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General terms and conditions

General terms and conditions

§1 Preamble

(1) The company, Kookietool - K-Evolution GmbH, CEO Matthias Klindworth, Hamburger Strasse 6, 27419 Sittensen, Deutschland - hereinafter referred to as "Provider" - provides its services on the basis of these General Terms and Conditions. These shall also apply to further future business relations, even if no express reference is made to them.

(2) The Provider provides services in the field of marketing websites on the Internet, in particular so-called search engine optimisation as well as other Internet services and programming in the broader sense.

(3) Conflicting GTC of the contractual partner shall not be recognised even if they are known, unless the provider expressly agrees to their validity in writing. These GTCs shall also apply in the event of unconditional performance of the service in the knowledge of conflicting terms and conditions of the customer.

(4) Deviations from these GTC and from contractual agreements must always be made in writing. This also applies to the waiver of the written form requirement.

§2 Conclusion of Contract & Contractual Partner

(1) The basis for the conclusion of the contract is the respective concrete offer of the provider, in which the scope of services and the remuneration are recorded. The offers submitted by the provider are always subject to change.

(2) The customer can accept the respective offer by his declaration in text form within a maximum period of 6 weeks from the date of the offer, provided that no other date was stated in the offer. A later acceptance constitutes an application for the conclusion of a contract by the customer. The provider reserves the right to accept the offer.

(3) The provider is always entitled to entrust subcontractors in each case with the fulfilment of all or individual contractual obligations.

§3 Subject Matter of the Contract

(1) The subject matter of the contract shall initially be measured according to the specific contractual relationship. These GTC shall serve to interpret the subject matter of the contract. In case of doubt, the content of the contract shall take precedence over the GTC.

(2) In the case of creative activities (e.g. website design), the customer and the provider shall always consult each other on an ongoing basis regarding the progress and objective of the service. The aim is to produce the commissioned service in such a way that it corresponds to the client's ideas while respecting the provider's creative freedom. After the number of drafts specified in the offer has been provided, a one-off correction phase shall take place, subject to any other arrangement. The number of any correction loops as well as the coordination phases shall otherwise result from the offer.

(3) In the case of creative activities, there is freedom of design which is only restricted by explicit specifications of the customer which have become the subject matter of the contract. Claims for defects and complaints with regard to design elements are excluded. If the design continues to be criticised by the customer after the correction phases provided for in the offer, the provider shall only be obliged to repeat the performance in return for separate remuneration.

(4) Services in relation to search engine placements and advertisements shall always proceed at the Provider according to the scheme "analysis, consultation, optimisation, placement, updating, analysis...".

(5) In the context of media and ad placements, the advertising strategy is discussed with the client in a briefing. The client is responsible for approving the selected advertising copy and keywords.

(6) Commissioned projects in the area of media planning shall be carried out by the Provider to the best of his knowledge and belief on the basis of the accessible documents of the media and the generally accessible market research data. The Provider does not owe the Client a specific advertising success as a result of these services.

(7) The booking of ad impressions, page impressions, clicks, etc. for a certain period of time is based on empirical values of the Provider and its suppliers. Should the booked volume be bindingly promised or guaranteed and not be exhausted within the agreed period, the placement period shall be extended until the agreed booking volume is reached. Deviations of up to 15% shall be deemed minor or not to constitute a defect or overfulfilment. The customer shall notify the Provider in text form of any possible complaints about the media service within 48 hours of placement.

(8) Search engine optimisation provided by the Provider shall be based on what is customary in the market when the contractual service is provided. Naturally, the requirements for good search engine visibility can change quickly and also without prior notice. Furthermore, not all factors of an optimisation can be depicted on the software side alone; rather, support on the content side is required. Therefore, no liability can be assumed for a good placement in a search engine.

(9) In search engine optimisation, all parties agree on factors to be optimised. The provider proposes the optimisations to the client. The client is responsible for selecting the desired optimisation.

(10) In the absence of a separate agreement, the provider is not obliged under the warranty to provide (software) updates or upgrades to its services or to otherwise keep the subject matter of the contract up to date, in particular not if third-party products change.

(11) Support services after handover of the subject matter of the contract to the customer are to be remunerated separately, unless they are covered by the contract. As a rule, this includes queries by the customer, support services by the provider, etc.

(12) Additional services and functions of third parties may also be included in the contract. With regard to these services, the GTCs of the third party shall then apply in addition.

