1.1 These General Terms and Conditions (GTC) apply to all contracts between peakwork AG (hereinafter referred to as "Provider") and the Customer regarding the licensing of software and other additional services. These GTC apply only to entrepreneurs who are acting in the exercise of their commercial or independent professional activity when concluding the legal transaction, and to legal entities under public law and special funds under public law.
1.2 The Provider shall not recognise any terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions, unless it has expressly agreed to their approval in writing. Individual agreements remain unaffected by the above provisions.
1.3 These Terms and Conditions shall also apply in the case of continuous business relations to future transactions in which no express reference is made to them, provided that only the GTC were included in the previous contract.
2.1 Unless otherwise agreed, remuneration shall be calculated on a time and material basis at the Provider's prices generally applicable at the time of conclusion of the contract. Remunerations are always net prices plus legally applicable value added tax.
The provider may invoice on a monthly basis. If services are remunerated on a time and material basis, the provider shall document the nature and duration of the activities and submit this documentation with the invoice.
2.2 All invoices are to be paid in full no later than 14 calendar days after receipt.
2.3 The customer may only set off or exercise a right of retention against undisputed or legally established claims. Due to defects, the customer may retain payments only to a proportionate extent taking into account the defect and only if the defect exists beyond doubt. 4.1 applies accordingly. The customer has no right of retention if his claim for defects is time-barred.
2.4 The provider retains ownership and rights to be granted to the services until full payment of the remuneration owed, for which justified retentions of defects according to 1.3. sentence 2 are to be taken into account. Furthermore, the Provider retains ownership until all its claims arising from the business relationship with the Customer have been satisfied.
The provider is entitled to prohibit the customer from further use of the services for the duration of a delay in payment. The Provider may only assert this right for a reasonable period of time, as a rule for a maximum of 6 months. This does not constitute a withdrawal from the contract. § 449 (2) BGB remains unaffected.
If the customer or the customer's purchaser returns the services, the acceptance of the services does not constitute a withdrawal by the supplier, unless the supplier has expressly declared the withdrawal. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the supplier.
The customer may neither pledge nor assign by way of security items subject to retention of title or reservation of rights. The customer is only permitted to resell the goods in the ordinary course of business as a reseller on condition that the customer has effectively assigned to the supplier its claims against its customers in connection with the resale and the customer transfers ownership to its customer subject to payment. By concluding the contract, the customer assigns its claims in connection with such sales against a buyer to the supplier by way of security, who accepts this assignment at the same time.
Insofar as the value of the provider's security interests exceeds the amount of the secured claims by more than 20%, the provider shall release a corresponding proportion of the security interests at the customer's request.
2.5 In the event of the Customer's economic inability to fulfil its obligations towards the Provider, the Provider may terminate existing exchange contracts with the and the by rescission, continuing obligations by termination without notice, also in the event of an insolvency application by the Customer. § 321 BGB and § 112 InsO remain unaffected. The customer shall inform the supplier in writing at an early stage of any impending insolvency.
2.6 Fixed performance dates shall only be expressly agreed in documented form. The agreement of a fixed performance date is subject to the proviso that the Supplier receives the services of its respective upstream suppliers on time and in accordance with the contract.
3.1 The Customer and the Provider shall each appoint a responsible contact person. Unless otherwise agreed, communication between the customer and the provider shall take place via these contact persons. The contact persons shall take all decisions relating to the performance of the contract without delay. The decisions shall be documented in a binding manner.
3.2 The Customer shall be obliged to support the Provider to the extent necessary and to create all the conditions required for the proper execution of the order in its sphere of operation. To this end, it shall in particular provide necessary information and, if required, enable remote access to the customer's system. The customer shall also ensure that competent personnel are available to support the provider.
Insofar as it is agreed in the contract that services can be provided on site at the customer's premises, the customer shall provide sufficient workplaces and work equipment free of charge at the request of the provider.
3.3 The customer shall report defects in writing without delay in a comprehensible and detailed form, stating all information useful for the detection and analysis of the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect shall be stated.
3.4 The contracting parties are obliged to maintain secrecy about business and trade secrets as well as other information designated as confidential which becomes known in connection with the execution of the contract. Such information may only be disclosed to persons who are not involved in the conclusion, implementation or execution of the contract with the written consent of the respective other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information has become known, but in the case of continuing obligations not before their termination.
The contractual partners shall also impose these obligations on their employees and any third parties engaged.
3.5 The contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks. In this type of communication, they will therefore not assert any claims based on the lack of encryption, except insofar as encryption has been agreed beforehand.
4.1 If a cause for which the Supplier is not responsible, including strike or lockout, impairs compliance with deadlines ("disruption"), the deadlines shall be postponed by the duration of the disruption, including a reasonable restart phase if necessary. A contracting party shall immediately inform the other contracting party of the cause of a disruption occurring in its area and the duration of the postponement.
4.2 If the effort increases due to a disruption, the Provider may also demand payment for the additional effort, unless the Customer is not responsible for the disruption and its cause lies outside its sphere of responsibility.
