either of them has filed a petition in insolvency or intends to do so within the 14 calendar days to come,
   
2. a third party has filed a petition in insolvency against the party,
3. a party is compelled to stop payments due to payment difficulties,
4. measures were taken against a party to satisfy third-party creditor claims in coincidence with the occurrence of payment difficulties, or
   
5. a party, in coincidence with the occurrence of payment difficulties, has agreed to enter into arrangements for the satisfaction of third-party creditor claims.

(2) If any of the circumstances under subs. 1 no. 3 to 5 should occur, the respective other party shall be entitled to terminate the contract for cause without observing a notice period (extraordinary termination).

 

§ 27 Liability, limitation of liability and contractual penalty

(1) The parties shall be fully liable to each other for any damage caused by intentional and grossly negligent conduct of the party or its legal representatives or vicarious agents or other persons they engage in the fulfilment of their obligations (“Erfüllungsgehilfen”).

(2) In the case of slight negligence (“leichte Fahrlässigkeit”), the parties shall be fully liable to each other for injuries to the life or limb or health. 

(3) In all other cases, the parties shall only be liable to each other if and to the extent they are in breach of an essential contractual duty (“so-called “Kardinalpflicht”). In these cases, the party’s liability shall be limited to the compensation of the typical foreseeable damage. No-fault liability of Provider for damages (§ 536a BGB – German Civil Code) for defects existing upon contract conclusion is excluded; the provisions of subs. 1 and 2 remain unaffected. 

(4) A party shall only be liable to pay contractual penalty if this is explicitly agreed in this contract. The parties need not reserve the right to claim contractual penalty. Any contractual penalty paid may be set off both as a principal claim and counterclaim. 

(5) The liability under the Produkthaftungsgesetz (German Product Liability act) remains unaffected. 

 

§ 28 Contract term, termination

(1) The contractual relationship commences upon contract conclusion. The services shall be provided from the time stated in the order confirmation or as separately agreed after order acceptance.

Unless otherwise agreed, the contract shall be deemed concluded for a period of 12 months. If the contract is concluded for a specifically agreed term or if a minimum term is agreed with Customer, the contract shall be automatically extended by the agreed term at a time but by no more than one year unless it has been terminated by either party giving one month’s notice of termination, effective as of the expiry of the specifically agreed term or minimum term.

(2) Provider shall be entitled to terminate the contract without observing a notice period if Customer is in default with the payment of the fees, or more than an insignificant partial amount of the fees, invoiced for two consecutive months or if Customer, over a period of more than two months, is in default with the payment of an amount equal to the fees payable for two months. Termination without notice (extraordinary termination) shall also be possible if the default of payment refers to claims which are not due for a certain period of time but for other services and/or quotas as well as other systems.

In the case of extraordinary termination without notice for default of payment or other breach of duty, Provider shall be entitled to claim immediate one-off payment of liquidated damages in the amount of 70 percent

1. a) of the fees falling due until the expiry of the regular contract term,
2. b) of the average monthly fees invoiced to Customer during the previous 12 months of active use by Customer in the time until the expiry of the regular contract term and/or
3. c) of the fees invoiced in advance for services and/or quotas not yet used.
   
   

Customer shall however have the right to prove that Provider incurred no damage at all or considerably less damage than the aforesaid amount. 

(3) Provider shall be entitled to terminate the contract for cause (extraordinary termination) if Customer does not use Provider’s services at all or to a minor extent only. Provider shall have the right to terminate the contract if less than 80 service orders have been generated over a period of two months. The user shall be given a once-only opportunity to reactivate the system within one month from termination or save the data against compensation before the system is deactivated. 

(4) Provider shall be entitled to terminate the contract if Customer has repeatedly breached its duties under § 10 and § 13 intentionally or negligently despite a prior warning from Provider. 

(5) Every notice of termination must at least be given in text form (“Textform” according to § 126b BGB – German Civil Code).

 

§ 29 System blocking for default in payment and breach of duty

In order to prevent termination without notice and deactivation of Customer’s system according to § 28 of these GTC, Provider may take the following preliminary measures: 

1. Provider can issue a warning to Customer that Customer’s systems will be blocked if the default of payment or other misconduct is continued. This means that access to the systems by Customer and all users established by Customer will be blocked.
2. If Customer continues the misconduct and/or fails to fulfil its payment obligations, Customer’s access to his/her systems will be blocked. The blocking does not imply contract termination. The systems will be reactivated for Customer after the payment obligations have been fulfilled or the misconduct has been stopped or reasonable prima facie evidence has been submitted to prove that the misconduct has been stopped. 

Provider may decide in its discretion and depending on the severity and scope of Customer’s misconduct whether to block Customer’s account instead of terminating the contract.

The systems will still be kept ready for use regardless of any blocking of Customer’s access. The blocking does not release Customer from its payment obligations because the systems  are permanently kept ready for use. Customer must continue to pay any fees payable for the contract term or certain periods of time. Fees payable for quotas and/or callable services must be paid, too, and the services and quotas can be used by the Customer after payment. 

 

§ 30 Obligations of the parties upon and after contract termination

Provider shall at Customer’s request make all data stored by Customer available to Customer by remote data transfer or for download. The provision of the data shall be subject to the usual remuneration within the meaning of § 612 subs.2 and § 632 subs. 2 BGB (German Civil Code). Such remuneration shall be due and payable prior to the provision of the data. 