§4 Order processing & cooperation obligations of the customer

(1) The customer shall immediately provide the provider with all information and documents required for the provision of the service. This includes in particular information on his existing IT system, intended hardware extensions or functional aspects. The information shall not be checked for accuracy by the provider.

(2) If the customer wishes to integrate optimisations himself or if he does not release the necessary access for the provider, the provider shall make the content to be optimised available to the customer for his own integration.

(3) If the Customer wishes the Provider to integrate the Provider's services, the Customer shall in particular grant the Provider access to its databases and websites as well as to other systems necessary for the performance of the contract (tracking tools or similar). The same shall apply if it is not possible for the Provider to enter any services or content on the Customer's website for other reasons.

(4) The customer shall either provide texts, search terms and / or search term combinations to be optimised or select them from a pre-selection made by the provider.

(5) The customer is obliged to check the documents provided for the execution of the order (texts, photos, logos, data sets, etc.) as well as search terms selected by him for any existing copyright trademark rights or other rights of third parties. If a claim is made against the provider due to such an infringement of rights, the customer shall indemnify and hold the provider harmless.

(6) If the provider uses software from third parties to produce the subject matter of the contract and / or this is done at the request of the customer, the customer must provide a licence for use himself. The scope of performance depends on the respective functional scope of the third party product.

(7) Insofar as contracts for third-party services are concluded for the customer in the name of and for the account of the provider, the customer undertakes to indemnify the provider internally against all liabilities arising therefrom.

(8) The customer must inform the provider without culpable hesitation of any necessary changes to the customer's data which affect the processing of the order or services provided within the framework of an ongoing order.

(9) If the customer does not comply with his obligations either immediately or despite a deadline that may have been set, the provider cannot provide his services or can only provide them to a limited extent. This has the consequence that the optimisation measures do not take effect at all or only very delayed. The provider reserves the right to terminate and invoice the activity in this case.

(10) The Provider shall be entitled to commence performance of the contractual service immediately upon conclusion of the contract.

(11) Irrespective of the specific contractual relationship, the provider shall be entitled to incorporate findings and other know-how obtained from the project with the client into other projects, unless the content is subject to an explicit obligation of confidentiality on the part of the provider.

§5 Changes in performance

(1) Changes to current orders may incur costs under certain circumstances. The Customer should contact the Provider as soon as possible if it becomes aware that a change is required. The provider will act in the same way.

(2) The provider shall inform the client of the possible effects of the desired change, in particular with regard to remuneration, additional work and deadlines. The contracting parties shall immediately agree on the proposal for the implementation of the change request and, if necessary, conclude a supplementary agreement. If no agreement is reached or if the change procedure ends for another reason, the original scope of services shall remain.

(3) The dates affected by the change procedure shall be postponed as far as necessary, taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period. The Provider shall notify the Customer of the new dates.

(4) The Provider shall not be liable for any delays, legal or technical problems or other adverse effects on the subject matter of a project if the Customer has overridden the Provider's proposal for a change in performance.

(5) If the Client wishes to pause the project, the Provider shall be entitled to charge for services already rendered. The Provider shall inform the Client whether the pause may have an impact on the possible success of the planned performance.

§6 Acceptance

(1) The provider is entitled to demand one or more interim acceptances from the customer of definable parts of the service to be provided (interim acceptance). The customer is obliged to accept the service that is essentially in accordance with the contract after being requested to do so by the provider. Acceptance may not be refused for reasons of taste.

(2) Requests for acceptance and the acceptances themselves may be made in text form (e-mail).

(2) Correction submissions are to be carefully checked by the customer. Error corrections shall be clearly marked. Any fundamental or subsequent requests for changes may incur costs.

(3) Upon notification of completion of a (partial) service or in the case of final acceptance, the customer shall be obliged to carry out an inspection of the (partial) service to determine whether the services have been substantially performed in accordance with the contract.

(4) If the customer does not consider the services provided to be essentially in accordance with the contract, he must notify the provider of any complaints in a comprehensible manner and in text form without culpable hesitation. This notification must be sufficiently specific to enable the provider to rectify the service without further enquiry to the customer. If the services to be accepted are presented and discussed in an on-site meeting, the customer must give notice in text form within a period of 7 days after the meeting if he does not accept the services, unless a different procedure was mutually agreed between the parties in the meeting. After fruitless expiry of the deadline, the services presented shall be deemed to have been accepted.

