GTC of Pix Software GmbH
(Information: This page was translated exclusively for your information and is not legally effective in English)
General Terms and Conditions Status 10/2016
These General Terms and Conditions shall form the basis on which Pix Software GmbH provides its deliveries and services. They serve to simplify our business process. Your interests as customer are important to us. Should you have any criticism of regulations in our terms and conditions, please let us know. We will then look for a solution together with you.
1.1 Pix Software GmbH (hereinafter referred to as "Provider") shall render all deliveries and services exclusively on the basis of these General Terms and Conditions (GTC). GTC of the Customer shall not apply even if the provider has not expressly objected to them.
1.2 These General Terms and Conditions shall also apply if the provider executes the service to the Customer without reservation in the knowledge of the Customer's terms and conditions which are contrary to or deviate from its terms and conditions. In such cases, the acceptance of the service by the customer shall be deemed to be an acknowledgement of these GTC with a simultaneous and herewith previously accepted renouncement of the validity of his own GTC.
2. Offer and Conclusion of Contract
2.1 Offers are always subject to change. A contract is concluded when the customer signs and returns our offer, including the contract for order data processing and hosting of Atlassian products and, if applicable, the attached order form, in writing (Section 16.1 page 3) and the provider confirms acceptance in writing (Section 16.1 page 3) ("order confirmation"). If the service ordered is performed by the supplier without the customer having received an order confirmation beforehand, the contract shall come into effect upon delivery or upon commencement of the performance of the delivery or service.
2.2 If the Customer places an additional order with the provider for a service that was already listed in the offer but was not originally ordered by the Customer, the additional order shall be deemed to be part of the main order and shall not require any further writing.
2.3 The customer is obliged to check our offer carefully for correctness and completeness. This applies in particular to offers for projects in which we have made assumptions and designated them as such, which we have based our service description and calculation on. If these assumptions do not apply or if the customer sees a need for changes for other reasons, he will inform us of this so that we can correct our offer accordingly. If the customer fails to do so, any additional expenditure over and above the unchanged offer will be charged to the customer at his expense at the currently valid prices according to the price list.
3. Subject of the Contract, Services
3.1 Contents/condition and scope of the deliveries and services owed by the supplier result, unless otherwise agreed in individual cases, from the respective contract in the form of the order confirmation, in each case with the corresponding product description, in this order.
3.2 As a matter of principle, if not explicitly defined, contractual services are not subject matter of the contract. The customer bears the responsibility for the project and its success. The provider provides the service according to the principles of proper professional practice.
3.3 The provider is not responsible for content that the customer stores on the server space provided for use. The customer is solely responsible for statements of facts and/or opinions expressed in documents of the customer. The provider is not obliged to check the content before it is stored or made available on the server space.
4. Licence Conditions
4.1 Unless otherwise agreed upon, the provider grants the Customer the simple, non-exclusive right to use software that the provider has delivered and handed over to the Customer for his own internal purposes within the scope of the contractually stipulated purpose of use. All other rights remain with the provider. If the Provider supplies standard software from third party manufacturers, the license conditions of the third party manufacturer shall apply.
4.2 The provider is entitled to take appropriate technical measures to protect against use not in accordance with the contract. The contractual use of the services may not be impaired by this.
4.3 Once a year, the provider is entitled to check at the customer's premises whether the delivered software has been and will be used in accordance with the contractual conditions. The provider can carry out the check himself or have it carried out by a third party. If it is determined that the customer has used the delivered product beyond the agreed capacity and/or right of use, the customer must pay the current fee for the additional capacity and/or right of use. If the agreed volume is exceeded by more than 5%, the customer shall bear the reasonable costs of the audit. Any rights of the Provider going beyond this remain unaffected.
4.4 The provider may revoke the customer's right to use the software if the customer violates not inconsiderable restrictions of use or other regulations to protect against unauthorized use. The revocation shall be made by means of a written declaration of revocation; Section 16.1 p. 3 shall apply accordingly. The provider must set the customer a grace period for remedy before revocation. In the event of recurrence and in the event of special circumstances which, after weighing the interests of both parties, justify immediate revocation, the Provider may also revoke the contract without setting a deadline. After the revocation, the customer must confirm the discontinuation of use to the Provider in writing within seven calendar days after receipt of the revocation notice.
