General Terms and Conditions of Conversion Maker GmbH
All services of Conversion Maker GmbH are provided exclusively on the basis of the following General Terms and Conditions in the version valid at the time of the action. These terms and conditions shall be deemed accepted and agreed at the latest upon acceptance of the service. The customer recognizes them as binding for all future transactions and waives the assertion of its own terms and conditions, unless Conversion Maker GmbH has expressly agreed to their validity in written form.
These terms and conditions are not applicable to contracts with consumers (§ 13 BGB). The statutory provisions shall apply to contracts with consumers.
1. Conclusion of Contract / Term / Termination
Conversion Maker GmbH is bound to offers only until the expiration of 4 weeks after receipt of the offer by the customer. A contract shall only be concluded upon corresponding order confirmation. Subsidiary and additional agreements, agreements on the quality of the delivery items, quality or durability guarantees and other agreements, which are made before, during or after the conclusion of a delivery agreement, must be made in written form in order to be effective. Unless otherwise agreed in written form, a contract shall be concluded for an indefinite period, which may be terminated by either party with six months’ notice to the end of the year.
2. Scope and Object of Delivery
If the object of the delivery consists of software, Conversion Maker GmbH may, as far as practicable and reasonable for the customer, effect the delivery as follows, at the customer’s option: Either by delivering an electronic data carrier on which the software is stored, by sending it by e-mail or by referring the customer to a download option via the Internet. If the installation and use of the delivered software is dependent on the possession of a license key, Conversion Maker GmbH also owes the delivery of a license key that enables the operability of the delivered software to the agreed extent. Clause 1 shall apply accordingly to the delivery of the license key.
If the object of delivery consists of accompanying material for the software (e.g. user manual, data sheets, etc.), Conversion Maker GmbH shall, at its option, either deliver the accompanying material in printed form or deliver it in accordance with clause 1 above. Conversion Maker GmbH reserves the right to make changes to the agreed objects of delivery, in particular in the course of further developments, until delivery to the customer, provided that the agreed performance data and quality specifications are achieved. Partial deliveries are permissible as far as they are reasonable for the customer. Items delivered for test and demonstration purposes shall remain the property of Conversion Maker GmbH. The customer is obligated to ensure proper storage that is safe from access by third parties and may only use the items beyond the test and demonstration purpose on the basis of a separate agreement with Conversion Maker GmbH in written form. Conversion Maker GmbH owes a flawless performance, but not the success that the customer expects from the performance. The assurance of characteristics requires the express written confirmation of Conversion Maker GmbH. After acceptance of the delivered goods, the customer is responsible for proving the flawed execution. The customer is obligated to provide Conversion Maker GmbH with the materials required for the deliveries in accordance with the project requirements in a timely manner and on time prior to the agreed completion date of the product. If the customer fails to meet this deadline, Conversion Maker GmbH shall not be liable for the timely completion of the product. Complaints of any kind must be made in written form to Conversion Maker GmbH within 14 working days after delivery of the work. Thereafter, the delivery shall be deemed to have been accepted free of flaws.
3. Prices, Term of Payment and Retention of Title
The agreed prices are net prices plus the statutory value added tax. If manufacturing or purchasing conditions, raw material costs change or if price increases of suppliers or inflation surcharges or increases of taxes, customs duties or freight due to official orders come into effect until the day of delivery or service, Conversion Maker GmbH may demand a price adjustment corresponding to the delay for deliveries and services that are executed one month after conclusion of the contract or later. For non-merchants the time after which a price adjustment can be demanded increases to four months. If the customer does not agree to this price adjustment, Conversion Maker GmbH may withdraw from the contract. Any expenses incurred by Conversion Maker GmbH as a result of this withdrawal shall be borne by the customer. Unless otherwise agreed in written form, all invoices are due immediately without deduction. The customer is in default if he does not pay within 30 days after the due date of the invoice. Checks and bills of exchange are only considered as payment when cashed. Discount and bank charges shall be borne by the customer. If the customer is in default of payment, Conversion Maker GmbH shall be entitled to charge interest in the amount of 8% p.a. above the respective base interest rate plus other expenses and costs, without prejudice to other rights, in particular the right to withdraw from the contract or any claims for damages. In the event of default in payment, Conversion Maker GmbH may also withhold services without this giving rise to any recourse claims on the part of the customer. If payment by installments has been agreed upon, any remaining purchase price shall become due in total if the customer is in default with two consecutive installments in whole or in part. All deliveries shall be made subject to retention of title until complete fulfillment of all payment obligations of the customer with respect to the delivery in question. Despite the above reservation of title, the customer shall be deemed entitled to distribute the delivery items in the ordinary course of business, unless this contract exceptionally provides for a prohibition of transfer. The customer hereby assigns to Conversion Maker GmbH all claims arising from such a sale transaction in the amount of the price agreed with Conversion Maker GmbH for the delivery item on account of performance. Conversion Maker GmbH may disclose this assignment at any time to secure its payment claims. At the request of Conversion Maker GmbH, the customer shall inform Conversion Maker GmbH of the name and address of his affected buyers as well as the type and scope of his existing claims against them. In the event of seizures, attachments or other dispositions or interventions by third parties, the customer shall notify Conversion Maker GmbH immediately. The customer may only offset claims that are undisputed or have been legally established. The customer may only exercise a right of retention due to counterclaims that are based on the same delivery agreement.