(5) Acceptance shall be deemed to have taken place if the customer fails or refuses to accept the service within a reasonable period of time set by the provider in text form after handover or if the service has been used by the customer within the intended scope.

(6) If the customer complains about services within the time limit, the provider will carry out a rectification. The rectification shall be in accordance with the customer's specifications if the customer's complaint is so specific that we can rectify the service without further enquiry with the customer. If the complaint is not so specific, the supplier is only obliged to carry out an industry-standard rectification at its own discretion.

§7 Prices

(1) Costs and prices result from the offer.

(2) If no agreement has been made on the remuneration for a service which the customer could only expect to be provided against remuneration according to the circumstances, or if the scope of the contractually agreed service is exceeded, the customer shall pay the remuneration customary for this service in accordance with the prices stated in the quotation.

(3) Expenses shall be reimbursed separately unless otherwise agreed.

(4) The provider's fee claim arises for each individual service as soon as it has been provided. The Provider shall be entitled to issue invoices at reasonable intervals according to the respective amount of work performed and expenses incurred.

(5) The Provider shall be entitled to demand advance payments to cover expenses.

(6) The Provider shall be entitled to an appropriate remuneration for all work of the Provider which is not carried out for a reason for which the Customer is responsible. Upon payment of this remuneration, the Client shall not acquire any rights to such work; rather, concepts, designs and other documents that have not been executed shall be returned to the Provider without delay.

(7) The Provider shall invoice recurring services on a monthly basis. At the provider's discretion, a different billing interval may be used.

(8) In the absence of contractual agreements, the provider shall refer to the remuneration guidelines of a relevant industry association.

(9) Unless otherwise stated, prices are in euros and exclusive of statutory value-added tax.

§8 Payments

(1) Payments can be made by direct debit authorisation, bank transfer or Paypal as agreed. Settlements by invoice shall only be accepted by separate agreement. Invoices shall be issued by arrangement for services to be rendered. If there is no agreement, payment shall be made in advance. Until payment has been made, there is a right of retention with regard to the services of the provider.

(2) If the amount to be paid is collected by the provider from the customer, it applies, in deviation from the statutory regulation, that the customer must receive the advance information (pre-notification) one to three days in advance.

(3) Invoices are due immediately and without deduction and are collected accordingly by the provider. Receipt of payment is deemed to have occurred when the payment is credited to the provider's account.

(4) Set-up fees are due immediately after conclusion of the contract. Monthly fees are due on the last day of the month in which the service is to be provided, even without any other clarification.

(5) Should the customer be in arrears with the payment of a total of two instalments, the costs incurred for the entire term shall become due immediately. In the event of default, the Provider shall also be entitled to charge annual interest at a rate of 5 percentage points above the base interest rate, or 8 percentage points above the base interest rate in the case of entrepreneurs, and to withhold deliveries or other services arising from this or other transactions until all claims arising from this or other orders have been met in full.

(6) Offsetting against counterclaims is only permitted if the supplier acknowledges the counterclaim or if the counterclaim has been legally established or is undisputed. The customer waives the assertion of a right of retention from previous or other transactions from a business relationship with the provider. All payments shall in principle be credited against the oldest debt, irrespective of any provisions of the customer to the contrary. Partial services may be invoiced separately.

(7) The Provider reserves the right to charge a flat rate of EUR 15.00 per necessary letter in the event of default and for the processing of reminders. Furthermore, in the event of default, the provider reserves the right at any time, at its discretion, to engage legal assistance (lawyer or debt collection agency) to pursue claims.

(8) The term of payment shall be deemed to be "immediately upon receipt".

§9 Data of the customer / data on the customer's website

The customer is responsible for all data on his websites and servers. Irrespective of whether the provider has contributed to parts of the data, the customer assumes full responsibility for data on his websites and servers as a result of his acceptance of the services, also in relation to the provider. In this respect, the customer is solely responsible for the legal admissibility of the contents of his pages provided by him as well as for the information provided by him, in particular the search terms, keywords, terms to be optimised and texts. The same applies to the protection of the rights and freedom of third parties, in particular with regard to copyright, competition law, trademark law and criminal law. This also applies to search terms, keywords, terms to be optimised and texts selected by the customer, which are based on a suggestion by the provider within the framework of the analysis phase.

§10 Data protection

(1) The applicable data protection regulations - in particular the Federal Data Protection Act (BDSG), the Teleservices Data Protection Act (TDDSG) and the Telecommunications Data Protection Ordinance (TDSV) - shall be complied with by the Provider in their respective applicable version. Employees will only be given knowledge of the access data or access to data stored by the customer if this is absolutely necessary for the performance of the respective contractual relationship.

