General Terms and Conditions
§ 1 Scope
(1) These General Terms and Conditions (GTC) apply to all business relationships between Actimi GmbH, Albert-Schäffle-Str. 119, 70186 Stuttgart, represented by Maximilian Weiß (hereinafter: ACTIMI), and our customers (hereinafter: Customer). The GTC apply only if the buyer is an entrepreneur within the meaning of § 14 BGB.
(2) The GTC apply exclusively. Deviating, conflicting, or supplementary GTC of the customer will only become part of the contract if ACTIMI has expressly agreed to their validity in writing.
(3) Unless otherwise agreed, the GTC in the version valid at the time of the customer's order or in any case in the version last communicated to him in writing shall also apply as a framework agreement for similar future contracts, without ACTIMI having to refer to them again in each individual case.
(4) The language available for the conclusion of the contract is exclusively German.
§ 2 Conclusion of Contract
(1) All offers from ACTIMI are subject to change and non-binding unless otherwise agreed or listed in the offer from ACTIMI. All offers are valid for 30 days. This also applies if ACTIMI has provided the customer with catalogs, technical documentation (e.g., plans, calculations), other product descriptions, or documents – also in electronic form.
(2) Every order from the customer constitutes a binding offer, which can be accepted by ACTIMI within two weeks through a written order confirmation. Unless otherwise agreed, the customer is bound to his order for 30 days from its receipt.
(3) A contract with ACTIMI is only concluded when ACTIMI accepts the order in writing (acceptance declaration), provides the customer with the ordered software and/or system or application accesses for use, or transmits the content commissioned for creation.
§ 3 Subject of the Contract/Services
§ 4 License
(1) Unless otherwise agreed, ACTIMI grants the customer a simple right of use (hereinafter: "License"). The license entitles the customer, subject to other agreements, to install and use the software or customization services in the form of the object code for its intended use. The intended use includes the installation as well as the loading, displaying, and running of the installed software.
(2) The customer is entitled to create a backup copy of the data carrier provided to him. The customer must visibly affix the note "backup copy" and a copyright notice from ACTIMI as the manufacturer of the software on the created backup copy.
(3) All rights to the source code of the software are, unless otherwise agreed, exclusively owned by ACTIMI. The customer has no right to access or release the source code. In particular, he may not edit, exploit, or pass it on. § 69e Copyright Act remains unaffected.
(4) The transfer of the license only takes place upon full payment of the remuneration by the customer. Until full payment of the remuneration, ACTIMI tolerates the use by the customer revocably. ACTIMI can revoke the use of such services for which the customer is in default of payment for the duration of the default.
(5) The customer is not entitled to make the software or the backup copy available to third parties for use against payment or free of charge. Subletting or otherwise transferring the software to third parties is thus not permitted to the customer. The customer is also prohibited from decompiling, disassembling, or reverse engineering the program unless the customer is entitled to do so by applicable mandatory copyright law.
§ 5 Data Transmission
(3) ACTIMI's data transmission service is limited to communication between the transfer point of the infrastructure operated by ACTIMI to the Internet and the server. The basic availability of an Internet connection or the establishment of a connection via the Internet or successful access is not part of the performance obligations.
(4) ACTIMI is obligated to take appropriate precautions against data loss and to prevent unauthorized access by third parties to the customer's data. For this purpose, ACTIMI will perform backups, check the customer's data for viruses, and install firewalls according to the state of the art. The customer is equally obligated to secure his access provided by ACTIMI against loss or disclosure to unauthorized persons.
§ 6 Third-Party License Terms
(1) The customer may not remove or alter copyright or other protection notices of the respective licensor (ACTIMI or third-party manufacturer).
(2) Product- or service-specific conditions of the contractual software from the respective manufacturer limit the scope of performance and delivery of ACTIMI and take precedence over these GTC in case of contradictions.
(3) If ACTIMI is not the manufacturer of contractual software, ACTIMI does not guarantee the fulfillment of warranty services by the manufacturer. Claims from the granted warranty are to be made solely against the manufacturer or guarantor.
(4) The customer must observe the license terms of the respective manufacturer.
§ 7 Retention of Title
(1) ACTIMI retains ownership of all services until full payment of all current and future claims.
