Phase 4 Communications Ltd.
Franz-Joseph-Straße 11
80801 Munich
(hereinafter referred to as “provider”)
1. Preamble, scope, definitions
1.1 The provider provides work and services in the field of computer and multimedia (Internet, CD-ROM). These include, but are not only, programming, hardware/software configurations and installations, the creation of computer-aided layouts and graphics, the preparation of concepts and editorial as well as research work (hereinafter referred to as “products” or “product”) and finally management and consulting services (hereinafter referred to as “services” or “services”). In addition to the provider, other contractors are often involved in the implementation of a project of the customer. In many cases, these are agencies that, for example, only insert the editorial content on the basis of a homepage created and programmed by the provider, a layout or the like.
1.2 The purpose of these General Terms and Conditions is, among other things, to grant the entitled customers the corresponding rights of use of the provider’s services on the one hand and to avoid, on the other hand, an abusive exercise of the rights of use by third parties.
1.3 The following terms and conditions apply to the use of all products or services provided to the customer by the supplier. These terms and conditions also apply to each update of the Products.
1.4 The customer shall receive from the supplier the rights of use of the products under the following conditions.
1.5 The following general terms and conditions of the provider apply exclusively; Conflicting or deviating terms and conditions of the customer shall not be accepted, unless the provider has expressly agreed to their validity in writing. The general terms and conditions of the provider shall also apply if the supplier carries out the delivery or service to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. The general terms and conditions of the provider also apply to future transactions with the customer.
1.6 These General Terms and Conditions apply only to companies as well as legal entities under public law and special funds under public law within the meaning of Section 310 para. 1 BGB.
1.7 In these terms and conditions,:
- Media: electronic storage medium such as USB stick, floppy disk, magnetic tape, CD-ROM or hard drive for the permanent determination of machine-readable information;
- Download: remote transmission of data for the permanent electronic storage of works or other data stored electronically in a database in a computer of the end-user;
- Calculator: technical device used by the user for the processing of machine-readable data, including memory, screen and printer;
- Storage: the electronic input of works or other machine-readable data into a computer by means of a keyboard, their recording in machine-readable form on data carriers or their electronic input by scanners.
If, moreover, there are disagreements between the contracting parties within the scope of use on the content of computeric terms and symbols, quality requirements, format requirements, etc., the respective DIN standards currently valid for the conclusion of the contract must be complied with. If a DIN standard is amended after the conclusion of the contract, but before the completion of a product, the supplier is required to take into account the requirements of the new standard, insofar as this is reasonable for him. However, the provider does not have to make significant changes to his work and services insofar as he can achieve this only by a considerable amount of time or money.
2. Use
2.1 Copyright
The products, including their software components, program and data concepts, are protected by copyright. The customer fully acknowledges all rights of the provider to the products and services (patents, trademark rights, copyrights, trade secrets, etc.).
2.2 Customer’s rights of use
The supplier grants the customer a simple, non-exclusive and non-transferable right to use the products and services for the territory of the Federal Republic of Germany, which is limited in accordance with clauses 2.3 to 2.7, for his own use only. All further copyright rights to the products and services remain with the provider. The customer is not entitled to transfer these above usage rights to third parties and/or to pass them on in any other way.
2.3 Multiple use and network use
The use of a product or service is limited to the network operated by the customer. Permission to use the network does not include the use of the network by third parties. Multiple download or other storage does not extend the customer’s usage rights; its rights remain as if the products/services had been accessed only once.
2.4 Reproduction
The customer may only reproduce a product if the respective reproduction is absolutely necessary for the contractual use of the product. The required duplications include the installation on the mass memory of the used hardware and the loading of a product into the respective memory. The production by the customer of a backup copy, which is necessarily marked as such, is permitted; however, only a single backup copy may be made and stored.
If, for reasons of data security or ensuring a rapid reactivation of the computer system after a total failure, it is essential to back up the entire database, including the computer programs used, the customer may make backup copies in the required number. The data carriers concerned shall be marked accordingly. The backups may only be used for purely archival purposes.
Notices of intellectual property rights shall be fully maintained in the event of permitted reproduction.
2.5 Customer’s security measures
The customer is obliged to prevent unauthorized access by third parties to the products/services as well as to any accompanying material available by appropriate precautions. The data carriers/backup copies must be stored in a place secured against unauthorized access by third parties. The customer’s employees must be strongly advised to comply with these terms and conditions as well as the provisions of copyright law.