(2) By concluding the contract, the customer agrees that, within the framework of the contract concluded with him, data relating to his person may be stored, amended and/or deleted by the provider and his vicarious agents and transmitted to third parties as necessary. This applies in particular to the transmission of data necessary for the registration and/or modification of a domain in search engines or similar, whereby these may subsequently become public.

(3) The customer is a client within the meaning of data protection law. To the extent necessary, the Provider shall sign the necessary documents for the Order Data Agreement to the Customer. The provider assumes that the customer will communicate this necessity and send the provider corresponding agreements.

§11 Delivery & Deadlines

(1) Agreements on deadlines, in particular those by the non-observance of which a party is in default pursuant to § 286 para. 2 without a reminder, shall be recorded in writing and/or confirmed. Delivery deadlines shall only be binding if the customer has duly fulfilled any obligations to cooperate (e.g. procurement of documents, information, releases, etc.)

(2) If execution or completion deadlines have been specified by the supplier and made the basis for placing the order, such deadlines shall be extended in the event of strikes and cases of force majeure, and namely for the duration of the delay.

(3) Insofar as an unexcused delay in the contractually agreed execution and completion deadlines has occurred, the customer shall not be entitled to assert the rights to which he is entitled by law until he has granted the supplier a reasonable grace period of at least 14 days. This period begins with the receipt of a reminder letter to the provider.

§12 Contract Term & Termination

(1) The term of the contract and the period of notice shall be determined by the specific contractual agreement. Within the framework of this period, both parties may terminate the contract without stating reasons without notice at the end of the respective contract period. Notice of termination must be given in writing and sent to the provider. The date of receipt of the notice of termination shall be decisive for the observance of the period.

(2) If the contract is not terminated in due time, the contract shall be automatically extended by the agreed minimum contract term.

(3) The parties reserve the right of extraordinary termination.

(4) In the event of ordinary termination, the provider shall be entitled to continue to provide the service as contractually owed until the end of the contract term, unless the customer releases the provider from this. A release does not release the customer from paying the agreed remuneration for the service of the provider. After the end of the contract, the service obligation expires immediately.

§13 Copyright & Trademark Law

(1) All creative services of the provider or third parties engaged by it, including those from presentations, also individual parts thereof, shall remain the property of the provider, even if they are charged separately.

(2) By paying the fee, the client acquires the right to use the content created in accordance with the contract for the agreed purpose and to the agreed extent of use, in particular insofar as the purpose results from the offer or the contract. In the case of a licence payment for rental, the right of use ends with the cessation of the licence payment; in the case of the purchase of a licence for installation, the right of use never ends.

(3) Changes to services of the provider, such as their further development by the customer or by third parties working for the customer, are only permissible with the express consent of the provider and - insofar as the services are protected by copyright - of the author. In addition, a customary use of e.g. created websites shall of course remain permitted as the subject matter of the contract.

(4) In the case of the creation of software or other IT projects (websites, databases, etc.), the provider is not obliged to provide the software in an open source state or the associated development documentation. The customer is not permitted to interfere with the source code of the created software or to decompile it, unless there is an exception according to the copyright law or it is explicitly mentioned in the offer or order.

(5) Further terms of use for the use of the Provider's software can be found in the respective terms of use and are additionally supplied on a case-by-case basis.

(6) The customer shall emphatically oblige his employees to comply with the contractual terms and conditions and the copyright vis-á-vis the provider. In particular, the customer shall request his employees not to make any unauthorised copies of the programme or the user documents. If an employee of the customer infringes the copyright of the provider, the customer is obliged to cooperate in the clarification of the copyright infringement, in particular to inform the provider immediately about the corresponding infringing acts.

(7) If third party services are used in the service of the provider, which fall under a so-called free licence (e.g. GNU licence), the customer shall nevertheless have no right to declare the services of the provider as free services as well, to pass them on to third parties or otherwise make them accessible to the public of third parties.

(8) The customer is solely responsible for the content of his website. This applies in particular with regard to copyright, protection of minors, telemedia, press, trademark, competition law and the right to one's own image as well as other possible legal areas.

(9) Independently of the customer, the customer is responsible for the content of his website.

