Terms of Contract

Terms of Service

§ 1 Validity
1. All deliveries, services and offers from SHOPMACHER are based exclusively on these general terms and conditions. These are part of all contracts that SHOPMACHER concludes with its contractual partner (hereinafter also referred to as “client”) for the services offered by SHOPMACHER. They also apply to all future services or offers to the customer, even if they are not separately agreed again.

2. Terms and conditions of the client or third parties do not apply, even if SHOPMACHER does not separately object to their validity in individual cases. Even if SHOPMACHER refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute consent to the validity of those terms and conditions.

§ 2 Offer and conclusion of contract
1. All offers from SHOPMACHER are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. SHOPMACHER can accept orders or commissions within 14 days of receipt.

2. Contracts concluded in writing, including these general terms and conditions, are solely decisive for the legal relationship between SHOPMACHER and the customer. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by SHOPMACHER before the conclusion of these contracts are not legally binding and verbal agreements between the contracting parties are replaced by written contracts unless they expressly state that they continue to be binding.

3. Changes to the order confirmation are subject to SHOPMACHER’s change request procedure. Due to this CR, the execution deadlines and dates are postponed accordingly.

4. SHOPMACHER retains ownership, copyright or other industrial property rights to all offers, cost estimates and drawings, illustrations, calculations, definitions, schemes, plans, concepts, brochures, catalogues, models, tools and other documents and tools. Without the express consent of SHOPMACHER, the client may not make these items accessible to third parties, disclose them, use them himself or have them used or reproduced by third parties. At the request of SHOPMACHER, the client must return these items in full and destroy any copies that may have been made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 Prices and Payments
1. The prices apply to the scope of services and scope of delivery listed in the order confirmation. Additional or special services will be charged separately. The prices are in euros plus statutory VAT.

2. Invoice amounts are to be paid within 14 days (after the invoice date) without any deduction, unless otherwise agreed in writing. The date of receipt by SHOPMACHER is decisive for the date of payment. Checks only count as payment after they have been honoured. If the client does not pay by the due date, the outstanding amounts shall bear interest at 5% pa from the due date; the assertion of higher interest and further damages in the event of default remains unaffected.

3. Offsetting against counterclaims by the customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.

4. SHOPMACHER is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if SHOPMACHER becomes aware of circumstances after conclusion of the contract which are likely to significantly reduce the creditworthiness of the customer and through which the payment of the outstanding claims of SHOPMACHER is endangered by the client from the respective relationship (including from other individual orders to which the same framework agreement applies). 5. Subject to deviating individual agreements, the SHOPMACHER price list valid at the time the offer was made shall apply to the payment of services by SHOPMACHER and the compensation for expenses incurred.

§ 4 Dates/deadlines/impedances to performance

1. Periods and dates for deliveries and services promised by SHOPMACHER are always only approximate, unless a fixed period or a fixed date has been expressly promised or agreed.

2. SHOPMACHER can – without prejudice to its rights arising from the customer’s default – demand an extension of delivery and service periods or a postponement of delivery/service dates by the period in which the customer does not meet his contractual obligations towards SHOPMACHER.

3. SHOPMACHER is not liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (for example operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, defects of workers, difficulties in obtaining necessary official permits, official measures or the lack of, incorrect or late delivery by suppliers) for which SHOPMACHER is not responsible. If such events make the delivery or service significantly more difficult or impossible for SHOPMACHER and the hindrance is not only of a temporary nature, SHOPMACHER is entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the delivery or service deadlines are extended or the delivery and service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to SHOPMACHER.

4. SHOPMACHER is entitled to partial deliveries if
the partial delivery can be used by the customer within the scope of the contractual purpose,
the delivery of the remaining ordered goods is ensured.
the client does not incur any significant additional work or additional costs as a result (unless SHOPMACHER agrees to bear the costs).

5. If SHOPMACHER defaults on a delivery or service, or if a delivery or service becomes impossible for whatever reason, SHOPMACHER’s liability for damages is limited in accordance with Section 9 of these General Terms and Conditions.

§ 5 Duty to cooperate
1. The customer will provide the necessary data, especially content to be entered for the websites, in a timely manner and in digital form, after checking the orthographic correctness beforehand. Insofar as SHOPMACHER provides the customer with drafts and/or test versions, stating a reasonable deadline for checking them for correctness and completeness, the drafts and/or test versions are deemed to have been approved after the deadline has expired, unless SHOPMACHER receives a correction request.

2. The customer is responsible for sufficient resources and information as part of his obligation to cooperate. He will ensure the availability of the required number of competent employees from a technical and EDP point of view and for sufficient computer capacities such as memory, processor performance and line capacities.