 

§ 31 Changes to the GTC, fees and services

(1) Provider is entitled to change these General Terms and Conditions, the fees and services according to the following provisions.

(2) Provider shall be entitled to reasonably increase the prices for the services provided under the contract to make up for increases in personnel costs or other costs or for improvements resulting from the further development of the software. Provider shall notify Customer in writing or by email of the intended price increase; the price increases shall not apply for periods Customer has already paid for. If the prices are increased by more than 8% of the net price, Customer shall be entitled to object to the increase in prices. The reference value for the 8% threshold shall be the net price which was valid 12 months before the notification of the intended price increase. The reference costs shall be the costs for unchanged services under an unchanged contract. If Customer does not object to the increase in prices, the new prices shall be applicable after six weeks of receipt (“Zugang”) of the notification of the price increase.   

(3) Provider shall notify Customer of any intended change of the GTC or the performance specifications and provide Customer with a change proposal in writing or text form (“Textform” according to § 126b BGB - German Civil Code). If Customer does not object to the change proposal in writing or text form within a period of six weeks of receipt (“Zugang”) of the proposal, the proposal shall be deemed accepted. In this case, the change shall take effect six weeks after receipt (“Zugang”) of the change proposal.

(4) If Customer objects to the change of the General Terms and Conditions, fees or services, the contract shall first continue in force unchanged with the previously agreed conditions.

If Customer has objected to the proposal for contract change and Provider can give reasons for the fact that the unchanged continuation of the contract is unreasonable for Provider in technical, organisational or economic respect, Provider shall be entitled to terminate the contract by six weeks’ notice, effective as of the end of the quarter. Provider shall be under no obligation to prove the unreasonableness of contract continuation but Provider shall give plausible reasons without being compelled to disclose internal business processes.

In Provider’s notification of the intended change of the General Terms and Conditions, fees and/or services, Provider shall also instruct Customer on the consequences of Customer’s failure to object to the change.  Provider may at the same time inform Customer that - if the continuation of the contract is no longer reasonable for Provider - Provider has the right to terminate the contract. 

(5) In the case of insignificant changes to the General Terms and Conditions, fees or services that do not involve any significant disadvantage for Customer as well as in the case that the changes are made to comply with statutory requirements or court decisions, Customer shall not be entitled to object to the change, like in the case of price increases by less than 8%.

(6) In the case of changes that are related to a change of the technical infrastructure or essential programming concepts, the presumption shall apply that the continued operation of the contractual service for Customer based on a previously used old software or hardware structure is generally unreasonable for Provider in technical and economic respect. 

 

§ 32 Force majeure

The parties shall not be obliged to perform their contractual  obligations in the case and for the duration of a force majeure event. Force majeure shall be deemed to include but shall not be limited to the following circumstances:

• Fire/ explosion/ flood if not attributable to the party concerned („nicht zu vertreten haben“),
• War, mutiny, blockade, embargo,
• Labour dispute over a period of more than six weeks if not culpably triggered by the party concerned, 
• Technical Internet problems beyond the control of the party concerned; this shall not apply if and to the extent that Provider itself offers and provides the telecommunication services concerned.

The parties shall notify each other in writing or in text form without undue delay (“unverzüglich”) of the occurrence of a force majeure event. 

 

§ 33 Applicable law, final provisions, place of jurisdiction

(1) The contractual relationship is governed by German substantive law with the exception of UN Sales law. 

This contract is drafted in German and English. The English version is for convenience purposes only. In the case of discrepancies or differences in the interpretation of the German version on the one hand and the English version on the other hand, the German version shall be authoritative and exclusively binding. 

(2) Annexes, if any, shall be part of this contract in their respective current versions, i.e. in the versions signed by both parties.

(3) The rights and duties under the contract shall not be assigned to third parties without the prior documented consent of the respective other party.

(4) There are no side agreements between the parties beyond this contract and the annexes thereto. Changes and amendments to this contract and the annexes thereto must be at least made in text form (“Textform” according to § 126b BGB – German Civil Code) to be valid. This shall also apply to any change or waiver of the formal requirement. Digital signature systems and services are agreed to be effective.

(5) If any individual provisions of these GTC should be invalid, the validity of the remaining contract shall be unaffected thereby. 

(6) If unintended gaps should become apparent in the practical implementation of this contract or if a provision is found to be invalid by a final non-appealable court decision (res judicata) or by mutual agreement of the parties, in each case for non-compliance with subs. 4, the parties shall be obliged to fill the gap or replace the invalid provision by an adequate valid provision that reasonably corresponds to the intended economic purpose of the contract. 

(7) If Customer is a merchant (“Kaufmann”) within the meaning of the Handelsgesetzbuch (German Commercial Code – “HGB”) or a legal entity under public law or a special fund under public law (“öffentlich-rechtliches Sondervermögen”), Kassel shall be the place of jurisdiction. The same shall apply if there is no place of general jurisdiction (“allgemeiner Gerichtsstand”) for Customer in Germany. PlentyONE GmbH shall however also be entitled to sue Customer at Customer’s domicile. 

Version 2025.03
(Change to PlentyONE GmbH, only editorial changes compared to 2023.09)