The following general terms and conditions (GTC) are part of all contracts of Dealcode GmbH ("Dealcode") with its customers (hereinafter referred to as "customer").
1. Conclusion of contract
Unless otherwise expressly regulated in the offer of Dealcode, a contract between Dealcode and the principal is concluded by the offer of Dealcode and receipt of the acceptance of the offer by the principal at Dealcode. Offer and acceptance are to be declared in text form (e.g. e-mail or letter).
2. Subject of the contract
2.1. The subject matter of the contract results from these General Terms and Conditions as well as the agreements listed in the offer and the relevant service descriptions.
2.2. General terms and conditions of the customer shall not become part of the contract, even if they are attached to requests for quotations, orders, declarations of acceptance or the like, even if they are not expressly contradicted.
3. Duties and tasks of the principal
3.1. To the extent necessary for the performance of the services owed by Dealcode, the Ordering Party will cooperate in the performance of the service, in particular by providing Dealcode with the information and materials required for the performance of the service in a timely manner and at its own expense. To the extent necessary for the performance of the service by Dealcode, the Customer hereby grants Dealcode a non-exclusive, non-transferable, sub-licensable right to the aforementioned information and materials, limited to the duration of the performance of the service, for the purpose of the performance of the service.
3.2. The client will appoint a contact person for Dealcode. However, Dealcode is responsible for the project.
3.3. The principal is responsible for creating the technical conditions in his sphere for the use of the services owed by Dealcode, in particular an adequate Internet connection.
3.4. If there is a malfunction of the Dealcode platform, which can be recognized by the principal, the principal informs Dealcode immediately.
4. Delivery and acceptance
4.1. The setup of the Dealcode platform and the transfer of the access data to the principal is done after agreement between Dealcode and the principal.
4.2. Dealcode Consulting Services
4.2.1 The delivery of the services of Dealcode Consulting Services takes place individually after arrangement.
4.2.2 As soon as individual divisible services have been completed, Dealcode will notify the Principal of this and hand over the completed services for inspection. The Client will then have ten (10) business days to inspect them, in particular the results (analysis evaluations, survey results, playbooks, etc.), and declare acceptance. If defects are discovered during the acceptance process, Dealcode will be given a reasonable period of time to remedy the defects. Thereupon, a new provision for acceptance takes place. The Customer then has another ten (10) working days to inspect the services and declare acceptance.
4.2.3 If the customer does not accept the services within one of the periods specified in section 4.2.2, although he is obliged to do so, section 640, paragraph 2 of the German Civil Code shall apply accordingly.
5. Rights of use and ownership
5.1 The software underlying the Dealcode platform is protected by copyright. The sole owner of all intellectual and industrial property rights of the Dealcode platform is Dealcode.
5.2 Dealcode grants the Ordering Party a simple, non-transferable, non-sublicensable right to use the products of the Dealcode platform, which the Ordering Party has selected within the scope of his contract, for the duration of the contract for the purpose apparent from the contract.
5.3 Furthermore, Dealcode grants the client, upon acceptance of the respective order, a simple, non-transferable, non-sublicensable, temporally and spatially unrestricted right to use all copyrightable works created for the client within the scope of the contract for the purpose apparent from the contract.
5.4 Unless otherwise agreed, the right of use granted does not include the right of processing by the client.
5.5 Unless otherwise agreed, all originals, templates and work results remain the property of Dealcode. Insofar as Dealcode hands over any data carriers, documents or other materials to the Principal for the purpose of performance of the service, Dealcode shall transfer ownership thereof to the Principal, subject to the above provision, upon acceptance of the services to which the data carriers, documents or other materials relate.
6. Terms of payment
6.1 General terms of payment
6.1.1 The amount of the remuneration owed and the period of any advance payments are set out in the respective offer.
6.1.2 All prices are exclusive of value added tax at the respective statutory rate.
6.1.3 Unless otherwise stated in the offer, costs of third-party providers, such as licensing costs for e.g. software or image rights, as well as other third-party costs incurred in the course of providing the services for Dealcode Consulting Services, will be passed on to the client at no extra charge.
6.1.4 All travel costs (e.g. for travel, overnight stays, room rent, meals and expenses) shall be invoiced separately insofar as they are incurred within the scope of the respective service offer and are reasonable.
6.1.5 Invoices are due for payment within ten working days of receipt.
6.2 Special terms of payment for Dealcode platform
The obligation of the Ordering Party to pay for the Dealcode Platform products selected by him begins with the transfer of the access data to the Ordering Party.
