1. General, scope of validity, amendments
These general terms and conditions of business are valid between the customer and the company DRACOON GmbH (also DRACOON or the supplier). These general terms and conditions of business, together with the respective service description for the selected modules, their general conditions and all other conditions apply in the form as valid at the time of contractual agreement and upon their provision to the customer at the time of order placement.
These terms and conditions of business apply exclusively to sole traders, companies and corporations. These terms and conditions of business also apply to all future business conducted with the customer. Amendments to the general terms and conditions of business and product sheets shall be issued to the customer no later than one month after their coming into effect, either by email or post, and shall take effect if the customer does not reject them within one month of receipt of the amendments.
2. Contractual conclusion
All agreements that are met between the customer and supplier for the establishment and execution of the contract – in particular agreements regarding the scope of supply of deliveries or services – must be drawn up in writing. If a written contract does not exist then the supplier’s written order confirmation shall be decisive. With respect to cost estimates, individual drawings, plans, drafts generated at the behest of the customer, and any other documents, DRACOON GmbH reserves the right to unlimited proprietorship and copyright entitlements. Such documents must not be disclosed to third parties without obtaining prior permission from the supplier. Any drawings and other documents associated with the quotation must be returned immediately if the order is not issued to the supplier. Duplication or disclosure to third parties is prohibited. Verbal ancillary agreements, which are concluded with the supplier’s personnel, must be accompanied by written confirmation by the company management of DRACOON GmbH in order to take effect. The same applies to any verbal assurances provided by the supplier’s personnel. The contract shall come into effect in line with these conditions and not per conditions that the customer has generated through additions or amendments to the order form, unless the supplier confirms such additions or amendments in writing.
3. Retention of title
If, within the framework of the contract, devices belonging to the supplier are delivered to the customer’s site then the supplier retains ownership of these delivered devices until all payments have been received as are owed as a result of the commercial relationship as a whole. In the event of the customer contravening contractual agreements, in particular in relation to payments owing, the supplier is entitled to retrieve his devices. Retrieval of the devices does not constitute withdrawal from the contract unless the supplier expressly states this in writing. Following retrieval of the devices, the supplier is entitled to further utilise these. The value of the utilisation of these devices shall be offset against the customer’s liabilities to an appropriate degree, less any utilisation costs. The customer is obligated to handle purchased and leased items with care. He is in particular obligated to sufficiently insure these for their new value against damage that may arise due to lightening, fire, water, theft or vandalism. Insofar as maintenance and inspection works are necessary, the customer must have these carried out in a timely manner at his own cost. In the event of seizures or other actions by third parties the customer is required to inform the supplier of this immediately, in order that the supplier may raise a claim in accordance with § 771 ZPO. Insofar as the third party is not able to reimburse the legal and out-of-court costs incurred due to a claim, the customer shall be liable for any losses incurred by the supplier in this regard per § 771 ZPO. The customer is entitled to sell the delivery item within the scope of orderly commercial business. However, the reseller hereby transfers to the supplier all claims up to the final contractual amount, including sales tax, as arise within the scope of his selling the delivery item on to his buyer or a third party. The customer retains the right to collect this amount also after surrendering it. The entitlement of the supplier to collect the amount himself remains unaffected. However, the supplier undertakes not to collect the amount where the customer meets with his payment obligations from the earned revenue, is not in arrears with his payments and in particular is not the subject of the commencement of insolvency proceedings and is further not in the process of stopping payments. However, if this is the case then the supplier may demand that the customer inform him of the transferred amounts and the debtors owing these and that the customer provide him with all of the information required in order to collect the amounts as well as all of the associated documents, or that the customer alternatively inform the debtors (third parties) accordingly.
4. Delivery period
The period for the delivery of goods and services is determined by the contractual agreements concluded per point 2. Adherence to the delivery period requires that all of the documents to be supplied by the customer as well as all approvals, releases, clarifications and approvals of the plans take place within a timely manner, and that the agreed payment terms and other obligations on the part of the customer be duly fulfilled. If these prerequisites are not fulfilled in a timely manner then the period shall be extended appropriately. If it is not possible to meet with the deadline for deliveries or services due to verifiable mobilisation, war, riots or strikes, lock-outs or the onset of unforeseeable circumstances then the period shall also be extended appropriately. If the supplier should fall into arrears with deliveries due to reasons that are solely attributable to his sub-suppliers, or where the arrears situation arises due to his own minor negligence then the supplier shall not be liable for any losses incurred by the customer. Liability due to gross negligence or intent remains unaffected by this clause. Adherence to the delivery obligations on the part of the supplier requires the timely and orderly fulfilment of the customer’s own obligations.
