GTC
1. Validity, Conclusion of Contract
1.1 Isabella Kießlich (hereinafter referred to as 'Peel & Pulp Digital' or 'Agency') provides her services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between Peel & Pulp Digital and the Client, even if no express reference is made to them. The GTC are exclusively applicable to legal relations with entrepreneurs, thus B2B. Customer declares to be an entrepreneur in the sense of the KSchG and is liable to Peel & Pulp Digital with this declaration.
1.2 The version valid at the time of the conclusion of the contract is decisive. Deviations from these as well as other supplementary agreements with Customer shall only be effective if confirmed in writing by Peel & Pulp Digital.
1.3 Any terms and conditions of Customer shall not be accepted, even if known, unless expressly agreed otherwise in writing in individual cases. Peel & Pulp Digital expressly objects to any terms and conditions of the customer. Peel & Pulp Digital does not require any further objection to the customer's GTC.
1.4 Amendments to the GTC shall be notified to Customer and shall be deemed to be agreed if Customer does not object to the amended GTC in writing within 14 days; the significance of the silence as well as the concrete amended clauses shall be expressly pointed out to Customer in the notification. This fiction of consent shall not apply to the amendment of essential service contents and charges.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The contractual partners shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.
1.6 All orders and agreements shall only be legally binding if they are signed by Peel & Pulp Digital in writing and in accordance with the company's specifications and shall only be binding to the extent stated in the order confirmation. Customer's terms and conditions of purchase are hereby excluded for the present legal transaction and the entire business relationship.
1.7 Peel & Pulp Digital's offers are subject to change and non-binding.
2. social media channels
Before placing an order, Peel & Pulp Digital expressly points out to the customer that the providers of "social media channels" (e.g. Facebook, hereinafter referred to as providers) reserve the right in their terms of use to reject or remove advertisements and appearances for any reason. Accordingly, the providers are not obligated to forward content and information to the users. There is therefore a risk, which cannot be calculated by Peel & Pulp Digital, that advertisements and appearances will be removed for no reason. In the event of a complaint from another user, the providers will allow the possibility of a counterstatement, but even in this case the content will be removed immediately. In this case, the recovery of the original, lawful state may take some time. Peel & Pulp Digital works on the basis of these terms of use of the providers, over which it has no influence, and also bases the order of the customer on them. By placing an order, the Customer expressly acknowledges that these Terms of Use (co-)determine the rights and obligations of any contractual relationship. Peel & Pulp Digital intends to execute the order of the customer to the best of its knowledge and to comply with the guidelines of "social media channels". However, due to the currently valid terms of use and the simple possibility of each user to claim infringements and thus achieve a removal of the content, Peel & Pulp Digital cannot guarantee that the commissioned campaign is also retrievable at all times.
3. Concept and idea protection
If the potential client has already invited Peel & Pulp Digital in advance to create a concept and if Peel & Pulp Digital complies with this invitation before the conclusion of the main contract, the following provision shall apply:
3.1 Already by the invitation and the acceptance of the invitation by Peel & Pulp Digital, the potential client and Peel & Pulp Digital enter into a contractual relationship ("Pitching Contract"). This contract is also based on the GTC.
3.2 The potential client acknowledges that Peel & Pulp Digital already provides cost-intensive preliminary services with the concept development, although it has not yet assumed any service obligations itself.
3.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as these reach the level of a work. The potential customer is not permitted to use and edit these parts without the consent of Peel & Pulp Digital on the basis of copyright law alone.
3.4 The concept also contains ideas relevant to advertising, which do not reach the level of a work and therefore do not enjoy the protection of copyright law. These ideas are at the beginning of every creative process and can be defined as the igniting spark of everything that is later produced and thus as the origin of marketing strategy. Therefore, those elements of the concept are protected which are peculiar and give the marketing strategy its characteristic imprint. In particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc. are considered to be ideas within the meaning of this agreement, even if they do not reach the level of a work.
3.5 The potential customer undertakes to refrain from commercially exploiting or having exploited or using or having used these creative advertising ideas presented by Peel & Pulp Digital within the framework of the concept outside the corrective of a main contract to be concluded later.
3.6 If the potential customer is of the opinion that ideas were presented to him by Peel & Pulp Digital which he had already come up with prior to the presentation, he shall notify Peel & Pulp Digital thereof within 14 days after the day of the presentation by e-mail, citing evidence which allows a temporal allocation.