(2) In the event of contractual behavior contrary to the contract, especially in the case of non-payment of the due purchase price, ACTIMI is entitled to withdraw from the contract according to the legal regulations and to demand the item back. If the customer does not pay the purchase price, ACTIMI may only assert these rights if ACTIMI has previously set the customer a reasonable deadline for payment without success or such a deadline is dispensable according to the legal provisions.
§ 8 Maintenance / Support
(1) If ACTIMI is contractually obliged to provide maintenance and support services, ACTIMI will advise and support the customer by telephone or e-mail regarding the application of the software as well as information about applications, product recommendations, and configurations.
(2) The measurement of compliance with the agreed response time by ACTIMI only takes place within the general support time of ACTIMI and begins with the proper fault report by the customer. A fault report is proper if the customer reports the fault immediately after discovery and describes the symptoms that have occurred, the system and hardware environment, as well as all available useful information in sufficient detail.
(3) ACTIMI provides maintenance and support services: Within a reasonable time, considering the order situation and availability of suitable employees of ACTIMI; At the choice of ACTIMI, regularly by providing software adjustments, including the provision of adapted documentation; With the usual care of the industry.
(4) ACTIMI will endeavour to rectify reported errors promptly as part of the agreed maintenance and support services. However, no guarantee can be given that errors can be rectified within a certain period of time or completely. If it is not possible to rectify the error for reasons for which ACTIMI is not responsible, ACTIMI will inform the customer immediately and seek a joint and appropriate solution.
(5) Unless otherwise agreed, ACTIMI is not obliged to adapt the software to changing legal conditions (laws, regulations, supervisory requirements) or to changing requirements in the customer's sphere.
§ 9 Acceptance
(1) After completion, the customer will be informed in writing about the completion. The customer's acceptance must take place within seven days.
(2) Acceptance of the service requires a functional test. Acceptance may not be refused due to defects that do not or only insignificantly affect the functionality of the service. The customer must immediately check whether the service has been provided essentially in accordance with the contract after completion of individual sections or the overall service.
(3) A functional test is successful if either no significant defects are present or all acceptance criteria agreed between the parties before the acceptance test or in the contract are fulfilled. If the functional test is successful, acceptance must be declared immediately.
(4) At the request of ACTIMI, the customer must confirm the provision of the complete service or the provision of partial services in writing.
(5) The provided service or partial service is considered accepted if: The customer uses the service or partial service for productive work, or The customer or third parties make independent interventions in the delivered program or delivered program parts, or The customer does not provide written confirmation within seven days after being asked to confirm the service by ACTIMI.
(6) If acceptance of the service is exceptionally not possible, especially because it is contractually a purely service-based performance where success is not owed, ACTIMI will receive either a written release or a justified complaint from the customer within fourteen calendar days after submission of his activity report. In this case, the parties will jointly seek a solution.
§ 10 Delivery and Delay
(1) Delivery dates are individually agreed upon or specified by ACTIMI upon order acceptance. All information provided by ACTIMI about the expected time and cost of an ordered service are estimates based on the prerequisites named by the customer and are non-binding. The same applies to information on delivery and service times unless they are specified as binding.
(2) The delivery period may be extended if the customer fails to perform necessary cooperation actions or does not provide the necessary information for the performance in due time. The same applies if the customer is in default with a payment.
(3) If the binding delivery period cannot be met due to unforeseen obstacles for which ACTIMI is not responsible (non-availability of the service), ACTIMI will inform the customer immediately and specify a new delivery period. If the service is also not available within the new delivery period, ACTIMI is entitled to withdraw from the contract in whole or in part.
(4) In the event of default in performance, the customer must first set a grace period. Only after the unsuccessful expiration of the grace period is the customer entitled to withdraw from the contract; the regulation of § 361 HGB remains unaffected.
§ 11 Prices and Payment Terms
(1) Unless otherwise agreed in individual cases, the prices indicated at the time of conclusion of the contract apply. All price information is given in euros and is exclusive of statutory value-added tax. All payments are due immediately without deduction.
(2) The remuneration is to be paid monthly in advance.
(3) All invoices and usage records are sent to the customer electronically. The customer must raise any objections to the invoices in writing (e.g., by e-mail) within four weeks of receipt of the invoice. After the deadline, objections can only be raised if the customer was prevented from meeting the deadline without fault.