5. Transfer of risk
Insofar as no contrary agreement has been concluded per point 2, deliveries are agreed ex supplier’s registered office. Unless otherwise agreed in writing, the customer shall bear the risk and costs for all shipments, including any returns. Upon leaving our stores, the risk is transferred to you. The supplier reserves the right to select the form of shipping, the shipping company and the insurance cover. Any strongly desired types and forms of shipping must be made known to the supplier in writing at the time of order placement. Insofar as the customer wishes it, the supplier shall arrange insurance cover for the delivery. Any costs that arise in this regard shall be borne by the customer.
In the case of purchased objects, the warranty is limited to 6 months from delivery. With leased objects this cover lasts for the entire lease period. The warranty is invalidated if the customer modifies the goods or services or has these modified by a third party without the supplier’s approval, unless he is able to prove that that respective defects were not caused by the modification carried out by him or a third party. The supplier is entitled to rectify the fault through rework. The supplier shall bear the costs for this. If the supplier fails to meet with his obligation to rectify the fault, regardless of the grounds for this, then the customer is entitled to rectify the fault himself after allowing a period of grace of 8 days and by issuing a declaration stating that he rejects the rectification after this unsuccessful period. After this period of grace has expired the customer is entitled to demand a discount. The customer has the same entitlement after two successive failed attempts to rectify a defect. Further rights against the manufacturer remain unaffected.
The supplier guarantees that the hardware possesses the quality agreed in the purchase contract. If no quality has been agreed then the manufacturer’s service description shall apply. Further manufacturer guarantees supplement the warranty entitlements existing against the supplier. The customer is required to inform the supplier immediately of any defects that arise during the warranty period together with all pertinent details apparent to him, and to observe to a reasonable extent the instructions issued to him by the supplier regarding problem analysis and trouble-shooting. Within the framework of the warranty obligations the supplier is entitled to repair or exchange defective devices, components, auxiliary equipment or parts. The customer shall remove the requisite scope of programs including his application programs, data, data carriers, modifications and add-ons prior to any exchange taking place. The customer shall provide the supplier with the necessary time and opportunity to implement the reworks.
6.3 Standard software
The contracting parties agree that it is not possible – given current engineering practice – to develop programs such that these are fault-free under all application conditions. The supplier shall not be liable for faults in the standard software delivered or supplied by himself, or in software supplied by third parties. In the event of a malfunction the customer is required to generate error documents in accordance with the details in the user documentation. Following receipt of the error documents, the supplier shall forward these on to the sub-suppliers and shall provide warranty services per the provisions of the sub-supplier.
Insofar as the following does not state otherwise, further claims on the part of the customer – regardless of legal grounds – are excluded. The supplier shall not be liable for damages that do not occur on the delivery object itself. The aforementioned liability disclaimer does not apply where damages can be attributed to intent or gross negligence. Insofar as the supplier infringes a substantial contractual obligation, his obligation to compensate for damage to property or persons is limited to the cover provided by his public liability insurance. The warranty periods provided by the supplier are also limitation periods and furthermore apply to claims for compensation, insofar as claims are not validated based on tortuous liability. The previous clauses do not apply to claims made per §§ 1, 4 of the Product Liability Act. The same applies with events of impossibility. Insofar as the supplier’s liability is excluded or limited, this also applies to the personal liability of its employees, staff, personnel, representatives and vicarious agents. Within this framework the supplier shall be liable for all damages caused by its personnel due to intent or gross negligence, where this is in direct connection with the company works. The supplier accepts no liability for defects, damage or security loopholes in hardware or software from third party manufacturers. The supplier accepts no liability and provides no warranty in particular where the customer’s actions are as follows:
- handling the systems with gross negligence or malicious intent
- erroneous use of the system due to a failure to observe the operating instructions
- modifications to the hardware, software or software parameters
- material damage to the system
- changes to the site of installation
- attacks, smuggling in of viruses and vandals via the customer’s network
- misuse of the internet accesses at the customer and at SSP Europe GmbH by the customer
- infringements of applicable law or regulations
- a failure to adhere to the youth protection law
- a failure to adhere to the stipulations within the customer’s company
- a failure to observe data protection law as well as letter and post confidentiality
The supplier accepts no liability and provides no warranty for
- interruptions in the cabling system
- defective fuses and supply lines
- lacking or incorrect power supplies
- faults caused by the actions of third parties
- force majeure, overvoltage, lightening, water or fire damage
- overheating of devices (e.g. due to solar radiation, insufficient fresh air supply or inadequate cooling of the installation site)
- faults in the connection lines (e.g. internet connection/internet line, hard-wired connection, etc between the customer and DRACOON GmbH)
- faults in and to the internet (no accessibility of resources, internet lines) running to and from the data centres of DRACOON GmbH
- successful attacks (paralysis of services (DOS attacks), manipulation, damage or destruction of data, etc) because it is only possible to provide the maximum protection possible at the time
- data integrity (erroneous transfer)
- data losses
- contents of transferred data
In the event of payments being stopped or an application for insolvency proceedings being lodged, the entire amount due from the customer shall fall immediately payable. Deliveries shall be made on account. In the event of insufficient or missing creditworthiness information, the supplier may in some instances deliver following advance payment or upon receipt of cash. The legally applicable sales tax is not included in the prices quoted by the supplier. This shall be charged at the rate applicable on the day of invoicing and shall be listed separately.