3.7 In the contrary case, the contracting parties shall assume that Peel & Pulp Digital has presented the potential customer with an idea that is new to him. If the idea is used by the customer, it shall be assumed that Peel & Pulp Digital became meritorious in doing so.
3.8 The potential customer may release himself from his obligations under this point by paying a reasonable compensation plus 20% VAT. The release shall only come into effect after Peel & Pulp Digital has received payment of the compensation in full.
4. Scope of Services, Order Processing and Customer's Obligation to Cooperate
4.1 The scope of the services to be rendered results from the service description in the agency agreement or any order confirmation by Peel & Pulp Digital, as well as any briefing protocol ("Offer Documents"). Subsequent changes to the content of the services shall require written confirmation by Peel & Pulp Digital. Peel & Pulp Digital shall have the freedom of design in the fulfillment of the order within the framework given by Customer.
4.2 All services of Peel & Pulp Digital (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, color prints and electronic files) shall be reviewed by Customer and approved by Customer within three working days from receipt by Customer. After expiry of this period without feedback from Customer, they shall be deemed approved by Customer.
4.3 Customer shall make available to Peel & Pulp Digital in a timely manner and in full all information, documents and tools necessary for the performance of the service and elaboration of individual programs. He shall inform Peel & Pulp Digital of all circumstances which are of importance for the execution of the order, even if they only become known during the execution of the order. This shall also include practical test data as well as test facilities to a sufficient extent, which the customer shall make available in a timely manner, during normal working hours and at its own expense. If the customer is already working in live operation on the system provided for testing, the responsibility for securing the live data shall lie with the customer. Customer shall bear the expenses incurred by the fact that work has to be repeated or is delayed as a result of its incorrect, incomplete or subsequently changed data provided by Peel & Pulp Digital.
4.4 The basis for the creation of individual programs shall be the written performance specification which Peel & Pulp Digital shall prepare or provide to Customer against calculation of costs on the basis of the documents and information provided. This service description has to be checked by the customer for correctness and completeness and has to be marked with his approval. Change requests occurring at a later date may lead to separate agreements on dates and prices.
4.5 Individually created software or program adaptations require a program acceptance by the customer for the respective program package at the latest four weeks after delivery. This shall be confirmed by the customer in a protocol. (Check for correctness and completeness on the basis of the service description accepted by Peel & Pulp Digital by means of the test data provided under item 4.3). If Customer allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed accepted as of the end date of the said period. If the customer uses the software in live operation, the software shall be deemed accepted in any case.
Any defects that may occur, i.e. deviations from the performance description agreed upon in writing, shall be reported by Customer to Peel & Pulp Digital in a sufficiently documented manner. Peel & Pulp Digital shall endeavor to remedy defects as quickly as possible. If there are significant defects reported in writing, i.e. real operation cannot be started or continued, a new acceptance is required after the defects have been corrected.
The Customer shall not be entitled to refuse acceptance of software due to immaterial defects.
4.6 When ordering library (standard) programs, the customer confirms with the order that he is aware of the scope of services of the ordered programs.
4.7 Any shipment of program carriers, documentation and service descriptions shall be at the expense and risk of the Customer. Additional training and explanations requested by the customer will be invoiced separately. Insurance shall only be provided at the request of the customer.
4.8 We expressly point out that a "barrier-free design (of websites) in the sense of the Federal Act on the Equalization of Persons with Disabilities (Federal Act on the Equalization of Persons with Disabilities - BGStG)" is not included in the offer, unless this was requested separately/individually by the customer. If the barrier-free design has not been agreed upon, the customer shall be responsible for reviewing the service for its admissibility with regard to the Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz - BGStG).
4.9 Furthermore, Customer shall be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third party rights and can therefore be used for the intended purpose. Peel & Pulp Digital shall not be liable in case of mere slight negligence or after fulfillment of its duty to warn - at least in the internal relationship to the Customer - due to an infringement of such third party rights by provided Documents. If Peel & Pulp Digital is held liable by a third party due to such an infringement, Customer shall indemnify and hold Peel & Pulp Digital harmless; Customer shall compensate Peel & Pulp Digital for all disadvantages incurred by Peel & Pulp Digital due to a third party claim, in particular the costs of an adequate legal representation. Customer agrees to assist Peel & Pulp Digital in defending itself against any third party claims. Customer shall provide Peel & Pulp Digital with all documents for this purpose without being requested to do so.