4.5 In the case of delivery of standard software which was not produced by us but by third parties, e.g. Atlassian Inc. or others, we do not deliver our own documentation. The customer shall obtain the manufacturer's original user documentation from the manufacturer. As a rule, the manufacturers make this available for download on a website. We do not guarantee that the manufacturers will maintain such websites, also in the future.
4.6 Software is generally supplied by enabling the download by means of remote data transmission. We are obliged to provide the customer with the license key, the customer has no claim against us for the source code.
4.7 If we have undertaken to install the software within the scope of support, the customer shall ensure that the requirements for hardware and other environment, in particular the connection to the existing computer network including all cabling, communicated to him are fulfilled prior to installation. Prior to each installation, the customer shall ensure proper data protection (backup) of all his data.
5.1 For the duration of this contract, the provider rents to the customer a virtual machine described in the contract or offer and - if commissioned - together with hardware. The hardware and software are rented as a uniform system, which is hereinafter referred to as the "rented item". The rented item is provided for the contractual use described in the rental agreement or offer or in the order confirmation.
5.2 The rented item is provided for exclusive use by the customer. The rented item may only be used for the purposes specified in the rental agreement or offer, unless otherwise agreed in the rental agreement or offer, the rented item is intended exclusively for the installation and use of Atlassian products on a Debian Linux basis. The customer is not entitled without the prior consent of the Provider to transfer the use of the leased object including the software provided under this contract to a third party, in particular to rent or lend it. The use by the customer's employees is permitted within the scope of the contractual use.
5.3 The provider shall be responsible for the installation and setup of the rental item and shall make it ready for operation. The establishment of operational readiness and the performance of the inspection of operational readiness shall be carried out at the times and according to the criteria specified in the rental agreement or offer. Further services of the Supplier shall be commissioned separately and shall be remunerated separately.
5.4 The Provider and Customer shall jointly determine the proper operational readiness after the Provider has made the rented item available to the Customer. For this purpose, the Provider and the Customer shall convince themselves that the rented item provided is in a condition in accordance with the contract, if necessary on the basis of criteria agreed in the rental agreement or offer. As far as the operational readiness is given, the offerer will confirm this to the customer in writing or text form (by mail, fax or ticket system). From the day of the confirmation or the presumed operational readiness, the rental contract begins. If the customer does not raise any objections to the determination of operational readiness within five (5) days in writing, the operational readiness at the time of the beginning of the contract is assumed.
5.5 The Provider undertakes to maintain the rented item for the duration of the rental period in a condition suitable for use in accordance with the contract and to carry out the necessary maintenance and repair work. This obligation only refers to the condition of the rented item as per contract at the time of the determination of operational readiness.
5.6 The Provider is entitled to make changes to the rented item insofar as these serve the purpose of preservation or are necessary to protect it from use not in accordance with the contract. Measures for improvement may only be carried out if they are reasonable for the Customer and if the contractual use of the rented item is not impaired as a result. The Provider shall inform the Customer of such measures in good time in advance. If the customer incurs expenses as a result of these measures, these shall be reimbursed by the Provider.
5.7 Changes to the rented item by the customer require the prior consent of the provider. This applies in particular to configuration changes, software installations - with the exception of Atlassian products or their extensions - and the connection of the rented item to other equipment, IT systems or networks. Actions of the customer which do not require consent with regard to the computer programs provided in accordance with § 69d UrhG shall remain unaffected.