(9) Irrespective of the specific contractual relationship, the provider shall be entitled to incorporate findings and other know-how which he obtains from the project with the client into other projects; unless it is a matter of content which the provider has explicitly undertaken to keep confidential.

§14 Warranty, obligation to give notice of defects, default in performance & liability

(1) The warranty period for the services provided by the provider is twelve months, unless a defect was maliciously concealed.

(2) The customer must inspect (completely) provided services immediately after delivery, insofar as this is customary in the ordinary course of business, and notify the provider immediately if a defect becomes apparent. If the customer fails to notify the supplier, the service shall be deemed to have been approved, unless the defect was not recognisable during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise the performance shall be deemed approved also in view of this defect. The provisions on the obligation to give notice of defects shall not apply if a defect was fraudulently concealed. The regulations on acceptance of the performance shall take precedence.

(3) The customer shall support the provider to the best of his ability in the event of a possible rectification of defects and shall completely back up programmes, data and data carriers before rectifying the defect. The presentation of defects shall be made in such a way that the defect is reproducible and identifiable by the provider with reasonable effort. Non-reproducible and one-off errors do not constitute a defect in the contractual service. If defects can only be remedied with the customer's cooperation, the provider may consider the contract to have been fulfilled after the fruitless expiry of a period of at least two weeks set for the performance of the corresponding action.

(4) In the event of a defect, the supplier shall have the choice of subsequent performance. Subsequent fulfilment will take place within a reasonable period of time regardless of the number of attempts. The customer is not entitled to the right of self-execution. If a defect cannot be remedied even after two repeated attempts and after setting a grace period of four weeks, the customer shall be entitled to terminate the contract in writing with immediate effect; the customer shall not be entitled to any further claims for damages. The Provider may refuse subsequent performance as long as the Customer has not yet paid the remuneration owed for the creation services in full and the outstanding remuneration is not disproportionately high taking into account the defect.

(5) The customer's warranty rights shall not apply in the event of defects that are directly or indirectly attributable to deliveries and services of the customer or content supplied by the customer, or if the customer has made changes to the service provided by us or has had such changes made by third parties, unless such changes had no influence on the occurrence of the defect.

(6) In the event of force majeure for which neither party is responsible, neither party shall be liable to the other for any delay or failure to perform resulting therefrom.

(7) The customer is aware that most search engine providers are entitled under their guidelines to delete individual web pages from their search offer or to change the search algorithm at any time. The provider cannot accept any liability for such a course of action.

(8) In no case shall the provider be liable for factual statements about products, services or business relationships that originate from the customer or that the customer has approved. The provider shall point out legal risks if they become known to him in the course of his activities; however, there is no obligation to verify the existence of such risks. The customer shall indemnify the provider against claims of third parties. Notwithstanding this, the provider is entitled to refuse a service in the event of significant legal risks.

(9) The provider is liable for intent and gross negligence in accordance with the statutory provisions. The provider shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer may regularly rely, as well as in the event of damage resulting from injury to life, limb or health. In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage that can typically be expected to occur, i.e. to the order value. Liability under the Product Liability Act remains unaffected by the limitation of liability. The liability provisions shall also apply in favour of the provider's vicarious agents.

(10) The provider shall not be liable for the loss of data insofar as the damage is due to the fact that the customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

(11) If the Provider acts on behalf of and for the account of the Customer vis-�-vis third parties, there shall be no liability for defects in the performance of the third party at the expense of the Provider. If necessary, the provider shall assign rights against third parties to the customer.

(12) In the event of an infringement of industrial property rights or copyrights due to the fault of the provider, the provider may, at its own discretion and at its own expense, make changes with regard to the affected performance after prior consultation with the customer which, while safeguarding the interests of the customer, ensure that an infringement of property rights no longer exists or acquire the necessary rights of use for the customer. The customer is obliged to inform us without delay of any third party asserting claims against the customer on account of our performance and in this case not to enter into communication with the third party without consulting us.

(13) Furthermore, the provider is not liable for the economic success of the proposed or implemented measures. In this respect, the customer is aware that the placement of the website to be optimised in the search engines cannot be guaranteed by the provider, as this is solely at the discretion of the respective search engine operator. The customer is also aware that the rankings achieved can change at any time, e.g. due to changes made to the search algorithm by the search engine operators.

(14) All the aforementioned limitations of liability shall also apply mutatis mutandis in favour of the Provider's employees and agents.

(15) Exclusions of liability in this section shall also apply to claims for defects.