4.10 Unless otherwise agreed, the performance of the contractual services by Peel & Pulp Digital shall be carried out at its choice at the location of the computer system or at the business premises of Peel & Pulp Digital within the normal working hours of Peel & Pulp Digital. If, by way of exception and at the request of the customer, a service is provided outside normal working hours, the additional costs shall be invoiced separately. Peel & Pulp Digital shall be responsible for the selection of the employee performing the contractual services and shall be entitled to call in third parties for this purpose.
4.11 Peel & Pulp Digital undertakes to perform the Software programs which are the subject matter of the contract in accordance with the scope of services of the respective following contractually agreed support class:
a) Information Service: Customer will be informed about new program versions, available updates, program developments, etc.
b) Hotline Service: Peel & Pulp Digital will be available to Customer within the agreed hotline hours of Peel & Pulp Digital for consultation in case of problems arising from time to time in connection with the use of the Software programs which are the subject matter of the contract. Peel & Pulp Digital is entitled, in case of repeated use of this consulting service for similar problems, to make further consulting services under the subject matter of the contract dependent on additional training measures which are outside the scope of this contract and which are subject to a charge.
c) Archiving and provision of the software programs which are the subject matter of the contract: Peel & Pulp Digital undertakes to archive the software programs developed by it and subject to the contract in computer-readable form as well as the documentation to an extent necessary for the fulfillment of the obligations under this contract and, if necessary, to make them available to Customer in accordance with the provisions of the contract underlying the acquisition.
4.12 A defect to be dealt with shall be deemed to exist if the Software program which is the subject matter of the contract in each case exhibits a behavior which deviates from the corresponding performance description/documentation in the latest valid version and if this behavior can be reproduced by Customer.
Notices of defects shall be addressed to Peel & Pulp Digital in writing. For the purpose of precise investigation of any errors which may occur, Customer shall be obliged to make available and support Peel & Pulp Digital free of charge the computer system used by it (in case of systems in online connection with other computers also the corresponding connection), software programs, protocols, diagnostic documents and data to a reasonable extent for testing purposes during normal working hours. Detected errors for which Peel & Pulp Digital is responsible shall be resolved by Peel & Pulp Digital within a reasonable period of time:
Peel & Pulp Digital shall be exempt from this obligation if defects lying in the customer's area prevent this and are not remedied by the customer.
A solution to the fault shall be provided by a software update or by appropriate alternative solutions.
5. External Services / Commissioning of Third Parties
5.1 Peel & Pulp Digital shall be entitled at its own discretion to perform the service itself, to use competent third parties as vicarious agents for the performance of contractual services and/or to substitute such services ("Third Party Services").
5.2 The commissioning of third parties within the scope of an External Service shall be made either in its own name or in the name of Customer, the latter after prior information to Customer. Peel & Pulp Digital shall carefully select such third party and ensure that it has the required professional qualifications.
5.3 Customer shall enter into obligations towards third parties named to Customer which extend beyond the term of the contract. This shall expressly also apply in the event of termination of the agency agreement for good cause.
6. Deadlines
6.1 Unless expressly agreed as binding, stated delivery or service deadlines shall only be considered approximate and non-binding. Binding agreements on dates shall be recorded in writing or confirmed in writing by Peel & Pulp Digital. Peel & Pulp Digital shall endeavor to meet the agreed dates of performance (completion) as closely as possible.
6.2 The targeted completion dates can only be met if Customer provides all necessary work and documents in full, in particular the service description accepted by Customer according to clause 4.4, and fulfills its obligation to cooperate to the required extent by the dates specified by Peel & Pulp Digital.
Peel & Pulp Digital shall not be responsible for delays in delivery and increases in costs resulting from incorrect, incomplete or subsequently changed data and information or documents provided and such delays shall not result in default by Peel & Pulp Digital. Any additional costs resulting therefrom shall be borne by Customer.