6.3 Special terms of payment for Dealcode Consulting Services
6.3.1 Should circumstances occur, for which Dealcode is not responsible, but which lead to the fact that the calculation basis of Dealcode ceases to exist or is disturbed in such a sustainable way that it is not reasonable for Dealcode to adhere to the contract, Dealcode is entitled to renegotiate the remuneration with the principal. However, this does not apply if the adjustment is again unreasonable for the principal. In such a case, Dealcode then has a right to terminate the contract for cause and the Principal has a right to a percentage refund of the remuneration for services not rendered.
6.3.2 In case of interruption or cancellation of a running order by the principal, without Dealcode being responsible for the interruption or cancellation, the principal will be charged the order value proportionally to the already used order volume, but at least 50%.
6.3.3 In addition, in the case of clause 6.3.2, a cancellation fee of EUR 1,000.00 is to be paid for the additional expenditure incurred. However, the customer is at liberty to prove that Dealcode has incurred less damage or none at all.
6.4 DelayIf the Client is in default of payment of the prices for two consecutive months or, in a period that extends over more than two months, in default of payment of the prices in an amount that reaches the monthly base price for two months, Dealcode may suspend the provision of services and/or terminate the contract without notice. The assertion of further claims due to default of payment remain unaffected.
7. Warranty
7.1 Dealcode platform
7.1.1 Dealcode is obliged to remedy defects in the products of the Dealcode platform selected by the Customer within a reasonable period of time.
7.1.2 A termination of the client according to § 543 BGB because of not granting the contractual use is only permissible if Dealcode has been given sufficient opportunity to remedy the defect and this has failed, provided that Dealcode has not fraudulently concealed the defect.
7.1.3 The client cannot reduce the monthly fee in case of possible defects of the Dealcode platform. However, any existing right to reclaim fees paid under reservation remains unaffected.
7.2 Dealcode Consulting Services
If the services provided by Dealcode within the scope of the provision of Dealcode Consulting Services are defective, and Dealcode is unable to provide subsequent performance by rectification of defects or defect-free renewal, Dealcode will, if necessary, show the Principal possible ways of avoiding defects. As far as these are reasonable for the customer, they are considered as supplementary performance.
7.3 Free services
Liability for material defects or defects of title is excluded in the case of free services In the event of fraudulent concealment of a defect, the rights of the client shall be governed exclusively by the statutory provisions.
8. Liability, indemnification and force majeure
8.1 Regardless of the legal ground of the claim of the principal (breach of contract, defect of quality or title, tort or other) Dealcode is liable for all resulting damages only in accordance with the following provisions:
8.1.1In case of intent, claims according to the product liability law or fraudulent concealment of a defect as well as in case of injury of life, body or health Dealcode is liable exclusively according to the legal regulations.
8.1.2 In case of gross negligence, the liability of Dealcode is limited to the compensation of the typical foreseeable damage. This limitation does not apply as far as the damage was caused by executive employees or legal representatives of Dealcode.
8.1.3 In case of slight negligence Dealcode is only liable, as far as Dealcode violates a contractual obligation, the fulfillment of which enables the proper execution of this contract in the first place, the violation of which endangers the achievement of the purpose of the contract and on the compliance of which the principal may regularly rely. In these cases, the liability of Dealcode is limited to typical and foreseeable damages.
8.1.4 Furthermore, the liability of Dealcode, as far as a liability is justified in cases of simple negligence, is limited to the simple order value of the contract, due to whose services the damage has occurred.
8.1.5 In case of strict liability for an impediment to performance occurring during the delay, Dealcode's liability is also limited to the typical foreseeable damage.
8.1.6 Dealcode is liable in case of a possible loss of data only as far as the damage would have occurred even with regular data backup by the principal.
8.1.7 As far as a liability of Dealcode is justified in case of slight negligence, Dealcode is not liable for lost profit.
8.1.8 The strict liability of Dealcode for damages (§ 536a BGB) for defects existing at the conclusion of the contract is excluded.
8.1.9 A claim for damages or reimbursement of futile expenses due to a material defect or defect of title is limited to intent and gross negligence in the case of free services. This limitation shall not apply in the event of fraudulent concealment of a defect, in the event of claims under the Product Liability Act or in the event of injury to life, limb or health.
8.1.10 If the principal does not carry out his cooperation acts owed according to the contract, Dealcode is not responsible for a restriction of the service provision, if and as far as the non-performance of the cooperation acts was causal for it and Dealcode is not contributory negligent, in particular Dealcode has previously unsuccessfully requested the principal to provide the cooperation acts by setting a reasonable deadline in text form.