(15) The provider cannot give any warranty for an uninterrupted and trouble-free functioning of the services and functions provided by third parties (e.g. search engine, online tools, social media sites etc.).

(16) In the case of third-party products used (CMS, tools), a warranty cannot be given for the up-to-dateness of third-party products. Likewise, it does not constitute a warranty case if third-party products are changed in such a way that the originally usable products become unusable or limited in their function as a result of an update. The adjustments due to changes to third-party products shall be remunerated separately.

(17) The Provider shall not compensate the Customer in the event of non-publication or deletion (including for reasons of search engine policy violation) of its website, by one or more search engines, as this is solely at the discretion of the search engine operators.

(18) Compensation for consequential damages, financial losses, lost profits, savings not achieved, loss of interest and damages from third party claims, also from the title of product liability against the client, is excluded in any case.

§15 Confidentiality & References

(1) The client shall keep all know-how accruing to him through the work of the provider, as well as any business or trade secrets for himself and shall contractually oblige his employees and freelancers or other vicarious agents to do so. This shall not apply insofar as it concerns information which is generally known. The secrecy applies in particular to information about search habits and technologies of the search engines as well as to such information which concerns the general procedure or correspondence with the provider. This obligation shall also apply for two years after the end of the contract.

(2) For advertising purposes, the provider may name the customer as a reference customer. The Provider shall have the right to name the Customer on its websites, in social media channels, in press releases, in print projects, in the context of lectures or in other media, unless the Customer expressly prohibits this in writing, and to use the Customer's logo. The client agrees that the provider may also use the results of the service provision or parts thereof free of charge as a reference for self-promotion and for client consultation. In any case, even if the customer has been granted the right of use, the provider remains entitled to use all designs, concepts and other works in the context of self-promotion.

§16 Place of Performance & Jurisdiction

(1) Place of performance is the registered office of the provider.

(2) Legal disputes arising from or in connection with this contract shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

(3) If the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer does not have a permanent place of residence in Germany, the place of jurisdiction for legal disputes arising from or in connection with this contract shall be the registered office of the provider.

§17 Final provisions

(1) This contract regulates all rights and obligations of the contracting parties in connection with the agreed services.

(2) If any provision of this contract proves to be invalid or void, this shall not affect the validity of the remaining provisions of the contract. In this case, the parties shall agree on effective substitute provisions which come as close as possible to the invalid provisions in their regulatory intentions and in their economic effects. The foregoing shall apply mutatis mutandis to unintended loopholes.

(3) Amendments and additions to this contract shall be documented in writing.

(4) This contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980 (UNCITRAL Sales Convention) and the international conflict of laws rules applicable at the customer's place of business as well as the Federal Republic of Germany (for the FRG - Introductory Act to the German Civil Code).

(5) Subject to a deviating - according to German law - exclusive place of jurisdiction, the parties agree that the registered office of the Provider shall be the place of jurisdiction for all legal disputes arising from or in connection with this contract. The Provider shall remain entitled to bring actions against the Customer before the court having jurisdiction for the Customer's registered office.

(6) In the event of ambiguities or contradictions, the respective orders, together with the description of services, shall take precedence first and then these GTC.

(7) Status of these General Terms and Conditions: 01.02.2021

. Software Usage Agreement §1 Preamble

The manufacturer is the owner of the licence rights and marketing rights of the software "CCM19" and any individual modules and the documentation.

The customer is the purchaser of the software and the associated rights of use, which are listed below.

§ 2 Subject matter of the contract

The subject matter of this contract is the delivery of the software purchased from the manufacturer in the respective version ordered and the granting of a right to use the software under the terms of this contract.

The manufacturer shall provide the programmes in machine-readable form with the user documentation.

The documentation may be in written form on paper or delivered as a machine-readable document.

Use of the software is only possible after acceptance of the provisions of this user agreement. By using the software, the customer expressly declares that he has read and acknowledged this usage agreement.

§ 3 Right of use upon purchase

The manufacturer grants the customer the non-transferable, personal, non-exclusive right, not limited in time at the time of purchase, to use the software purchased from the manufacturer and the user documentation belonging to this software in accordance with the terms of this agreement. The customer is not entitled to allow third parties to use the software.

The customer shall be responsible for the use of the software and for the results obtained therewith.

The customer is furthermore responsible for the selection and use of other software, hardware and services in connection with the software that is the subject matter of the contract, i.e. the customer himself must ensure the necessary compatibility.