5.8 The provider can revoke the customer's right of use or even terminate the entire contract if the customer violates not inconsiderable restrictions of use or other regulations to protect against unauthorized use. The revocation or termination shall be effected by written declaration; clause 16.1 p. 3 shall apply accordingly. Before revocation or termination, the Provider shall grant the Customer a grace period for remedy. In the event of recurrence and in the event of special circumstances which, after weighing the interests of both parties, justify immediate revocation or termination without notice, the Provider may also revoke or terminate the contract without setting a time limit. The sole revocation of the right of use shall not be deemed to be a termination of the contract. After revocation or termination, the customer must confirm the discontinuation of use to the provider in writing within seven calendar days.
5.9 As far as mentioned in the service description, installation and configuration of software are subject of our service. All services going beyond this must be ordered separately.
5.10 Premature termination of use by the leaser shall not affect the fee already paid for the lease period.
6.1 Our consulting and support services are provided within the framework of service contracts.
6.2 The provider's employees involved in the performance of the service are selected by the provider. The customer has no claim to the performance of services by certain employees of the provider. In selecting them, the Provider shall take the Customer's interests into account in an appropriate manner. The provider shall provide the services by personnel who are qualified to provide the agreed services. If a person employed by the provider to fulfil the contract is replaced by another and training is required, this shall be at the expense of the provider.
6.3 The provider determines - in accordance with the subject matter of the contract - the manner in which the services are to be provided.
6.4 The customer is not authorized to give instructions to the provider or the provider's employees involved in the provision of services.
6.5 Unless otherwise agreed, the provider grants the customer the non-exclusive and non-transferable right to use the results of the services rendered and handed over to the customer within the scope of the contract for his own internal purposes within the scope of the contractually stipulated purpose of use on a permanent basis. These rights include the agreed interim results, training documents and aids. All other rights remain with the provider.
7. Prices and Terms of Payment
7.1 Unless otherwise agreed in individual cases, payments are generally due within seven calendar days of the invoice date without any deductions.
7.2 The invoicing of all deliveries and services shall be made by invoice. The contractually agreed prices are decisive. Additional services which are not included in the order confirmation but which are ordered by the customer shall be deemed to be an addition to the respective contract and shall be invoiced additionally on a time and material basis.
7.3 Reasonable partial deliveries are permitted and can be invoiced separately.
7.4 The service is provided at the prices and special conditions of the respective contract. The prices stated therein are binding.
7.5 Unless otherwise agreed in individual cases, the prices shall be "net", plus the legally applicable sales tax owed in each case.
8. Delivery Dates and Deadlines
8.1 If the non-compliance with a certain service time is due to events for which the provider is not responsible (including strike or lockout), the service dates are postponed by the duration of the disturbance including an appropriate start-up phase.
8.2 If the Provider is in default with the provision of services in whole or in part and if the Provider is responsible for this, the Customer's compensation for damages and expenses due to default shall be limited to 0.5% of the price for the part of the service that cannot be used due to the default for each completed week. The liability for delay is limited to 5% of the total price of the respective order. This does not apply if the delay is due to gross negligence or intent of the provider.
9. Duties of the customer
All subsequent obligations of the customer, including the obligation to cooperate, are main obligations.
9.1 The customer assures that the personal data provided is correct and complete. The customer undertakes to inform us immediately of any changes to the data provided. This obligation applies above all to the name, summonable address (no post office boxes), e-mail address, telephone and fax number of the technical and administrative contact person for the domain.
9.2 The customer is obliged to keep the access data to the server strictly confidential and to inform us as soon as he suspects that these access data are known to unauthorized third parties.
9.3 The customer is solely responsible for ensuring that the content produced and/or published via the server is in accordance with legal and contractual regulations. We are not obliged to examine the contents for violations of laws and other rules.
9.4 The customer is solely responsible for the regular data backups of his data stored on the server. He will always make a data backup before maintenance work is announced in good time.
9.5 The customer may only install software that places extreme demands on the server if the server is suitable for this software and the use of the software on this server has been approved by us. An example of software products in this category are "Continuous Build" products such as Atlassian Bamboo. Software products of this type usually require a separate physical server. We reserve the right to shut down the server in the event of unreasonably heavy use of the server.