6.3 If the delivery/service is delayed by Peel & Pulp Digital for reasons beyond its control, such as events of force majeure and other unforeseeable events which cannot be averted by reasonable means, the obligations to perform shall be suspended for the duration and to the extent of the impediment and the deadlines shall be extended accordingly. If such delays last more than two months, Customer and Peel & Pulp Digital shall be entitled to withdraw from the contract.
6.4 If Peel & Pulp Digital is in default, Customer may withdraw from the contract only after having granted Peel & Pulp Digital a reasonable grace period of at least 14 days in writing and such grace period has expired fruitlessly. Customer's claims for damages due to non-performance or delay are excluded, except in case of evidence of intent or gross negligence.
6.5 In the case of orders comprising several units or programs, Peel & Pulp Digital shall be entitled to make partial deliveries or to issue partial invoices.
7. Premature dissolution
7.1 Peel & Pulp Digital shall be entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if
a) the performance of the service becomes impossible for reasons for which the Customer is responsible or is further delayed despite a grace period of 14 days being set;
b) in the course of the work it turns out that the execution of the order according to the service description is actually or legally impossible. Peel & Pulp Digital is obliged to inform the customer of this immediately. If the customer does not change the service description to such an extent or does not create the prerequisite that execution becomes possible, Peel & Pulp Digital may refuse execution. If the impossibility of execution is the result of a failure on the part of the customer or a subsequent change of the service description by the customer, Peel & Pulp Digital shall be entitled to withdraw from the order. The costs incurred by Peel & Pulp Digital up to that point and expenses as well as any dismantling costs shall be reimbursed by the customer.
c) the customer continuously, despite a written warning with a grace period of 14 days, violates essential obligations from this contract, such as payment of a due amount or obligations to cooperate.
d) there are justified doubts regarding the creditworthiness of Customer and Customer does not make advance payments upon Peel & Pulp Digital's request or does not provide suitable security prior to Peel & Pulp Digital's performance;
7.2 Customer shall be entitled to terminate the contract for good cause without granting a grace period. An important reason shall be deemed to exist in particular if Peel & Pulp Digital continues to violate essential provisions of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the violation of the contract.
7.3 Cancellations by Customer shall only be possible with the written consent of Peel & Pulp Digital. If Peel & Pulp Digital agrees to a cancellation, Peel & Pulp Digital shall have the right to charge a cancellation fee in the amount of 30% of the unbilled order value of the total project in addition to the services rendered and costs incurred.
8. Fee
8.1 Unless otherwise agreed, Peel & Pulp Digital shall be entitled to a fee for each individual service as soon as it has been rendered. Peel & Pulp Digital is entitled to demand advance payments to cover its expenses. From an order volume with an (annual) budget of € 1,000, or those extending over a longer period of time or comprising several units, Peel & Pulp Digital shall be entitled to issue interim or advance invoices or to call for payments on account.
8.2 The fee shall be understood as net fee plus VAT at the statutory rate. In the absence of an agreement in individual cases Peel & Pulp Digital shall be entitled to a fee in the amount customary in the market for the Services rendered and the transfer of the rights of use under copyright and trademark law.
8.3 All services rendered by Peel & Pulp Digital which are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by Peel & Pulp Digital shall be reimbursed by Customer.
8.4 For services which can be rendered at the business premises of Peel & Pulp Digital, but which are exceptionally rendered at the customer's premises upon the customer's request, the customer shall bear the costs for travel, accommodation and travel time for the persons of Peel & Pulp Digital entrusted with the performance of the service.
8.5 Cost estimates of Peel & Pulp Digital are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by Peel & Pulp Digital by more than 15%, Peel & Pulp Digital shall inform Customer of the higher costs. The cost overrun shall be deemed to have been approved by Customer if Customer does not object in writing within three business days after such notice and at the same time discloses less expensive alternatives. If the cost overrun is up to 15%, a separate notification is not required. This cost estimate overrun shall be deemed approved by the customer from the outset.