§ 4 Scope of the right of use

Use is understood to mean loading and running the programme from servers in the system environment currently supported by the manufacturer and using it to solve tasks. The customer may only modify and edit the software for his own use but may not duplicate it (with the exception of making a backup copy) and may not make the source code available to third parties. He may not use the programme in order to create identical or essentially similar software.

§ 5 Rights to the software

The customer acknowledges that he has no other rights to the software than those agreed in this contract and that all other rights, in particular all rights of exploitation and disposal over the software, belong exclusively to the manufacturer.

§ 6 Warranty.

The manufacturer draws attention to the fact that, according to the state of the art, it is not possible to create software in such a way that error-free operation in all applications and combinations can be guaranteed.

However, the manufacturer guarantees to constantly work on improving the software and is grateful for any error message.

The manufacturer warrants that the software can be used in accordance with the currently released documentation and in the current system environment and that it fulfils the functions stated therein.

A defect shall only be deemed to exist if the subject matter of the contract does not comply with the generally announced documentation valid at the time of dispatch or download of the subject matter of the contract, although the subject matter of the contract is used under the announced conditions of use.

To the extent permitted by applicable law, the warranty is limited to 6 months after delivery of the software, unless a separate contract has been concluded for the further maintenance of the software. If no notice of defect is given by the customer within the 6 months after delivery, the customer shall be deemed to have accepted the software free of defects.

The manufacturer shall either replace software for which a defect within the meaning of the above point is reported within 6 months of its installation with a defect-free copy or remedy the defect, provided that:

1. the software has always been used properly and also in accordance with the instructions,

2. the software has not been edited, further developed or linked to other software, except via the freely given interfaces,

3. the defect complained of is reproducible at the manufacturer;


4. the system environment specified in the current documentation is sufficiently configured (e.g. operating system, PHP/MySQL versions).

The manufacturer does not guarantee that all program errors can be eliminated; further, not for errors, malfunctions or damage resulting from improper operation. The manufacturer is not liable for errors or damage that can be traced back to errors in the server operating system or in browsers used to operate the software.

It should be expressly noted in this connection that no warranty or compensation shall be provided for errors that occur as a result of changes or adaptations to the programme by the customer himself.


If the customer suspects a defect covered by the warranty in the software, he must inform the manufacturer immediately and send him a precise description of the defect.

The manufacturer shall analyse the information sent by the customer and make the necessary corrections to the software or take other measures which, at its discretion, appear appropriate to avoid and/or prevent such defects in the software.

He shall send the customer the corrected programme and/or a list of the measures to be taken by him.

If the manufacturer determines that suspected errors in the software are not defects covered by the warranty, that they are attributable to input errors or improper use of the software, or that they have their cause in the hardware, he may charge an appropriate fee and the associated expenses for the personnel and computer time spent investigating the suspected errors. The customer shall reimburse these at the currently valid charging rates, unless individual charging rates have been agreed.

§ 7 Prerequisites for the use of the software

The customer guarantees the following technical requirements for the installation, trouble-free operation and use of the software.

Web server with PHP version 7.2 or higher

A MySQL database version 5.0 or higher

E-mail system

Use of the software via web browser Firefox version 30.0 or higher, Chrome version 32.0 or higher, Internet Explorer version 9.0 or higher each with JavaScript enabled.

§ 8 Compensation & Product Liability

The manufacturer is liable exclusively for damages, insofar as intent or gross negligence can be proven against him, within the framework of the statutory provisions. Liability for slight negligence is excluded. In any case, damages shall be limited to the greater of the following amounts:

(1) the remuneration for the software which caused the damage or is directly related to it. The remuneration valid at the time the claim arose shall be decisive.

(2) In the case of maintenance contracts, the amount of damages shall be limited to the average annual fee.

Compensation for consequential damage, financial loss, loss of profit, savings not achieved, loss of interest and damage arising from third party claims, also from the title of product liability against the client, is excluded in any case.

The Contractor shall be liable for damage caused by its assistants or employees only insofar as the damage was caused by an act of gross negligence which was unavoidably necessary for the fulfilment of the contractual obligations.

Compensation for the destruction of data or software shall only be paid in any case insofar as the customer has fulfilled his obligations for the proper operation of a data centre (e.g. documented data backup and outsourcing in at least three generations). This also applies if the manufacturer was previously informed of the possibility of such damage.