4.3 If the customer is entitled to withdraw from the contract due to improper performance by the provider and/or to claim damages instead of performance or claims such, the customer shall declare in writing at the provider's request within a reasonable period of time whether it asserts these rights or continues to wish the performance of the service. In the event of a withdrawal, the customer shall reimburse the provider for the value of previously existing possibilities of use; the same shall apply to deteriorations due to intended use.
If the Provider is in default with the provision of the service, the Customer's compensation for damages and expenses due to the default shall be limited to 0.5% of the price for the part of the service that cannot be used due to the default for each full week of the default. The liability for delay is limited to a maximum of 5% of this price. This does not apply insofar as a delay is due to gross negligence or intent on the part of the supplier.
4.4 In the event of a delay in performance, the customer shall only have a right of withdrawal within the framework of the statutory provisions if the supplier is responsible for the delay. If the customer justifiably claims damages or reimbursement of expenses instead of performance due to the delay, the customer shall be entitled to demand 1% of the price for the part of the performance that cannot be used due to the delay for each full week of the delay, but no more than a total of 10% of this price. 3.3 Paragraph 2 sentence 3 shall apply accordingly.
5.1 There shall be no claims for material defects for an only insignificant deviation of the Supplier's services from the contractual quality.
Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, software errors that cannot be reproduced or otherwise proven by the customer, or in the event of damage that occurs due to special external influences that are not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties, unless this does not impede the analysis and elimination of a material defect.
For claims for damages and reimbursement of expenses, clause 6 shall apply in addition.
5.2 Claims due to a material defect shall become statute-barred within one year from the statutory commencement of the limitation period. The statutory periods for the right of recourse according to § 478 BGB remain unaffected; the same applies insofar as the law prescribes longer periods according to § 438 para. 1 no. 2 BGB (buildings and objects for buildings), in the case of an intentional or grossly negligent breach of duty by the supplier, in the case of fraudulent concealment of a defect as well as in the cases of injury to life, body or health.
The processing of a notice of material defect by the customer by the supplier only leads to the suspension of the limitation period insofar as the legal requirements for this are met. This does not result in a new start of the limitation period.
Subsequent performance (new delivery or rectification) can only affect the limitation period of the defect triggering the subsequent performance.
5.3 The Provider may demand remuneration for its expenses insofar as
6.1 The Provider shall only be liable for infringements of third party rights through its performance insofar as the performance is used in accordance with the contract and in particular in the contractually intended environment of use.
The Provider shall only be liable for infringements of third party rights within the European Union and the European Economic Area and at the place of use of the service in accordance with the contract. 4.1 Sentence 1 shall apply accordingly.
6.2 If a third party asserts against the Customer that a service of the Provider infringes its rights, the Customer shall notify the Provider without delay. The Provider and, if applicable, its upstream suppliers shall be entitled, but not obliged, to defend the asserted claims at their expense to the extent permissible.
The customer is not entitled to acknowledge third party claims before he has given the provider a reasonable opportunity to defend the third party rights by other means.
6.3 If the rights of third parties are infringed by a service of the Provider, the Provider shall, at its own discretion and at its own expense
The interests of the client are taken into account appropriately.
6.4 Customer's claims for defects of title shall become statute-barred in accordance with 4.2. 6 shall apply additionally to the Customer's claims for damages and reimbursement of expenses, and 4.3 shall apply accordingly to additional expenses incurred by the Provider.
7.1 In all cases in which the Provider is obliged to compensate for damages or expenses on the basis of contractual or statutory bases for claims, the Provider shall only be liable insofar as it, its executive employees and vicarious agents are guilty of intent, gross negligence or injury to life, limb or health. Liability without fault under the Product Liability Act shall remain unaffected. Liability for the culpable breach of essential contractual obligations (= obligations the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner may regularly rely on) shall also remain unaffected; liability in this respect shall, however, be limited to the foreseeable damage typical for the contract except in the cases of sentences 1 and 2. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
7.2 In the event of a loss of data, the Provider shall only be liable for the effort required to restore the data if the Customer has properly backed up the data. In the event of slight negligence on the part of the Provider, this liability shall only apply if the Customer has carried out a proper data backup immediately before the measure leading to the data loss.
8.1 Amendments and supplements to this contract, including an amendment to this written form clause, must be in writing to be effective and must be signed by both parties.
8.2 Neither party shall be entitled to assign any rights under or in connection with this Agreement to any third party without the prior written consent of the other party.
8.3 All disputes arising out of or in connection with this contract as well as any dispute concerning the formation of this contract shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
8.4 The place of jurisdiction for all disputes arising from the contract shall be Düsseldorf, provided that the customer is a merchant, a legal entity under public law or a special fund under public law.
8.5 If individual provisions of these terms and conditions or individual provisions of the contract are void or ineffective, the validity of the remaining provisions shall not be affected. In place of the invalid provision, the parties shall find a provision that comes closest to the economic purpose of the provision to be replaced in a legally permissible manner. The same shall apply in the event of a loophole.