3. If SHOPMACHER deems this necessary, the client will provide a test environment (hardware with the latest software version, in particular the operating system corresponding to the later conditions of use and the corresponding server software).

4. If and to the extent that errors or impairments of the functionality of the services of SHOPMACHER, for example a website, occur, the client will inform SHOPMACHER immediately, stating the time of errors, specifications and the name and telecommunications data (telephone and e-mail) of the reporting and responsible employee . Basically, SHOPMACHER will start the necessary work after 3 working days at the latest, unless the circumstances or contractual agreement require earlier action.

5. The customer is responsible for the trouble-free operation of the facilities for remote maintenance and care, in particular stable data services and interfaces.

§ 6 Customer's obligation to back up data
The customer is obligated to adequately protect himself against loss of data. Since the new installation of software, but also the modification of installed software, involves the risk of data loss, the customer is obliged to take precautions against data loss by means of a comprehensive data backup before reinstalling or modifying the installed software.
§ 7 Rights of Use
1. Every order placed with SHOPMACHER is a copyright contract, which is aimed at granting rights of use to the work.

2. SHOPMACHER grants the customer an exclusive right to use the concept created for the execution of this order and the implemented HTML documents, which is limited to the medium of the internet. An express written agreement between SHOPMACHER and the client is required for the use of the order-related results from concept, design and software development in other media. However, the right of use is only granted once the entire fee has been paid in full.

3. The software product is made available to the customer for the period of its economic life, but is not sold. The corresponding license to use the software product includes the simple, non-exclusive, perpetual and non-transferable right to use the software product including the associated user documentation.

4. Upon request, the client is obliged to provide SHOPMACHER with written information about the scope of its use.

5. SHOPMACHER has the right to be named as the author on the website and in publications about the work. Suggestions by the customer or his employees have no influence on the amount of the remuneration and do not justify any joint copyright.

6. When using the customer’s templates, SHOPMACHER assumes that these are not encumbered with the rights of third parties and that the customer has the right of use required for the order.

7. SHOPMACHER also makes use of the rights of third parties (foreign license material) for the website, which can only be transferred to the customer for a limited period of time. The restricted transmission can lead, among other things, to the fact that third-party license material can no longer be made available or can only be made available under significantly changed conditions over which SHOPMACHER has no influence. In this case, SHOPMACHER will make every effort to use similar material.

8. SHOPMACHER can invoice the customer for the costs of third-party license material by submitting a statement from the licensor with a service surcharge of 20%.

9. The customer may only use third-party licensed material in connection with and within the framework of the website. If the licensor makes a claim against SHOPMACHER because the third-party license material was not used accordingly, the client is responsible for compensating for the resulting damage.

10. The customer is obliged to inform SHOPMACHER of any unlawful use of the Licensed Material of which he becomes aware, and to take legal action against an infringer of industrial property rights or to support SHOPMACHER in doing so.

11. If the client becomes aware of violations of rights of use through the services of SHOPMACHER through warnings from third parties, the client will inform SHOPMACHER immediately.

12. In particular, the client is not entitled to edit, further develop, pass on or sub-license the service. There is no right to transfer of the source code.

§ 8 Warranty
1. The warranty period for work contracts is 1 year from delivery or, if acceptance is required, from acceptance.

2. SHOPMACHER rectifies defects free of charge and provides the client with a corrected release status (modified version that no longer contains the defect reported) free of charge. Any additional activities will be billed at cost. The client will implement the troubleshooting measures immediately (e.g. install new releases immediately).

3. The items and services delivered by SHOPMACHER must be carefully examined immediately after delivery to the customer or to a third party designated by him. They are deemed to have been approved if SHOPMACHER does not submit a written notice of defects with regard to obvious defects or other defects that were recognizable during an immediate, careful inspection within seven working days after delivery of the delivery/service or otherwise within seven working days after discovery of the defect or any earlier point in time , in which the defect was recognizable for the client during normal use of the delivery item/service without closer examination.

4. SHOPMACHER does not guarantee the availability of websites.

5. In the event of defects in the service/delivery, SHOPMACHER is initially obliged and entitled to make a choice within a reasonable period of time to rectify the defect or deliver a replacement. In the event of failure, ie impossibility, unreasonableness, refusal or reasonable delay in rectification or replacement delivery, the customer can withdraw from the contract or reduce the remuneration appropriately.

6. If a defect is the fault of SHOPMACHER, the customer can demand compensation under the conditions specified in the following paragraph.