The manufacturer shall not be liable to the customer for damage which is somehow connected with or the result of the software. The Customer and its employees remain responsible for verifying the results obtained with the Software and for the liability. The manufacturer is limited to the correction of errors and defects of the purchased software in accordance with the provisions of the contract item.

The Customer shall be solely responsible for checking the input of data for the Software and the resulting output data and shall indemnify the Manufacturer against all claims for damages, including those for the Manufacturer's omissions, which are based on or somehow related to the use of the programs or the data obtained with them.

The manufacturer is also not liable for any damage or loss of data resulting from failures or errors in the web server (including PHP and MySQL) on which the software is running, or from errors in the browser software used, as well as its guest system.

§ 9 Data backup.

It is the customer's responsibility to avoid data loss by making regular data backups.

§ 10 Duration of the agreement

The manufacturer grants the customer the right to use the software at the time of purchase for an unlimited period of time, but may terminate this agreement for good cause with immediate effect by registered letter, without the customer being entitled to any, even partial, repayment of the remuneration. Good cause shall be deemed to include in particular:

(1) a serious breach of contract by the customer which is not remedied despite a reasonable period of grace,

(2) the opening of preliminary, composition or bankruptcy proceedings against the assets of the customer or the dismissal of bankruptcy proceedings for lack of assets covering costs.

In the event of termination of the contract, the customer shall delete the software on the web server, confirm this in writing at the request of the manufacturer and also delete the software on data carriers together with the documentation, including all reproductions (copies), even if only partial.

§ 11 Documentation

The customer may make copies, excerpts or even only partial copies of documents, records, notes, drafts, descriptions, diagrams, programmes, etc., which he has received from the manufacturer, in whatever form, only if and to the extent that this is necessary for the performance of this contract.

The customer shall keep all items referred to in this clause in safe custody and protect them from their contents coming to the knowledge of unauthorised persons. He acknowledges the Contractor's exclusive ownership of them and shall hand them over to the Contractor upon termination of the Contract and shall have no right of retention over them.

General Explanations and Conditions of the Software Usage Agreement and the Software Maintenance Agreement § 1 Remuneration and terms of payment

Invoices issued by the Manufacturer are payable without any deduction and free of charges no later than 30 days after the invoice date or on the due date.

If a direct debit order is issued, the debit shall be made at the beginning of each month or on the date of the first booking.

§ 2 Confidentiality & Security

(1) The parties undertake to maintain secrecy for an unlimited period of time with regard to business or trade secrets which are subject to data protection, which constitute competition-relevant know-how or which are marked as confidential (hereinafter referred to as "confidential information") and which are provided to them or become accessible to them.

(2) The Confidential Information may only be used within the scope of the purpose of the contract. Beyond that, it may neither be recorded nor passed on or exploited for own purposes. The Contractor shall ensure by means of suitable contractual agreements with the employees and agents working for it that they also refrain for an unlimited period from any own utilisation, disclosure or unauthorised recording of confidential information. The transmission of confidential information shall not constitute the granting of a licence without an express agreement to the contrary.

(3) The duty of confidentiality shall apply to any way of obtaining knowledge, whether orally, in paper form or in electronic form (by data transmission or on data carriers), by allowing inspections or in any other way by direct or indirect transmission.

(4) The parties shall take all reasonable precautions to prevent access by third parties to confidential information of the other party (e.g. access control).

(5) The parties are entitled to create hand files in physical or electronic form in connection with individual business transactions during the ongoing business relationship.

§ 3 Other provisions

(1) This contract regulates all rights and obligations of the contracting parties in connection with the agreed services.

(2) If any provision of this contract proves to be invalid or void, this shall not affect the validity of the remaining provisions of the contract. In this case, the parties shall agree on effective substitute provisions which come as close as possible to the invalid provisions in their regulatory intentions and in their economic effects. The foregoing shall apply mutatis mutandis to unintended loopholes.

(3) Amendments and supplements to this contract shall be documented in writing.

(4) This contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980 (UNCITRAL Sales Convention) and the international conflict of laws rules applicable at the customer's place of business as well as the Federal Republic of Germany (for the FRG - Einführungsgesetz zum Bürgerlichen Gesetzbuch).

(5) Subject to a deviating - under German law - exclusive place of jurisdiction, the parties agree that the Manufacturer's registered office shall be the place of jurisdiction for all legal disputes arising from or in connection with this contract. The Manufacturer shall remain entitled to bring actions against the Customer before the court having jurisdiction for the Customer's registered office.