(4) Payment authorization is required for the remuneration, which can be granted optionally as a SEPA direct debit mandate, credit card payment, or payment by invoice. In the case of SEPA direct debit, credit card, or invoice payment, the amount and debit date or payment deadline will be announced to the customer at least five working days in advance. If the customer and the account holder are not identical, the customer is obliged to forward this information to the account holder.
(5) Upon expiration of the payment deadline, the customer is in default. The purchase price is to be paid during the default at the applicable default interest rate. ACTIMI reserves the right to assert further default damages. The claim for maturity interest (§ 353 HGB) remains unaffected against merchants.
(6) If, after the conclusion of the contract, it becomes apparent (e.g., through the filing of a bankruptcy application) that ACTIMI's claim for the agreed remuneration is jeopardized by the customer's lack of ability to pay, ACTIMI is entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract according to the statutory provisions (§ 321 BGB). For contracts for the production of non-fungible items (custom-made products), ACTIMI can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
§ 12 Contract and Price Adjustments
(1) ACTIMI reserves the right to amend these contractual provisions for good cause, particularly due to a change in the legal situation or highest court jurisdiction, technical changes or advancements, new organizational requirements of mass traffic, regulatory gaps in the contractual provisions, changes in market conditions, or other equivalent reasons and does not unreasonably disadvantage the customer.
(2) Changes to the contractual provisions will be communicated to the customer in writing or by e-mail at least six weeks before their effective date. The customer has the opportunity to agree to or object to the changes within a period of two weeks from receipt of the notification in writing or by e-mail. If no timely agreement is given or if the customer objects in due time to the contractual provisions, these do not become the legal basis. ACTIMI then has the option to terminate the contract properly. ACTIMI will explicitly point out this legal consequence to the customer in the change notification.
(3) In the context of long-term contractual relationships, ACTIMI is entitled to increase prices, provided that these do not exceed 7% of the previously applicable price for the corresponding software and SaaS services within a year since the last price increase or 15% of the previously applicable price within three consecutive years since the last price increase and the price increase also corresponds to the cost increase incurred for providing the software and SaaS services, considering possible cost savings.
(4) Price increases become effective, if no longer period is specified in the change notification, at the beginning of the third month after receipt of the change notification by the customer. The customer is entitled to extraordinary termination of the contract within six weeks from notification of the price increase at the time of the effective date of the price increase, provided the remuneration increases by more than 5%. If the customer does not make use of this right and has been informed of this legal consequence in the price increase notification, the contract will continue at the changed prices.
§ 13 Warranty
(1) With the exception of service contract services, ACTIMI warrants that the service is essentially free from defects. The relevant time is the transfer of risk, i.e., the delivery by ACTIMI or the acceptance by the customer.
(2) Each delivery item must be examined by the customer immediately upon receipt. Any defects discovered must be reported in writing to ACTIMI immediately. The 7 customer's written defect report must describe the defect comprehensively and concretely. Initially hidden defects must be reported immediately after discovery. If the customer fails to comply with this obligation, the delivery item is deemed approved concerning this defect, with the consequence that the assertion of warranty claims is excluded. ACTIMI may claim reimbursement of expenses if no defect is found and the customer knew or negligently did not know that no defect was present.
(3) Defects reported in due time or recorded in the acceptance protocol will be rectified by ACTIMI within the scope of technical possibilities without delay.
(4) The warranty is excluded in the event of damage or disturbances caused by the customer's contractual behavior. This also applies if the customer commissions a third party to make changes or edits to the services of ACTIMI without the written consent of ACTIMI. (5) Services to all performance items provided by ACTIMI are only considered as supplementary performance if the defectiveness is expressly acknowledged by ACTIMI or if justified defect claims of the customer are proven. Otherwise, such services are considered special services.
(6) If the software is defective, ACTIMI will, at its discretion, rectify the software defects through error correction, replacement, updates, or releases of a new version of the software. If the defect elimination is not possible, error avoidance options will be shown to the customer. If these are reasonable for the customer, they are considered supplementary performance. ACTIMI's right to refuse supplementary performance under statutory conditions remains unaffected.
(7) If the defect elimination is not successful after three unsuccessful supplementary performance attempts or after the expiration of a set period for supplementary performance, the customer is entitled to a reduction. If it is a significant defect, the customer is also entitled to withdraw from the contract instead of reduction. Further claims of the customer, especially for consequential damages, are generally excluded, except in cases of intent, gross negligence, or breach of essential contractual obligations.
