Terms and Conditions

General Terms and Conditions (“GTC”)

for plentymarkets as SaaS (Software as a Service) and licence agreement

plentysystems AG
Bürgermeister-Brunner-Str. 15
D-34117 Kassel

(referred to hereinafter as “Provider”)


Recitals

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

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

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

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

§ 1 Contract subject

(1) The subject of this contract is the provision of the “plentymarkets” software and of storage space for storing the data generated thereby against payment of the agreed fee. The scope of the services to be provided in terms of software and storage space shall be specified in the service order from Customer as accepted by Provider. 

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

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

(4) If Provider renders additional services which are not essential to the core function of the software, these services can be terminated at any time. This shall not give Customer the right to reduce the agreed fee or claim damages nor shall Customer be entitled to terminate the contract on such grounds. 

§ 2 Contract conclusion, contract changes

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

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

(2) Customer can change the selected features and modules in its user account during the term of the contract. This may involve a change of the agreed fee. The new fee will be shown to Customer before Customer confirms the adjustment/change of the contract by mouse click. 

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

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

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

Provider uses the services of third parties for the provision of the aforesaid computers. The details are specified in the Data Processing Agreement. Provider may adjust the server configuration to the state of the art and offer different service categories according to the current price list. 

(2) Provider warrants that “plentymarkets”

  • is suitable for processing e-commerce sales transactions,
  • is free from defects during the entire contract term,
  • is free from viruses and similar malware which might render “plentymarkets” unfit for the contractually agreed use.

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

(4) Provider ensures that “plentymarkets” complies with proven state-of-the-art standards. 

If and to the extent that the provision of a new or adjusted version involves an essential change of the contractually agreed functionalities and/or restrictions of the usability of the previously generated data, Provider shall notify Customer of the forthcoming change by notice in text form (“Textform” according to § 126b BGB – German Civil Code) before the intended effective date. Customer has the possibility to object to the change. In this case, the procedure described in § 20 of these GTC shall apply. 

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

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

Provider shall store the application data generated and created by Customer for a maximum period of 3 years. After expiry of that period, all data will be deleted irrevocably even if the contract continues in force. 

Customer shall be responsible for compliance with the retention periods prescribed by commercial law and tax law. Customer itself shall ensure additional independent data backup in due time, regardless of the backups made by Provider.

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

(8) As to the system prerequisites required on the part of Customer, a common state-of-the-art PC with an Internet browser (only Firefox, Safari, Google Chrome) and common software equipment is usually sufficient. In the case of changes to the technical system of Provider, the objection procedure under § 20 of these GTC shall apply accordingly. Provider shall not be responsible or liable for the condition of the hardware and software required on the part of Customer nor for the telecommunication connection between Customer and Provider to the point of delivery. 

(9) After contract termination all generated data shall be retained for one month. Provider will not store the data beyond that time. Customer shall however be given the possibility to save the data upon contract termination. Provider may render support or assistance in the data saving for a fee. Ongoing data storage and backup shall be the responsibility of Customer.

§ 4 Access software

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

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

§ 5 Use of the software on Customer’s hardware

(1) These GTC shall also apply to the temporary use of the application on hardware provided by Customer. The software shall only be installed on Customer’s hardware if this was explicitly agreed between the parties by way of exception. 

(2) The right to temporary use of the software on Customer’s hardware systems is subject to the mandatory conclusion of a support agreement. 

(3) In this case, Provider shall not be obliged to provide hardware-related services. In particular, Provider shall not be liable for errors and defects which are due to the provision of defective hardware by Customer and/or non-compliance by Customer with the hardware requirements and recommendations given by Provider. 

§ 6 Technical availability of “plentymarkets”, response and recovery times, access to application data

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

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

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

Operation-preventing defect:

Response: 24 hours / Recovery: 48 hours

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

Operation-restraining defect:

Response: 48 hours / Recovery: 5 working days (“Werktage”)

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

Other defects:

Response: 3 working days / Recovery: 12 working days (“Werktage”)

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

(3) Defects of “plentymarkets”:

A defect of “plentymarkets” shall be deemed given if (a) “plentymarkets”, when used properly as contractually agreed, does not provide the functionalities defined in the software product/performance specifications or (b) “plentymarkets” is not suitable for the purpose of use intended under the contract or (c) “plentymarkets” is not suitable for common use and does not show the quality which is usually available with applications of the same kind and which Customer is reasonably allowed to expect with that kind of software.