8.6 If Customer unilaterally changes or discontinues work commissioned without the involvement of Peel & Pulp Digital - without prejudice to the ongoing other support provided by Peel & Pulp Digital - Customer shall compensate Peel & Pulp Digital for the services rendered up to that point in accordance with the fee agreement and reimburse all costs incurred. Unless the termination is due to a grossly negligent or intentional breach of duty on the part of Peel & Pulp Digital, Customer shall furthermore reimburse Peel & Pulp Digital for the entire fee agreed upon for this order (commission), whereby the credit compensation of § 1168 AGBG is excluded. Furthermore, Peel & Pulp Digital shall be indemnified and held harmless against any claims of third parties, in particular contractors of Peel & Pulp Digital. Upon payment of the fee, the customer shall not acquire any rights of use to work already performed; concepts, drafts and other documents which have not been executed shall be returned to Peel & Pulp Digital without delay.
8.7 Peel & Pulp Digital shall be entitled to increase the lump sum amounts stated overleaf accordingly in case of increases in labor and material costs or other costs and charges occurring after conclusion of the contract for software support services and to charge them to Customer as of the beginning of the month following the increase. The increases shall be deemed accepted by the customer from the outset if they do not exceed 10% per annum.
9. Payment, retention of title
9.1 The fee shall be due for payment immediately upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This shall also apply to the charging on of all cash expenses and other expenses. The goods delivered by Peel & Pulp Digital shall remain the property of Peel & Pulp Digital until full payment of the remuneration including all ancillary liabilities.
9.2 In case of default of payment by Customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in case of default of payment Customer undertakes to reimburse Peel & Pulp Digital for any dunning and collection expenses incurred, as far as they are necessary for the purposeful prosecution. This includes in any case the costs of two reminders in a customary amount of currently at least € 20,00 per reminder as well as a reminder letter of a lawyer charged with the collection. The assertion of further rights and claims shall remain unaffected.
9.3 In case of Customer's default of payment Peel & Pulp Digital may declare all services and partial services rendered under other contracts concluded with Customer immediately due and payable.
9.4 Furthermore, Peel & Pulp Digital shall not be obliged to provide further services until the outstanding amount has been paid (right of retention) and shall be entitled to stop work in progress and to withdraw from the contract. All associated costs and loss of profit are to be borne by the customer. In the event of late payment, interest on arrears shall be charged at the rate customary in banking. In case of non-compliance with two installments in case of partial payments, Peel & Pulp Digital shall have the right to enforce loss of date and to call in handed over acceptances.
9.5 If payment in installments has been agreed upon, Peel & Pulp Digital reserves the right to demand immediate payment of the entire outstanding debt in case of late payment of partial amounts or additional claims (loss of time).
9.6 The Customer shall not be entitled to set off its own claims against claims by Peel & Pulp Digital, unless the Customer's claim has been acknowledged by Peel & Pulp Digital in writing or has been established by a court of law.
9.7 Customer is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.
10. Property rights and copyright
10.1 All services rendered by Peel & Pulp Digital, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides), including individual parts thereof, shall remain the property of Peel & Pulp Digital, as shall the individual workpieces and design originals, and may be reclaimed by Peel & Pulp Digital at any time - in particular upon termination of the contractual relationship. By paying the fee, the customer acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, Customer may use the services provided by Peel & Pulp Digital exclusively in Austria and Germany. The acquisition of rights of use and exploitation of Services by Peel & Pulp Digital shall in any case require full payment of the fees charged by Peel & Pulp Digital for such Services. If Customer already uses the Services of Peel & Pulp Digital prior to this date, this use shall be based on a loan relationship which may be revoked at any time.
10.2 Modifications or adaptations of Services by Peel & Pulp Digital, such as in particular their further development by Customer or by third parties acting on Customer's behalf, shall only be permitted with the express consent of Peel & Pulp Digital and - insofar as the Services are protected by copyright - of the author. The release of all so-called "open files" is thus expressly not part of the contract. Peel & Pulp Digital is not obliged to surrender. I.e. without contractual assignment of the rights of use also for "electronic works" the customer has no legal claim to them.
10.3 For the use of services by Peel & Pulp Digital, which goes beyond the originally agreed purpose and scope of use, the consent of Peel & Pulp Digital is required - regardless of whether this service is protected by copyright. Peel & Pulp Digital and the author shall be entitled to a separate appropriate remuneration for this.
10.4 For the use of services by Peel & Pulp Digital or of advertising material for which Peel & Pulp Digital has prepared conceptual or design templates, Peel & Pulp Digital's consent shall also be required after expiry of the agency agreement, irrespective of whether this service is protected by copyright or not.