(8) The no-fault liability for initial defects according to § 536 a para. 1 1st alt. BGB is excluded. ACTIMI's liability for culpable defects as well as for the absence of guaranteed properties remains unaffected.
(9) Warranty claims expire within one year after the transfer of risk.
§ 14 Contract Duration and Termination
(1) Unless otherwise agreed, the minimum contract term is six months. The contract is extended by one additional month each if the contract is not terminated at least two weeks before the end of the minimum contract term.
(2) Termination must be made in writing (e-mail, letter) (SMS excluded). Decisive for compliance with the termination period is the receipt of the termination declaration by ACTIMI.
(3) The right of both parties to extraordinary termination for good cause remains unaffected.
(4) Upon the effectiveness of the termination, ACTIMI is entitled to delete the customer's data. In the case of extraordinary termination, ACTIMI will keep the customer's data available for retrieval for a period of four weeks beyond the termination date; this does not apply if ACTIMI runs the risk of being prosecuted or claimed by third parties by keeping or making the content accessible.
(5) In the event of termination, the customer must cease using the software and remove all copies of the program and return any created backup copies to the licensor immediately or destroy them at the licensor's option.
§ 15 Customer's Duty to Cooperate
(1) The customer is obligated to provide the information necessary for ACTIMI's services and to cooperate in the fulfillment of the services owed by ACTIMI to the required extent. ACTIMI has no obligation to conduct investigations. If necessary, the customer will temporarily provide ACTIMI with tools and grant access to his systems.
(2) The customer is obligated to secure the software against unauthorized third-party access by suitable measures, particularly to store all legally permissible copies of the software in a protected location.
(3) The customer must take reasonable precautions in case the software does not work correctly (e.g., by data backup, documentation of software usage, error diagnosis, regular testing of results, emergency planning). It is his sole responsibility to ensure the functionality of the work environment (e.g., by keeping his computer systems up to date and having the system resources required for the proper operation of the program).
(4) If ACTIMI is to perform services concerning the customer's software (e.g., installation, customization, etc.), ACTIMI must have access to it at the agreed time and be equipped with the necessary usage rights.
(5) If ACTIMI performs services on-site at the customer's premises, all necessary preliminary work must be completed on the customer's side so that the services can begin immediately upon the arrival of ACTIMI's employees and be carried out without interruption. The customer will assist ACTIMI in operating third-party devices and other facilities to the best of his ability and enable services to be provided outside normal working hours if necessary.
(6) The customer is responsible for entering, maintaining, and securing the data and information required for the use of the software, particularly user IDs, passwords, or access codes.
(7) In case of operational disruptions caused by unauthorized or abusive use by the customer, ACTIMI is entitled to exclude the customer from using the software until the disruption is resolved.
§ 16 Third-Party Intellectual Property Rights
(1) If a third party asserts claims against the customer due to the services provided by ACTIMI based on patents, copyrights, or other industrial property rights, ACTIMI will represent the customer in any legal disputes against such claims at its own expense and indemnify the customer from such claims.
(2) However, this only applies if the customer informs ACTIMI immediately about corresponding claims from third parties and details of any legal disputes and leaves all decisions regarding the further use of the services attacked by the third party, the legal defense, and the conclusion of a settlement to ACTIMI and only if ACTIMI is informed of such claims before legal defect claims expire.
§ 17 Liability
(1) ACTIMI is liable to the customer for damages and reimbursement of expenses in case of culpable injury to life, body, and health, as well as in cases of intent and gross negligence, fraudulent concealment of a defect or an expressly assumed guarantee, and under the Product Liability Act.
(2) ACTIMI is also liable in cases of slightly negligent violation of an essential contractual obligation (cardinal obligation). Essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely. In these cases, however, liability is limited to the compensation of foreseeable, contract-typical damage. Otherwise, liability for damages and reimbursement of expenses – regardless of the legal reason – is excluded. Claims for the violation of an essential contractual obligation are subject to a limitation period of 12 months.