The following shall not be deemed to constitute a defect in terms hereof (the following list is however not conclusive):

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

(4) Customer is aware that Provider procures parts of the services it offers from third parties and provides them to Customer with the help of these third parties. Where the services to be provided under the service order are marked as services which Provider renders as a reseller in the aforesaid sense, the recovery period shall be extended by 2 additional working days (“Werktage”)

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

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

Provider shall be deemed to have fulfilled its defect remedy obligation if and as soon as the defect as defined in subs. 3 does no longer exist. 

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

(7) Customer already upon contract conclusion authorises Provider to access the application data for verifying error reports and correcting errors/debugging. Provider shall only access the data to the extent this is necessary for error verification and correction/debugging. § 13 and § 14 of these GTC are thus extended by the present clause. 

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

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

(2) If Provider is in default with the ready-for-service provision of “plentymarkets”, Provider shall be liable according to § 17. Customer shall be entitled to terminate the contract and/or withdraw from the contract if Provider fails to properly perform within a two-week grace period granted by Customer, i.e. if Provider fails to provide full functionality of “plentymarkets” as contractually agreed within the said grace period. 

(3) If, after ready-for-service provision of “plentymarkets”, Provider fails to comply with the agreed obligations or parts thereof, the monthly usage flat rate under § 12 subs. 2 shall be reduced pro rata temporis, i.e. for the time during which “plentymarkets” and/or the application data and/or the storage space were not available for Customer to the contractually agreed extent. Ongoing usage fees according to § 12 subs. 3 and 4 shall only accrue for transactions which were actually carried out by use of “plentymarkets” despite the restriction or non-availability of the agreed services. If the non-fulfilment of obligations is attributable to Provider (“zu vertreten haben”), Customer shall in addition be entitled to claim damages according to § 16. 

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

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

§ 8 Additional services of Provider

(1) Provider, at Customer’s request to be filed in text form (“Textform” according to § 126b BGB – German Civil Code), shall provide Customer with a complete copy of all application data for retrieval/download at the end of the agreed period of time. The fee due for that service according to the respective current price list shall be deemed agreed between the parties and shall be paid by Customer before the provision of the data. 

(2) Provider, together with the provision of “plentymarkets”, makes an integrated user help function available to Customer. Customer accepts this user help function as user manual. 

Any updating of “plentymarkets” shall involve updating of the user help function, too. 

Customer is entitled to store and print the provided documentation and make a reasonable number of copies thereof for the purpose of this contract, thereby maintaining any existing  copyright notices. In all other respects, the restrictions of the use of “plentymarkets” set out in § 10 shall apply to the documentation accordingly.  

(3) The parties may at any time agree in writing on the provision of additional services by Provider, including but not limited to training courses on how to handle “plentymarkets”. Any such additional services will be rendered at Provider’s general rates valid at the time of commissioning, subject to proof of the time and material expended. 

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

(5) Customer, already when commissioning additional services, shall authorise Provider to access the application data for performing the additional services. Provider shall only access the data to the extent this is necessary for the performance of the additional services. § 13 and § 14 of these GTC are thus extended by the present clause.

§ 9 Support services, classification of error reports

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

(2) Provider provides a moderated forum as a primary support platform. Provider can render further support services by phone. If and to the extent these services are not part of an error correction/debugging process for which Provider is responsible, they will be charged separately according to the respective current price list.

(3) The parties are aware that it is not always possible in practice to distinguish on the spot between general user support, single occurrence error and software. Customer therefore accepts that Provider carries out error prioritisation based on customer reports and feedback. Based on customer reports and feedback, Provider ascertains how wide the error/problem is spread and determines the form in which it occurs. Provider is free to use other tools instead of the support forum for the said analysis.

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

Rights to which Provider is entitled if the rights of use are exceeded:

(1) Rights to use “plentymarkets"

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

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

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

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

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

(2) Customer’s obligations to ensure secure use

(a) Customer shall take any precautionary measures required to prevent any unauthorised use of “plentymarkets”.

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

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

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

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

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

(c) In every single case where Customer intentionally or negligently enables the use of “plentymarkets” by third parties, Customer shall be liable to pay an immediately due contractual penalty amounting to six times the monthly flat rate under § 12 subs. 2. In addition, Provider reserves the right to claim damages in which case the contractual penalty shall be set off against the claim for damages.