2.6 Decompilation and modification of software products
If the products are software, the retranslation of the object program form into the source program form (decompilation/re-assembly) as well as other types of reverse engineering of the various stages of production of the product are not permitted, unless the supplier has fallen bankrupt and has not made any provision for the further maintenance of the product or such actions are necessary for interoperability with independently created computer programs. The interface information required for the purpose of establishing the interoperability of any independently created computer program may be requested from the provider against reimbursement of the cost contribution.
In addition, program changes and other program processing of the products are not permitted by the customer.
2.7 No change to intellectual property rights notices
Under no circumstances shall the customer be authorized to make changes to companies, trademarks, copyright notices and other notices of rights and rights of use contained in the products/services.
2.8 Presentations/Pitches
If no order is placed after a presentation, all services, in particular the presentation documents and the designs, works, ideas etc. contained therein, remain. property of the provider. The customer is not entitled to use, process or use this material in any form, in any form, or to use it as a basis for the production of his own material. In the absence of placing the order, the customer shall return all presentation documents in his possession to the Agency without delay. If no order is placed, the provider is free to use the presented ideas, works, designs, etc. for other projects and customers.
3. Compensation, invoicing, payment
3.1 The remuneration to be paid to the provider by the customer is determined by the respective valid list of services of the provider.
3.2 Unless otherwise agreed by contract, the offer price will be charged in two parts for budgets above Euro 3,000.00 (net order amount): 50 after the award of the contract, 50 after completion of the project. If the order amount is lower, invoicing takes place after the project has been completed. The remuneration is due for payment immediately after receipt of the invoice by the customer. After two weeks after receipt of the service and receipt of the invoice, the customer is automatically in default without the need for a reminder.
If the customer is in default of payment, the provider is entitled to demand default interest in the amount of 8 p.a. above the applicable base interest rate against the customer, insofar as these are claims for remuneration. Otherwise, the provider is entitled to demand interest on arrears in the amount of 5 p.a. above the applicable base interest rate. If the provider is able to prove a higher damage caused by delay, the provider is entitled to claim it. The customer is entitled to prove that the provider has suffered no or a significantly lesser damage as a result of the delay in payment.
3.3 Unless otherwise agreed in writing, the remuneration is exclusive of the statutory value added tax.
4. Penalty of contract
In the event that the customer uses, passes on or otherwise makes available to third parties in breach of the conditions set out in paragraph 2, the customer shall be obliged to pay the supplier a contractual penalty of EURO 2,500.00 in any case of the infringement, excluding the continuation context. The assertion of further claims for damages is not excluded by this.
5. Installation, instruction, completion and delay
5.1 Any necessary installations of a product are carried out via a download or in the form of the transfer of another medium.
5.2 In the event of a separate agreement, the Supplier will instruct the Customer and a certain number of its employees to use the Program after installing a product. At the customer’s request, the provider will repeat or intensify the briefing; the additional briefing time must be paid separately.
5.3 Subsequent requests for changes by the customer lead to the cancellation of agreed dates for the provision of the product or service by the provider.
5.4 The provider shall not be in default as long as he has not received a written warning; Section 286 para. 2 BGB does not apply.
5.5 If the customer sets the supplier a reasonable period of time for performance if the provider has already been in default, he shall be entitled to withdraw from the contract after the fruitless expiry of this grace period, provided that the provider has culpably missed the set period. The time limit must be at least four weeks.
5.6 Claims for damages against the provider due to delay are governed by clause 7.
6. Warranty
6.1 Any guarantee for the correctness of the data from databases, which may be included in the product/service, is excluded.
6.2 If products turn out to be defective at the time of the transfer of risk, the customer may demand supplementary performance. In this case, the supplier may, at his choice, remedy the defect or manufacture a new plant.
If the product is to be returned to the supplier for the purpose of subsequent performance, the customer shall meet the transport costs incurred for this purpose.
6.3 If the supplier is not willing or unable to rectify the defect/re-manufacture, in particular if this is delayed beyond reasonable deadlines for reasons for which the supplier is responsible, or if the rectification of defects/re-manufacture fails in any other way, the customer is entitled, at his discretion, within the scope of the statutory provisions, to withdraw from the contract or to reduce the remuneration and to demand compensation or compensation for futile expenses.