8.2 Indemnification
The principal indemnifies Dealcode, all its affiliated companies as well as its subcontractors against all damages as well as claims of third parties, which Dealcode, its affiliated companies or its subcontractors incur due to or in connection with a breach of duty by the principal, in particular due to the provision or use of materials and works encumbered with rights of third parties, unless the principal is not responsible for this breach of duty
8.3 Circumstances beyond the control of Dealcode
8.3.1 As long as and insofar as Dealcode (i) waits for the cooperation or information of the Principal, which are necessary for the performance of services by Dealcode, or (ii) is hindered in its services by strikes or lockouts in third party companies or in the business of Dealcode (in the latter case, however, only if the industrial action is lawful), official intervention or legal prohibitions or by other circumstances for which Dealcode is not responsible (e.g. by the non-availability or only partial availability of interfaces of the connected CRM platforms) ("force majeure").If Dealcode is hindered in its services by the non-availability or only partial availability of interfaces of the connected CRM platforms ("Force Majeure"), agreed delivery and service periods shall be deemed extended by the duration of the hindrance and by a reasonable start-up time after the end of the cessation ("Downtime") and there shall be no breach of duty for the duration of the Downtime. Dealcode shall inform the Principal of such hindrances and their expected duration without delay. If the Force Majeure lasts uninterruptedly for more than three (3) months, both parties shall be released from their obligations to perform insofar as they are affected by the consequences of the Force Majeure; however, this shall not apply to the Ordering Party in the case of Clause 8.3.1 (i).
8.3.2 Insofar as force majeure can be remedied or circumvented by Dealcode through any changes to the service owed, Dealcode will immediately notify the Principal of the facts, the workaround and the additional effort involved. If the principal does not decide within a reasonable period of time to additionally remunerate the additional effort, only clause 8.3.1 applies.
9. Confidentiality
9.1 The parties are mutually obliged to maintain strictest secrecy about all facts and circumstances of the business activities of the respective other party which have become known to them in connection with the contract, even after termination of the contract.
9.2 The foregoing confidentiality obligation shall not apply to Confidential Information with respect to which the party receiving Confidential Information proves that (i) it was aware of the Confidential Information prior to disclosure by the disclosing party, (ii) the Confidential Information was lawfully disclosed to it by a third party not acting on behalf of the disclosing party, or (iii) the Confidential Information was independently developed by or for it, third party not acting on behalf of the disclosing party, (iii) the Confidential Information has been independently developed by or for it, (iv) the Confidential Information is publicly available, or (v) a legal or regulatory duty to disclose exists.
9.3 Dealcode is entitled to disclose Confidential Information to third parties, in particular companies associated with Dealcode in the sense of §§ 15 ff. AktG, insofar as this is necessary for the provision of the services owed under the contract, provided that the disclosing party has previously obligated the third party in writing to observe confidentiality in accordance with the provisions of this contract.
9.4 Notwithstanding the confidentiality obligation under clause 9.1, both parties shall be entitled to use the name and logo of the other party as an official reference for self-promotion purposes, but without disclosing details of the cooperation.
10. Data protection
10.1 Dealcode does not acquire any rights to the data stored by the Principal in the context of the use of the services provided by Dealcode or provided to Dealcode (in particular personal data of third parties).
10.2 In case of processing of personal data Dealcode will collect, process and use personal data exclusively within the framework of the concluded contract and according to the instructions of the principal. For this purpose, the provisions of a contract data processing to be concluded shall apply with priority.
10.3 In the case of commissioned data processing, the client is responsible for compliance with the regulations of the Federal Data Protection Act (BDSG) with regard to personal data. Furthermore, the client remains the "master of the data" in terms of both contractual law and data protection law.
11. Contract period and termination
11.1 The contract period results from the respective offer. If a minimum contract period has been agreed, ordinary termination during this period is excluded. The right to extraordinary termination remains unaffected.
11.2 After the end of the agreed minimum contract period, the contract is always automatically extended by a further twelve (12) months, unless it is terminated beforehand with three (3) months' notice to the end of the then relevant term.
11.3 Notice of termination, for whatever legal reason, may only be given by letter or e-mail.
12. Other conditions
12.1 The contract can only be changed by a mutual written agreement (e-mail is sufficient). This also applies to the amendment of this requirement of written form.
12.2 The principal is not entitled to transfer the contract or individual rights and obligations from it to a third party without written consent of Dealcode. § 354a HGB remains unaffected.
12.3 Offsetting with claims other than those that are undisputed or have been established as final and absolute as well as the exercise of a right of retention that is not based on a right from the same contractual relationship is not permitted.
12.4 The contractual relations of the contracting parties shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 1980 (UN Sales Convention).
12.5 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be the Regional Court of Hamburg.
12.6 If a court finds any provision of the Agreement to be unlawful, void or unenforceable, the remainder of the document shall not be affected thereby.Instead of unlawful, ineffective or unenforceable contractual provisions and in order to fill gaps, an appropriate provision shall be made which comes as close as possible to what the contracting parties would have wanted at the time of the conclusion of the contract if they had considered this point