(3) If ACTIMI acts merely as an intermediary in the name and on behalf of third parties, the customer has no claims for liability or warranty against ACTIMI, provided 10 that ACTIMI itself is not at fault in selecting the third party. If ACTIMI acts as a client of third parties, ACTIMI will assign all warranty, compensation, and other claims against the third party to the customer. Before claiming against ACTIMI, the customer undertakes to use all legally permissible means to enforce the assigned claims.
(4) The above provisions also apply in favor of ACTIMI's legal representatives and vicarious agents if claims are made directly against them. ACTIMI reserves the right to invoke the defense of contributory negligence.
§ 18 Reference
ACTIMI may list the customer as a reference in its sales and marketing materials. The customer's logo can also be used, and a link to his website can be set. If the customer objects, ACTIMI will immediately stop the relevant activities.
§ 19 Force Majeure
(1) If a case of force majeure occurs, the affected contractual party is released from its performance obligations for the duration and to the extent of the effects. A case of force majeure exists if an event beyond the control of the respective contractual party prevents the contractual partner from fulfilling his obligations. This includes, in particular, fire damage, flooding, strikes, and lawful lockouts, as well as uncaused operational disruptions or official orders. (2) In the event of force majeure, the affected contractual party must immediately inform the other party of the occurrence and the cessation of the force majeure and promptly strive to remedy or limit the force majeure and its effects as far as possible. (3) In the event of force majeure, the contractual parties will determine whether the performance obligations are to be made up after the cessation of the force majeure. A deadline can be mutually agreed upon, after which each contractual party can withdraw from the contract if the force majeure has not been eliminated within this period.
§ 20 Set-Off and Retention Rights
Set-off by the customer is excluded unless the customer's counterclaim is undisputed or legally established. A right to refuse performance and a right of retention of the customer can only be asserted if the payment claim of ACTIMI and the counterclaim of the customer are based on the same contractual relationship.
§ 21 Confidentiality
(1) The contractual parties undertake to keep confidential all confidential information obtained in the course of preparing, executing, and fulfilling the contractual relationship, in particular business and trade secrets of the other contractual party, and not to disclose or otherwise exploit them. This applies to any unauthorized third party, i.e., also to unauthorized employees, both their own and those of the contractual partner unless the disclosure of information is required for the proper fulfillment of contractual obligations. In case of doubt, the affected contractual party is obliged to ask the contractual partner for consent before such disclosure. This confidentiality obligation remains in effect even after the end of the contract.
(2) The contractual parties are obliged to disclose confidential information only to such representatives and subcontractors who need to know this information for the purpose of the agreement (need-to-know principle), provided that the respective receiving party ensures that their representatives comply with this agreement as if they were themselves bound by this agreement.
§ 22 Data Protection
(1) When processing the customer's personal information, ACTIMI complies with the statutory data protection regulations. This includes technical security measures adapted to the current state of the art (Art. 32 GDPR) and the obligation of employees to maintain data confidentiality (Art. 28 III lit. b GDPR). If subcontractors of ACTIMI come into contact with personal data, a data processing agreement (DPA) will be concluded with them beforehand, which can be inspected if necessary.
(2) In addition, the user is responsible for data security.
§ 23 Final Provisions
(1) The contractual relationship between the parties and all disputes arising from or in connection with this contractual relationship are subject to the law of the Federal Republic of Germany. The application of international uniform law, in particular, the UN Sales Convention, is excluded.
(2) Changes to these GTC require written form. This also applies to the amendment or cancellation of this written form requirement. Excluded from this requirement are individual agreements between the contractual parties according to § 305b BGB or their authorized representatives.
(3) Legally significant declarations and notifications of the customer concerning the contract (e.g., setting deadlines, notification of defects, withdrawal, or reduction) must be made in writing. Statutory form requirements remain unaffected.
(4) Orders and side agreements given orally are only binding if they are confirmed in writing by ACTIMI and the customer does not object in writing within one week of receipt of the confirmation. This also applies to any contractual changes after the contract is concluded.
(5) The customer can transfer rights and obligations from the contract to a third party only with prior written consent from Actimi.
(6) Actimi can transfer the contract as a whole or individual rights and obligations of the contract to an affiliated company (§§ 15 ff. AktG).
(7) The place of jurisdiction is Stuttgart, provided that the customer is a merchant or a legal entity under public law or a special fund under public law. The same applies if a customer has no general place of jurisdiction in Germany or the residence or habitual abode is not known at the time of filing the lawsuit.