4. Cancellation Costs
Cancellations by the client are only possible with the written consent of Conversion Maker GmbH. If Conversion Maker GmbH agrees to a cancellation, it has the right to charge a cancellation fee of 200 € in addition to the services rendered and costs incurred. This includes expenses incurred and lost profit. Conversion Maker GmbH requires an appointment at the customer’s site to provide its services. If it is not possible on the part of the customer to arrange an appointment with Conversion Maker GmbH within 12 weeks after placing the order, or if an existing appointment is postponed more than three times without any apparent reason, Conversion Maker GmbH has the right to withdraw from the contract and to claim the cancellation costs listed under clause 4.
5. Data Protection and Non-Disclosure
The customer agrees that personal data may be stored in machine-readable form and processed by machine by Conversion Maker GmbH or a third party commissioned by Conversion Maker GmbH for the duration of the contractual relationship, insofar as this is necessary for the fulfillment of the purpose of the contract and for billing purposes. Beyond this, Conversion Maker GmbH will not pass on data insofar as Conversion Maker GmbH is not legally obliged to do so. The customer shall indemnify Conversion Maker GmbH against all claims of third parties regarding the data provided. The customer shall take all necessary care to ensure that all persons entrusted by him with the processing or fulfillment of this contract comply with the statutory provisions on data protection and do not pass on or otherwise exploit information obtained from Conversion Maker GmbH to third parties. Conversion Maker GmbH is obligated to treat all knowledge of the customer’s business secrets obtained in the course of the performance of this contract as absolutely confidential and to use it only for contractually agreed purposes. Conversion Maker GmbH shall ensure that unauthorized third parties do not have access to the data carriers on its own premises. Conversion Maker GmbH undertakes to return all items and documents of the customer in its possession upon termination of the contract and, if applicable, to delete any existing information in another form or to destroy it in any other way in accordance with data protection regulations.
6. Liability / Warranty
The liability of Conversion Maker GmbH and its vicarious agents and assistants for the breach of material contractual obligations is limited to intent and gross negligence. In the event of liability, the extent of liability is limited to the damage usually incurred. The liability of Conversion Maker GmbH for the breach of non-contractual obligations is excluded. Conversion Maker GmbH is not liable for damages caused by force majeure, riots, war and natural events or other incidents for which Conversion Maker GmbH is not responsible (e.g. strikes, lockouts, traffic disruptions, orders of higher authorities in Germany or abroad) or for technical malfunctions (such as the EDP system) that are not culpably caused. Computer viruses as well as intentional attacks on EDP systems by “hackers” shall also be deemed to be force majeure, even if appropriate protective measures have been taken against this.
7. Compensation and other Claims
Claims for compensation, regardless of the legal grounds, are excluded to the extent permitted by law, unless Conversion Maker GmbH is guilty of intent or gross negligence or, in the case of slight negligence, the violation of such obligations, the fulfillment of which is a prerequisite for the proper execution of the contract (so-called cardinal obligations). Conversion Maker GmbH shall endeavor to execute the order with due care. In the event of defective execution of the order, Conversion Maker GmbH shall be entitled to satisfy a justified warranty claim by rectifying the defect. If two attempts at rectification by Conversion Maker GmbH fail, the customer is entitled to claim a reduction in the amount by which the purpose of the creation was impaired (maximum amount of the order value). If Conversion Maker GmbH has performed a partial service, the customer may only withdraw from the entire contract if he has no interest in the partial service. If Conversion Maker GmbH has not performed the service in accordance with the contract, the customer may not withdraw from the contract if the breach of duty is insignificant. If defects arise in connection with a creation, the customer is not entitled to refuse payment for another creation that is subject to a fee. Insofar as obvious defects are concerned, notifications of defects must be made in writing within 14 days of handover. If no notification is made within this period, claims are excluded.
8. Copy Rights and Right of Use
The customer guarantees that the content is lawful and true, that it does not violate applicable law, in particular morality, press, advertising or competition law, and that he has the necessary rights for the contractually required use without restriction. The customer shall indemnify Conversion Maker GmbH against all claims asserted by third parties against Conversion Maker GmbH due to an infringement of third party rights or a violation of statutory provisions in this context. The indemnification also refers to the costs of the necessary legal defense including all court and attorney fees. The assertion of claims by the customer against Conversion Maker GmbH in this context is also excluded. In addition, Conversion Maker GmbH is entitled in such a case to withdraw from the contract or to terminate the contract extraordinarily.
9. Place of Performance / Place of Jurisdiction / Applicable Law
The place of performance and exclusive place of jurisdiction for all services arising from the contractual relationship as well as for disputes between the parties, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law, is Offenburg as the registered office of Conversion Maker GmbH. The relations between the contracting parties shall be governed exclusively by German law.
10. Salvatory Clause
Should any provision of this agreement be invalid or should this agreement contain a gap that needs to be filled, this shall not affect the validity of the remaining provisions. The ineffective provisions or the gap shall be replaced by a provision that comes close to the economic purpose of the agreement and that would have been agreed by the parties if they had known of the ineffectiveness of the provisions.