The right of the customer to do so in accordance with Section 634 No. 2, 637 BGB to rectigate the defect itself and to demand compensation for the necessary expenses is expressly excluded.
6.4 The limitation period for claims for defects, including claims for damages, is one year, calculated from the commencement of the statutory limitation period. This does not apply in the case of intent and gross negligence. The remaining clause 7.1 to 7.5 applies to the claim for damages.
7. Liability
7.1 The provider is liable without limitation for intent and gross negligence. For simple negligence, the provider is only liable and limited to the foreseeable damage typical of the contract, provided that an obligation is violated, the observance of which is of particular importance for the achievement of the purpose of the contract (cardinal obligation).
7.2 Liability for data loss is additionally limited to the typical recovery effort that would have occurred if backup copies had been made regularly and in a dangerous manner.
7.3 The provider shall only be liable for the cases of initial impossibility if it was aware of the impediment to performance or if the lack of knowledge is due to gross negligence.
7.4 The above limitations or exclusions do not apply to claims under the Product Liability Act and in the event of damage resulting from injury to life, body or health.
7.5 Insofar as the liability of the provider is excluded or limited, this also applies to the personal liability of the employees, employees and employees, representatives and vicarious agents of the provider.
7.6 With the exception of claims arising from tort, claims for damages by the customer, for which liability is limited in accordance with this clause, shall be time-barred in one year from the commencement of the statutory limitation period.
8. Obligation to investigate and reprimand
8.1 The customer must inspect the product immediately after delivery with regard to its absence from defect. Obvious defects must be reported in writing to the supplier without delay, at the latest within 16 working days after delivery of the product. The notification of defects must contain as detailed a description as possible of the defects.
8.2 Defects that cannot be ascertained in the context of the proper investigation described in clause 8.1 (hidden defects) must be complained to in writing without delay, at the latest within eight working days after their discovery, in compliance with the complaint requirements set out in clause 8.1.
8.3 In the event of a breach of the above obligation to investigate and/or complain, the product shall be deemed to have been approved in view of the defect in question.
9. Retention of title, premature lapse of the customer’s right of use
9.1 The Supplier reserves the ownership of the Product until full payment of all claims of the Provider arising from the business relationship with the Customer. In the case of payment by cheque or bill of exchange, the full payment in the aforementioned sense is only made upon their redemption.
The provider undertakes to release the securities to which he is entitled at the request of the customer to the extent that the realisable value of the securities exceeds the claims to be secured by more than 20. The provider is responsible for selecting the collateral to be released.
9.2 In the event of culpable conduct by the customer, in particular in the event of a delay in payment, the provider is entitled to withdraw from the contract and to withdraw the subject-matter of the contract and to claim damages for delay.
9.3 If the supplier asserts the retention of title, the customer’s right to use and use the product affected by this shall expire. All copies of the program made by the customer must be deleted by the customer immediately.
10. Subcontractors
The provider is permitted to transfer the product creation and/or the provision of the services as a whole or with regard to individual partial services to subcontractors.
11. Duty of confidentiality and custody
The customer undertakes to keep all information made available by the provider in the context of the contractual relationship with the provider, which is described as confidential or which is otherwise recognizable as the provider’s business or trade secrets, indefinitely and, unless absolutely necessary to achieve the contractual purpose, neither record nor pass it on or exploit it even after the termination of the contractual relationship. This obligation of confidentiality shall not apply to information made available to the public by third party publications without the customer’s intervention; for the existence of such an exception, the customer bears the burden of proof.
12. Final provisions
12.1 The law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the Sale of Goods, applies exclusively to the legal relationship between the provider and the customer.
12.2 Munich is agreed as the place of jurisdiction for all disputes arising from the business relationship. However, the provider reserves the right to choose another legally permissible place of jurisdiction.
12.3 Place of performance is the place of business of the provider in Munich.
12.4 Changes and additions are only effective in writing. The renunciation of this provision must also be in writing.
12.5 Should individual provisions of these General Terms and Conditions not be legally effective or lose their legal validity due to a subsequent circumstance, or if a gap is found in these General Terms and Conditions, this shall not affect the legal validity of the remaining provisions. Instead of the invalid provision or to fill the gap, an appropriate regulation should apply, which comes as close as possible to what the provider and the customer want
if they had considered this point.
Phase 4 GTC as of 08/2012