(d) If the breach is attributable to Customer (“zu vertreten haben”), Provider shall be entitled to claim damages under § 17 of these GTC.

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

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

§ 11 Liability for third-party rights

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

(2) Customer shall not be liable to pay compensation to Provider if and to the extent that the use of “plentymarkets” is impaired by third-party rights.

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

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

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

(5) In addition, Customer shall be entitled to claim damages under § 17 of these GTC.

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

§ 12 Compensation

(1) The fees payable for the services provided, namely the grant of use of “plentymarkets” and the provision of storage space including data-backups are stated in the respective current price list of Provider. Additional services, if agreed, shall be charged separately according to the respective current price list. The respective current price list is available on Provider’s website.

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

(2) The monthly flat rates payable under the applicable price model and price list shall be invoiced and charged every month in advance. The monthly flat rate is due for the first time upon provision of the software.

Costs to be invoiced according to usage and turnover shall be invoiced on a monthly basis no later than the 15th of the subsequent month, together with a specification of the respective usage volumes. Provider may also offer prepayment options such that the costs are invoiced according to the price list. 

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

(3) Provider shall be entitled to reasonably increase the agreed prices for the services provided under the contract to make up for increases in personnel costs or other costs or for improvements resulting from the further development of the software. Provider shall notify Customer in writing or by email of the intended price increase and shall publish the new prices in an adjusted list price on its website; the price increases shall not apply for periods Customer has already paid for. If the price is increased by more than 8 % of the previous price, Customer shall be entitled to terminate the contract as a whole by 6 weeks’ notice, effective as of the end of a half-year; if Customer exercises the right of termination, the previous non-increased prices shall be charged for the time until the termination takes effect. 

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

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

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

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

1. keep the user and access authorisations assigned to Customer and/or the users as well as any agreed identification and authentication codes secret, protect them against third-party access and not disclose them to unauthorised users. These data must be protected by common appropriate measures. Customer shall notify Provider without undue delay (“unverzüglich”) if any suspicion should arise that the access data and/or passwords or codes might have become known to unauthorised persons;

2. create the agreed access conditions;

3. comply with the restrictions/obligations relating to the rights of use according to § 10, in particular Customer

a. shall not retrieve, or cause third parties to retrieve, information or data or interfere, or cause third parties to interfere, with programs operated by Provider without appropriate authorisation or undertake unauthorised hacking or intrusion into data networks of Provider or aid any such intrusion;

b. shall not abuse the possibility to exchange electronic messages for the purposes of the contractual relationship and/or by means of “plentymarkets” for       disseminating unsolicited messages and information to third parties for advertising purposes;

c. shall indemnify Provider, and hold Provider harmless, from third-party claims which are based on the unlawful use of “plentymarkets” by Customer or which arise from data protection disputes or copyright disputes or other legal disputes caused by Customer and which are related to the use of “plentymarkets”;

d. shall commit the authorised users to also comply with those provisions of this contract which apply to them; 

e. shall design its web pages and the use of the system such that server overload by scripts or programs that require high computing capacity or use an above-  average amount of random-access memory is prevented;

4. shall ensure (e.g. when transmitting third-party texts/data to the server of Provider) that all third-party rights in the material used by Customer are respected;

5. shall obtain the required consent from the respective data subject according to § 14 subs. 2 in all cases where Customer, while using “plentymarkets”, collects, processes or uses personal data and such collection, processing or use is not     explicitly permitted by law;

6. shall check any data and information for viruses before they are transmitted to Provider and use appropriate state-of-the-art antivirus software;

7. shall give notice of defects of the services provided under the contract, in particular of defects of the services under § 3 to § 6 and § 9 to § 10, to Provider without undue delay (“unverzüglich”). If Customer fails to give timely notice of defects for reasons attributable to Customer (“zu vertreten haben”), this shall be considered as contributory causation and/or contributory fault on the part of Customer. If Provider is unable to take remedial measures due to the missing or late notice of defect, Customer shall not be entitled to withhold or reduce the flat rate under § 12 subs. 2 of these GTC or claim compensation of the damage caused by the defect or terminate the contract for cause without observing a notice period (extraordinary termination). Customer shall bear the burden to prove that the failure to give notice of defect is not attributable to Customer (“nicht zu vertreten haben”).