10.5 In the 1st year after the end of the contract Peel & Pulp Digital shall be entitled to the full agency fee agreed upon in the expired contract for uses according to para. 4. In the 2nd or 3rd year after expiry of the contract only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration shall be payable.
10.6 The Client shall be liable to Peel & Pulp Digital for any unlawful use in the double amount of the fee appropriate for such use.
Peel & Pulp Digital grants Customer, after payment of the agreed fee, a non-exclusive, non-transferable, non-sublicensable right, unlimited in time, to use the Software for the hardware specified in the contract and, to the extent of the number of licenses purchased, for simultaneous use on several workstations, to use all work results created by Peel & Pulp Digital on the basis of the contract for its own, internal use. All other rights shall remain with Peel & Pulp Digital.
The Customer's participation in the production of the Software shall not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of Peel & Pulp Digital's copyrights shall result in claims for damages, in which case full satisfaction shall be paid.
10.7 The Customer is permitted to make copies for archiving and data backup purposes on condition that the Software does not contain any express prohibition by the Licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.
10.8 Should the disclosure of interfaces be necessary for the creation of interoperability of the Software in question, this shall be ordered by Customer from Peel & Pulp Digital against reimbursement of costs. If Peel & Pulp Digital does not comply with this request and decompilation is carried out in accordance with the Copyright Act, the results are to be used exclusively for establishing interoperability. Misuse shall result in compensation for damages.
10.9 If software is made available to the customer whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the license terms of the license holder (manufacturer).
11. Labelling
11.1 Peel & Pulp Digital shall be entitled to refer to Peel & Pulp Digital and, if applicable, to the originator on all advertising media and in all advertising measures, without Customer being entitled to any remuneration for this.
11.2 Peel & Pulp Digital shall be entitled to refer to the existing or former business relationship with the customer on its own advertising media and in particular on its internet website with name and company logo (reference), subject to the written revocation of the customer which is possible at any time.
12. Warranty, maintenance and changes
12.1 Customer shall notify Peel & Pulp Digital of any defects in writing without delay, in any case within eight days after delivery/service by Peel & Pulp Digital, hidden defects within eight days after detection of the same, describing the defect; otherwise the service shall be deemed approved. In this case the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
12.2 The customer warrants that the software fulfills the functions described in the associated documentation, provided that the software is used on the operating system described in the contract.
12.3 In case of justified and timely notice of defects Customer shall be entitled to improvement or replacement of the delivery/service by Peel & Pulp Digital. Peel & Pulp Digital shall remedy the defects within a reasonable period of time, whereby Customer shall allow Peel & Pulp Digital to take all measures necessary to investigate and remedy the defects.
Prerequisite for the elimination of defects is that:
Customer describes the defect sufficiently in an error message and this error message is determinable for Peel & Pulp Digital;
Customer provides Peel & Pulp Digital with all documents necessary for the elimination of the defect;
Customer or a third party attributable to Customer has not interfered with the Software;
the Software is operated under the intended operating conditions according to the documentation.
Peel & Pulp Digital shall be entitled to refuse the improvement of the performance if this is impossible or involves a disproportionately high effort for Peel & Pulp Digital. In this case the Customer shall be entitled to the statutory rights of conversion or reduction. In case of improvement it shall be incumbent upon the Customer to carry out the transfer of the defective (physical) item at his own expense.
12.4 Corrections and additions which prove necessary until the delivery of the agreed service due to organizational and programming deficiencies for which Peel & Pulp Digital is responsible shall be carried out by Peel & Pulp Digital free of charge.
12.5 Costs for assistance, misdiagnosis as well as elimination of errors and malfunctions for which Customer is responsible as well as other corrections, changes and additions shall be carried out by Peel & Pulp Digital against payment. This shall also apply to the elimination of defects if program changes, additions or other interventions have been made by Customer itself or by third parties.
12.6 Furthermore, Peel & Pulp Digital shall not assume any warranty for errors, malfunctions or damages which are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damages.
12.7 For programs which are subsequently modified by Customer's own programmers or third parties, any warranty by Peel & Pulp Digital shall be void.
12.8 As far as the subject of the order is the modification or completion of already existing programs, the warranty refers to the modification or completion. The warranty for the original program shall not be revived thereby.