9.6 The customer shall ensure that the documents, information, etc. necessary for the provision of the service are made available to the provider completely, correctly, on time and free of charge, insofar as they are not owed by the provider. The customer is obliged to support the provider as far as necessary and to create in his business sphere all conditions necessary for the proper execution of the order. In addition, the customer shall provide sufficient workstations and work equipment free of charge at the request of the provider.
10. Material and Performance Defects
For defects in performances that are not services, the provider assumes the warranty according to the following conditions:
10.1 The customer shall immediately report any material defects in a comprehensible and detailed form in writing, stating the information required for the identification and analysis of the defect.
The regulations on fault management, section 11 apply accordingly. In particular, the work steps that led to the occurrence of the fault, the frequency of occurrence and the effects of the fault must be specified. Unless otherwise agreed, he shall use the relevant forms and procedures of the Provider for this purpose. Section 16.1 sentence 3 shall apply accordingly. In addition, the customer shall also support the provider in the elimination of disruptions as far as necessary.
10.2 Software defects: The customer acknowledges that it is impossible, given the current state of the technology, for software to work without errors. The provider therefore only guarantees that the software has the characteristics of the service description or product description at the time of transfer to the customer and that it functions in accordance with the service description when used and properly maintained according to the standards. The Provider does not guarantee, and is not liable for, that the software meets the requirements and expectations of the Customer, is suitable for certain applications and that the software is free of errors and malicious software. In the event of software defects, the Provider has the right, at his discretion, to deliver defect-free software or to remedy the defect (e.g. by means of workarounds or patches). The right to reduction is excluded.
10.3 The customer's claims for defects shall become time-barred one year after delivery or other access to the service. This does not apply to claims for damages, claims and rights of the customer in the case of fraudulent concealment of defects and in the case of acceptance of a procurement guarantee by the provider and for damages directly caused by a defect.
11. Incident Management
11.1 Within the scope of incident management, the Provider shall, during its normal business hours, receive proper incident reports from the Customer by assigning an identifier and shall carry out the agreed measures for analysing and rectifying faults. At the customer's request, the provider shall confirm receipt of the fault report to the customer by informing him of the assigned identification. This is done via the ticket system provided.
11.2 The provider shall provide the customer with measures available to him/her for the avoidance or rectification of a malfunction, such as instructions for action or changes to the software or - in the case of third-party software - shall send the malfunction report together with its analysis results to the distributor or manufacturer of the software with a request for rectification.
11.3 The customer shall immediately take measures to bypass or rectify faults and shall immediately report any remaining faults to the provider again.
11.4 The support service can also be implemented by means of remote maintenance access. For this purpose, the customer shall provide a corresponding secure access.
11.5 Further services for fault management and in relation to the implementation of measures for fault prevention/remedy, such as different response or shorter response times or preventive monitoring and investigation, must be agreed in writing (Section 16.1 p.3), e.g. in a separate Service Level Agreement (SLA).
12. Defects of Law
12.1 The provider is only liable to the customer for an infringement of third party rights caused by his service if the service is used by the customer in accordance with the contract, in particular in the contractually intended usage environment. Liability for the infringement of third party rights is further limited to third party rights within the European Union and the European Economic Area as well as at the place of the contractually intended use of the service.
12.2 The provider shall defend the customer against all claims that are derived from an infringement of an industrial property right or copyright by the contractual use of the service. The provider shall release the customer from any costs and compensation contributions imposed by the customer if the customer has informed the provider immediately about such claims and the customer does not carry out defensive measures and settlement negotiations without the provider's consent.
The provider is liable, regardless of the legal grounds, only in accordance with the following regulations.
13.1 The provider shall be liable without limitation for damages
- for the damage caused by him and his legal representatives or vicarious agents intentionally or through gross negligence
- according to the product liability law,
- for damages resulting from injury to life, body or health and
- for damages according to the product liability law.