Payments are payable without deductions.
- In the case of transactions with an order value of up to € 5,000 following delivery and receipt of the invoice.
- In the case of transactions with an order value exceeding € 5,000, 30% of the order value upon order placement, 70% after delivery of the items.
If the delivery is delayed for reasons attributable to the customer then the day of delivery (completion) is deemed to be the date of notification of readiness for dispatch.
9. Cancellation, transfer of registered office
In the event of a termination with grounds and without notice by the supplier, the customer owes at least the payment up to the end of the contractual duration as compensation for damages. The supplier reserves the right to claim for additional compensation.
In the case that the customer has fallen into arrears with payments with at least two monthly payments more than 10 days after the due date of the second monthly payment, the supplier has the right to terminate the contract with grounds and without notice. The same applies in the case of bankruptcy on the part of the customer. In the event that the customer relocates his registered office or the branch headquarters abroad and the legal entity of the customer thus ends, the supplier is entitled to terminate the contract with grounds and without notice. A relocation and any necessary adjustments to the object of the contract are to be effected exclusively by the supplier and will be invoiced by him according to the usual hourly rates.
10. Data protection
The customer remains responsible for adherence to the regulations of the data protection act as well as other data protection requirements and is required to ensure satisfaction with compliance on the part of the supplier with respect to the technical and organisational measures implemented (§ 11 section 1 BDSG). Obligations governing affected parties as well the the rights of the same affect the customer exclusively. The supplier is subject to the regulations of the federal data protection act (BDSG). As such, the supplier is obligated to observe the principles of orderly data processing and to monitor adherence to the same. Upon request, the supplier shall present to the customer an overview of the processes implemented, as well as those persons holding access rights. Only data expressly required in order to fulfil the contractual agreements shall be acquired, processed and utilised (§ 11 section 3 BDSG). The data can be viewed by the customer. In accordance with the requirements of BDSG, SSP EUROPE GmbH employs a legally effective data protection officer. For the purpose of processing personal data, the supplier undertakes to exclusively utilise personnel who are obligated to observe accordant confidentiality per § 5 BDSG, and who have been informed of the regulations of the data protection act as well as other data protection legislation. If the supplier is of the opinion that an instruction infringes the BDSG or any other data protection legislation then he is required to inform the customer of this immediately. Within the framework of this contract, the supplier is required to name those persons authorised to issue directions or carry out controlling activities on request by the customer.
The supplier shall inform the customer immediately in the event of any irregularities or interruptions relevant to data protection, in particular any reasonable suspicion of data protection infringements and with relevant auditing results from inspection authorities and/or other auditing institutes, if these events relate to the data of the customer or if the services relevant to him are affected. No sub-orders shall be placed with third parties (§11 section 2 BDSG).
11. Confidentiality obligations and secrecy agreement
In order to guarantee the confidentiality of the documents and data pertaining to the supplier and customer, both parties undertake to adhere to the following conditions:
Confidential information that is revealed within the framework of the project shall be treated as strictly confidential at all times.
Confidential information shall be used exclusively for preparing and executing activities within the framework of cooperation and shall not be passed on to third parties without the express permission of the respective founding team or company.
Confidential information provided in writing or electronically shall be returned to the respective producer by the parties on request, and the information shall also be deleted from all data carriers in this case. The preceding obligations retain their validity after this action.
Both parties shall ensure that the passing on of confidential information and documents to any of their additional acting personnel or consultants only takes place once these persons have confirmed their adherence to this confidentiality declaration – also in this legal relationship – or if such persons submit or have submitted a declaration of confidentiality with an accordant scope.
Confidential information and documents in this regard encompasses all commercial, technical, financial and other information that has been published or revealed by teams or companies – regardless of the method thereof. Failure to observe the preceding conditions shall result in a penalty for non-fulfilment/contractual penalty.
Information that is not deemed confidential includes any items that are already known or that are generally published without infringement of the preceding conditions, or that are known to third parties without an infringement of a confidentiality clause. The preceding declaration shall remain effective until two years has passed following the termination of this contract.
12. Final clause
The customer permits the storage, processing and use of master data for the purpose of contractual fulfilment. If any condition should be or become ineffective then the remaining conditions shall continue to be effective. The law of the Federal Republic of Germany applies exclusively. The place of jurisdiction is Regensburg insofar as an agreement on legal jurisdiction can be met with the customer from a legal perspective.