12.9 It is also incumbent on the Customer to check the performance with regard to its legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. Peel & Pulp Digital is only obliged to perform a rough check of the legal admissibility. Peel & Pulp Digital shall not be liable for the legal admissibility of content in case of slight negligence or after the fulfillment of any duty to warn the Customer, if such content has been provided or approved by the Customer.
12.10 The warranty period shall be six months from delivery/service. The right of recourse against Peel & Pulp Digital according to § 933b Abs 1 AGBG expires one year after delivery/service. The customer is not entitled to withhold payments due to defects. The presumption provision of § 924 AGBG is excluded.
13. Liability and product liability
13.1 In cases of slight negligence Peel & Pulp Digital and its employees, contractors or other vicarious agents ("people") shall not be liable for any damage to property or financial loss of Customer, regardless of whether such damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The existence of gross negligence must be proven by the injured party. As far as Peel & Pulp Digital's liability is excluded or limited, this shall also apply to the personal liability of its "people".
13.2 Any liability of Peel & Pulp Digital for claims made against the customer on the basis of the service provided by Peel & Pulp Digital (e.g. advertising measure) shall be expressly excluded if Peel & Pulp Digital has fulfilled its obligation to inform the customer or if such obligation was not recognizable to Peel & Pulp Digital, whereby slight negligence shall not be prejudicial. In particular, Peel & Pulp Digital shall not be liable for legal costs, Customer's own attorney's fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; Customer shall indemnify and hold Peel & Pulp Digital harmless in this respect.
13.3 Customer's claims for damages shall expire six months after knowledge of the damage; in any case, however, after three years after the act of infringement by Peel & Pulp Digital. Claims for damages shall be limited to the net order value.
13.4 If Peel & Pulp Digital performs the Work with the assistance of third parties and warranty and/or liability claims arise against such third parties in this connection, Peel & Pulp Digital shall assign such claims to Customer. In this case the customer shall give priority to these third parties.
13.5 If data backup has been expressly agreed as a service, the liability for loss of data shall not be excluded in deviation from clause 13.1, but shall be limited for the recovery of data to a maximum of EUR 10 % of the order amount per case of damage, however, to a maximum of EUR 15,000. Any further warranty claims and claims for damages of the Principal other than those specified in this Agreement - irrespective of the legal grounds - shall be excluded.
14. Duration of the contract for software support
The contractual relationship, which presupposes a professional installation of the duly acquired software program that is the subject matter of the contract, shall commence upon signing of the contract and shall be concluded for an indefinite period of time. This contract can be terminated in writing by one of the contracting parties subject to a notice period of 3 months to the end of a calendar year, at the earliest, however, after the expiration of the 24th month of the contract. If the software program that is the subject of the contract is demonstrably put out of operation or goes under, the contractual relationship may be terminated prematurely subject to a three-month notice period. In this case, the aliquot part of the annual flat rate for the service not consumed shall be transferred to a German bank account to be notified by the customer.
15. Applicable law
The contract and all mutual rights and obligations derived therefrom as well as claims between Peel & Pulp Digital and the customer shall be governed by German substantive law excluding its conflict of law rules and excluding the UN Convention on Contracts for the International Sale of Goods.
16. Loyalty
The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, also via third parties, of employees who have worked on the realization of the orders, of the other contractual partner for the duration of the contract and 12 months after the termination of the contract. The contracting party violating this provision shall be obliged to pay liquidated damages in the amount of one year's salary of the employee.
17. Secrecy
Peel & Pulp Digital obligates its employees to comply with the provisions of § 6 of the Data Protection Act.
18. Place of performance and jurisdiction
18.1 Place of performance is the registered office of Peel & Pulp Digital. In case of shipment, the risk shall pass to the Customer as soon as Peel & Pulp Digital has handed over the goods to the carrier chosen by it.
18.2 The place of jurisdiction for all legal disputes arising between Peel & Pulp Digital and the Customer in connection with this contractual relationship shall be the court having subject-matter jurisdiction for the registered office of Peel & Pulp Digital. Notwithstanding the foregoing, Peel & Pulp Digital shall be entitled to sue Customer at Customer's general place of jurisdiction.
18.3 Insofar as in this contract designations referring to natural persons are only stated in the masculine form, they refer to women and men in the same way. When applying the designation to specific natural persons, the respective gender-specific form shall be used.