7. In the event of defects in components or services from other manufacturers that SHOPMACHER cannot remedy for licensing or factual reasons, SHOPMACHER will, at its discretion, assert its warranty claims against the manufacturers and suppliers for the customer’s invoices or assign them to the customer. Warranty claims against SHOPMACHER for such defects under the other conditions and in accordance with these General Terms and Conditions only exist if the judicial enforcement of the aforementioned claims against the manufacturer/supplier was unsuccessful or, for example, is hopeless due to insolvency. The statute of limitations for the relevant warranty claims of the customer against SHOPMACHER is suspended for the duration of the legal dispute.

8. The obligation to guarantee does not apply if the customer changes the delivery item or has it changed by a third party without the consent of SHOPMACHER and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client has to bear the additional costs of remedying the defect caused by the change.

§ 9 Liability for damages due to negligence
1. The liability of SHOPMACHER for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery/service, breach of contract, breach of obligations during contract negotiations and tortious acts, insofar as fault is relevant in each case, according to the provisions restricted by this paragraph.

2. SHOPMACHER is not liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents unless there is a breach of essential contractual obligations. Essential to the contract are the obligation to timely delivery and installation of the delivery item that is free of significant defects, as well as the duties of advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s personnel or to protect them property from significant damage.

3. Insofar as SHOPMACHER is basically liable for damages in accordance with the above item of this paragraph, liability is limited to damages which SHOPMACHER foresaw as a possible consequence of a breach of contract when the contract was concluded or which it should have foreseen if it had exercised due diligence. In addition, indirect damage and consequential damage resulting from defects in the delivery/service can only be compensated if such damage is typically to be expected when the delivery/service is used as intended.

4. In the event of liability for simple negligence, SHOPMACHER’s obligation to pay compensation for property damage and the resulting further financial losses is limited to an amount of EUR 100,000 per claim, even if it is a matter of a breach of essential contractual obligations.

5. The above exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of SHOPMACHER.

6. The limitations of this paragraph do not apply to the liability of SHOPMACHER for intentional behavior, for guaranteed characteristics, for injury to life, limb and health or under the Product Liability Act.

§ 10 Term and Termination
1. Subject to deviating (individual) agreements, the contract for the provision of services can be terminated at any time with immediate effect for the future. The services provided up to that point are to be remunerated by the customer to an appropriate extent on the basis of SHOPMACHER’s price list; the records (in particular the time recording) of SHOPMACHER apply to this.

2. The right to extraordinary termination remains unaffected. This happens in particular if the client is in default with the payment of the remuneration or does not provide his cooperation services or does not provide them in good time despite a reminder or does not provide them with sufficient scope and quality.

3. The termination must be in writing; the electronic form is excluded.

§ 11 Safety Provisions
The customer is responsible for compliance with national laws, regulations and safety regulations, particularly with regard to approval, installation, operation, maintenance and repair of the delivery items and undertakes to comply with them. The client is obliged to indemnify SHOPMACHER against all claims arising from the client’s non-compliance with local regulations.
§ 12 Subcontractors
SHOPMACHER is entitled to transfer individual performance obligations or all obligations arising from the business relationship with the customer to third parties or to engage subcontractors. The customer agrees to the transfer of all data that the customer has transmitted/made available to third parties and subcontractors by SHOPMACHER.
Section 13 Confidentiality
1. The contracting parties undertake to treat information about the other contracting party confidentially, unless the information is already known to the public or the relevant contracting party has consented to disclosure in advance. This also applies to offers, cost estimates, concepts, specifications, the concept booklet, drawings, brochures and other documents that are provided to the customer in the course of initiating a contract (note that I already have something similar in the area of offers!) This obligation also applies it falls beyond the duration of this contract.
§ 14 Final Provisions
1. The place of jurisdiction for any disputes arising from the business relationship between SHOPMACHER and the customer is, at SHOPMACHER’s option, their registered office or the customer’s registered office. For lawsuits against SHOPMACHER, Gescher is the exclusive place of jurisdiction. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.

2. The relationship between SHOPMACHER and the customer is exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods from April 1980 (CISG) does not apply.

3. Should a provision of this agreement be ineffective, unenforceable or contestable, this does not affect the validity of the rest of the contract. The ineffective, unenforceable or contestable regulation should be replaced by one that corresponds to the economic purpose of the parties. The same applies in the event of a gap in this contract.

Note: The client acknowledges that SHOPMACHER stores data from the contractual relationship in accordance with Section 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties to the extent necessary for the fulfillment of the contract.

Status: March 2017

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