13.2 The provider shall be liable for slight negligence if he or his legal representatives or vicarious agents have breached a material contractual obligation (so-called cardinal obligation), the fulfilment of which is essential for the proper execution of the contract or the breach of which endangers the achievement of the purpose of the contract and on the observance of which the customer may regularly rely (as, for example, in the case of the obligation to provide defect-free services). Insofar as the Provider is liable for slight negligence, liability for property damage and financial losses is limited to the foreseeable damage typical for the contract. For an individual case of damage, liability is limited to the contract value. Otherwise, liability for slight negligence is excluded. Liability for other, remote consequential damages is excluded.
13.3 From a guarantee statement, the provider is only liable for damages if this was expressly assumed in the guarantee.
13.4 In the event of loss of data, the provider is only liable for the expenditure required to restore the data if the customer has made a proper data backup. In the event of slight negligence on the part of the provider, this liability shall only apply if the customer has carried out a proper data backup immediately before the measure leading to the loss of data.
13.5 In cases in which no right of permanent use has been agreed, the strict liability of the provider for defects at the time of conclusion of the contract is excluded.
13.6 Insofar as liability is excluded or limited according to this clause 13, this also applies to the personal liability of our employees, representatives and vicarious agents.
14. Return of the Rental Item
14.1 Upon termination of the contractual relationship, the Customer shall return the rented item to the Provider in full in a condition corresponding to the contractual use.
14.1 Upon termination of the contractual relationship, the Customer shall save all data from the rented item and release the rented item for deletion or dismantling. If the release is not effected at the latest on the last calendar day of the rental relationship, the Provider is entitled to demand rent pro rata for each additional day.
14.2 Upon return of the rented item, a protocol will be drawn up in which any existing damage and defects of the rented item will be recorded. The customer shall reimburse the costs for the restoration in case of damages or defects for which he is responsible.
15. Naming as Reference Customers
15.1 The Customer agrees to the naming as reference customer and the use of the company logo by Pix Software GmbH within the scope of a reference customer list. If the naming is not desired, the Customer must object to the naming in writing.
16. Secrecy and Data Protection
16.1 The Provider and the Customer are obliged to maintain secrecy regarding business and trade secrets and other information designated as confidential, which become known in connection with their contractual relationship or the resulting contractual relationship. The passing on of such information to persons who are not involved in the conclusion, the execution or the winding up of the contractual relationship may only take place with written (number 16.1 p.3) consent of the contracting partner. Unless otherwise agreed, this obligation ends after five years from the time the respective information becomes known, but not before the end of the contractual relationship between the Provider and the Customer. The contractual partners shall also impose these obligations on their employees and any third parties employed.
16.2 The contracting parties shall observe the respective valid data protection regulations when providing services. As long as provided by law, the Provider shall oblige the persons working on his side to maintain data secrecy in accordance with § 5 sentence 2 BDSG and shall oblige them to maintain confidentiality in the sense of Art. 28 para. 3 b) DSGVO and shall prove this to the Customer upon request.
As far as the provider processes personal data of the customer during the execution of a contract, he will act on behalf of the customer. The provider will therefore only use the personal data within the framework of the respective contract or other written instructions from the customer and in accordance with the provisions of data protection law. At the request of the Provider or the Customer, a separate data protection agreement (commissioned data processing) may be concluded for the handling of personal data of the Customer.
17.1 Amendments and supplements to all contracts concluded between the parties shall only be agreed in writing. Verbal agreements are only valid if they are confirmed in writing by the Provider within seven calendar days. A fax or e-mail shall satisfy the requirement of the written form.
18. Place of Performance and Jurisdiction
18.1 The place of performance for all obligations arising from the contractual relationships between the parties is the registered office of the Provider.
18.2 The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
18.3 The place of jurisdiction for all legal disputes arising from the contractual relationships between the parties and for disputes relating to the creation and validity of these contractual relationships with respect to merchants, a legal entity under public law or a special fund under public law is the registered office of the provider. However, the Provider is entitled to sue the Customer at his/her registered office.
19. Salvatory Clause
19.1 Should individual provisions in these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions of these terms and conditions or other agreements. The parties are obliged to replace the invalid provisions with valid provisions that come as close as possible to the meaning of the invalid provision.