8. shall ensure timely payment of the fees stipulated in § 12;

9. - when transmitting data to Provider for generating application data by means of “plentymarkets” - shall ensure regular data backup according to the importance of the data and shall also make backup copies of its own to enable recovery of data and information in the case of loss; 

10. - if and insofar as the parties mutually agree that Customer shall be provided with the required technical facilities - shall regularly save the application data stored on the server by download; this shall be without prejudice to Provider’s obligation to ensure data backup.

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

§ 14 Data security, data protection

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

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

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

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

(5) The obligations under subs. 1 to 3 shall apply as long as any application data are within Provider’s sphere of control, even after contract termination. The obligation under subs. 6 shall apply beyond contract termination for an unlimited period of time.

§ 15 Confidentiality

(1) The parties shall maintain secrecy of all confidential information to which they become privy in the context of their contractual relationship and they shall only disclose such information to third parties with the prior written consent of the respective other party, for whatever purpose. Confidential information shall include any information which is explicitly designated as confidential by the providing party as well as any information which must be considered as confidential by the circumstances of their disclosure. Confidential information within the meaning hereof shall in particular include but shall not be limited to application data if Provider should become privy to them.  

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

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

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

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

§ 16 Insolvency or threatening insolvency of either party

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

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

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

§ 17 Liability, limitation of liability and contractual penalty

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

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

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

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

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

§ 18 Contract term, termination

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

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

(2) Provider shall be entitled to terminate the contract without observing a notice period if Customer is in default with the payment of the fees, or more than an insignificant partial amount of the fees, invoiced for two consecutive months or if Customer, over a period of more than two months, is in default with the payment of an amount equal to the fees payable for two months. In this case, Provider shall be entitled to claim      additional liquidated damages due for immediate one-off payment amounting to 70 percent of the remaining fees falling due until the expiry of the regular contract term, based on the     average of the previously invoiced monthly fees. Customer shall however have the right to prove that Provider incurred no damage at all or considerably less damage than the aforesaid amount. 

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

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

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

§ 19 Obligations of the parties upon and after contract termination

Provider shall at Customer’s request make all data stored by Customer available to Customer by remote data transfer or for download. Customer, in return, shall pay to Provider the fees stated in the price list. 

§ 20 Changes to the GTC and the performance specifications

(1) These General Terms and Conditions and the performance specifications can be changed by appropriate agreement between Customer and Provider. 

(2) Provider shall notify Customer of any intended change of the GTC or the performance specifications and submit a change proposal to Customer. If Customer fails to object to the change proposal in writing within a period of six weeks from receipt (“Zugang”) of the proposal, the proposal shall be deemed accepted. In this case, the change shall take effect six weeks after receipt (“Zugang”) of the proposal. If Customer however objects to the proposal according to the preceding sentence 2, the contract shall continue in force unchanged under the previous conditions. Provider shall specifically point out to Customer together with the change proposal the legal consequences of Customer’s failure to file an objection which must be lodged at least in text form (“Textform” according to § 126b BGB – German Civil Code).

(3) If Customer objects to the change proposal and Provider subsequently notifies Customer that the continuation of the contract without the requested change is unreasonable for Provider for technical or economic reasons, Customer shall be entitled to terminate the contract in writing within one month from receipt (“Zugang”) of the notification. The changed GTC and changed services shall be deemed accepted if Customer does not exercise the right of termination. Provider shall point out to Customer in the notification regarding the unreasonableness of contract continuation the legal consequence of Customer’s failure to give written notice of termination. 

§ 21 Force majeure

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

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

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

§ 22 Applicable law, final provisions, place of jurisdiction

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

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

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

(3) There are no side agreements between the parties other than those contained in this contract and the annexes thereto. Changes and amendments to this contract and the annexes thereto must be in writing (“Schriftform” according to § 126 BGB – German Civil Code) to be valid. This shall also apply to the change or waiver of the requirement of writing.

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

(5) If unintended gaps should become apparent in the practical implementation of this contract or if a provision is found to be invalid by a final non-appealable court decision (res judicata) or if the parties mutually agree that a provision is invalid      according to subs. 4, the parties shall be obliged to fill the gap or replace the invalid provision by a reasonable provision that reasonably corresponds to the intended economic purpose of the contract. 

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