General Terms and Conditions of pdm solutions
The content in German is the definitive legal version. The translation into English is for your ease of reference only. If the English or American meaning differs from the German meaning, the German meaning shall prevail.
1. Terms and Conditions
1.1 The following general terms and conditions (GTC), unless expressly agreed upon otherwise between the parties in writing, shall apply for all offers, deliveries and services of pdm solutions. Any conflicting conditions of the client shall not apply. Additional agreements or amendments to the contract shall only be valid if confirmed by pdm solutions in writing. Within the general section you will find terms that apply for all services. In the following sections you will find conditions that apply in each case to the individual services described therein. The terms for each service are valid even when multiple services are provided together under a contract or offer.
1.2 pdm solutions provides all services solely as subject to these terms and conditions. This applies in particular when the client uses general terms and conditions which contain terms that are conflicting with or deviating from the terms and conditions of pdm solutions. These general terms and conditions also apply when pdm solutions completes an order with knowledge that conflicting or deviating terms exist on the side of the client.
1.3 pdm solutions may change these terms and conditions with reasonable notice. If the client does not object to the modification within a certain period of time set by pdm solutions, the amendment shall be deemed approved. Within the notice of change, pdm solutions points its clients to the fact that the change will take effect if he does not object within the set period of time.
1.4 pdm solutions may make the full text of these terms public by providing a link under which the full text is available on the internet.
1.5. Additional agreements and exceptions to the present general terms and conditions as well as additions to the contract are only valid if confirmed by pdm solutions in writing.
2. Services of pdm solutions
2.1 The scope of each service arises from the current description of the service at the time of commission.
2.2 pdm solutions grants the client an exclusive right of use for software, programs or scripts provided by pdm solutions and third parties, limited to the time of the contractual agreement. It is not permitted for the client to grant any rights to third parties. Particularly an onward sale is not permitted. When provided with software, the client will delete all copies of the software after termination of the contract; any further use is not permitted in any case. These provisions do not apply to open source programs, only the relevant license conditions are applicable.
2.3 Otherwise, the licensing terms of the producers apply.
2.4 Content, texts, images, animations as well as movie and audio materials provided by pdm solutions can be used by the client for the design of the internet presence (as covered by the contract) during the contract period. It is not permitted to grant any rights to third parties. All material is to be deleted after termination of the contract, if not explicitly stated otherwise in the offer.
2.5 Hardware and other goods remain in possession of pdm solutions until full payment of the respective invoice.
3. Bindingness of Offers
The offers of pdm solutions are always subject to change, unless a validity period is specifically mentioned. Improvements or changes shall remain reserved.
4. Order Acceptance
All orders shall only be deemed accepted when they are confirmed by pdm solutions in writing. This formality may only be waived by written agreement. The order fulfillment is handled within the business scope of pdm solutions by means of electronic data processing. The consent for the storage of necessary data is given upon conclusion of the contract.
5. Prices and payment
5.1 The agreed prices are subject to VAT (valid on the day of invoicing) without deduction. Discounts require a special agreement and are only valid within the stipulated time.
5.2 Unless otherwise agreed upon in writing, payment shall take place within 14 days after receipt of the invoice. pdm solutions is entitled to also invoice a partial execution of the contract. In the case of an exceeded payment deadline, pdm solutions is entitled to charge default interest at the rate of 5 % above the interest rate of the European Central Bank, without the need of a dunning letter. The client's obligation to pay default interest does not include the assertion of further damages to pdm solutions. For dunning letters sent by pdm solutions after the due date, the client will be charged dunning costs of 5,- € per notification. Only checks and bills of exchange are accepted as payment, whereas bills of exchange are only accepted upon special arrangement with pdm solutions. Bank charges and discount charges as well as other costs shall be borne by the client. The value date considered by the bank of pdm solutions takes effect as the payment day, provided that no more chargeback occurs. Should the discounting bill of exchange be rejected by one of the banks involved, pdm solutions is not obliged to submit it to another bank. The agreed prices are valid for the case of delivery within 4 months after conclusion of the contract. If delivery is made later (in particular upon the purchaser's request), increases in the prices for supplies or services that have occurred in the meantime have to be added to the agreed prices. In this case, individuals have the right to withdraw from the contract only if the final price is too high in relation to the price agreed upon in the contract.
6. Delivery, Delay in Delivery, and Risk Transfer
6.1 pdm solutions is entitled to make partial deliveries with appropriate billing, provided that the order cannot only be carried out en bloc.
6.2 All deliveries to the purchaser are made freight not prepaid
6.3 All deliveries are at the risk of the client. This also applies in the case of delivery by personnel of pdm solutions. Specified delivery times are subject to change. If an agreed delivery date is exceeded by more than one month, the client is entitled to set a final deadline of another month for pdm solutions in writing. Only after this final deadline the purchaser may rescind the contract in writing. Other rights, particularly compensation for damages caused by delay or failure to fulfill obligations or other legal reasons, are excluded if the client is a merchant or a legal entity of public law. Other contracting authorities can only claim indemnification if pdm solutions perpetrates a breach of contract caused by malice aforethought or gross negligence.
6.4 pdm solutions is entitled to wholly or partially withdraw from the contract if the performance of the contract becomes impossible for pdm solutions for any intolerable reasons or if the performance becomes impossible, especially in the case of force majeure, war events and civil disasters, strikes, lock-outs, interruptions of operations, delivery difficulties and in the case of insolvency of suppliers.
6.5 If the client refuses to accept the contractual services or a permissible partial delivery, pdm solutions is entitled to claim immediate payment of the contract price or to withdraw from the contract after setting a final deadline of one week or to claim damages for failure to fulfill obligation. In the case of assertion of indemnification, pdm solutions has the option to demand a lump sum of 80 % of the order value without demanding specific proof of damage, provided the client is a merchant or a legal entity of public law. Damages in the lump sum of 40 % of the contract value may be claimed for private individuals. The private individual may give proof for claims to indemnification of pdm solutions that a loss or an impairment loss has not occurred or is significantly lower than the blanket amount. When goods are delivered, pdm solutions is entitled to store them from the date of refusal of acceptance at the expense of the client either with a third party or on the premises of pdm solutions. In the latter case, a storage fee of 2 % of the contract value shall be invoiced for each month.
7. Reservation of Proprietary Rights
7.1 pdm solutions reserves the ownership of all delivered services and supplies until full payment of all claims from the business relationship, including future claims.
7.2 Resale is permitted within a duly business. However, all future claims on third parties will be ceded to pdm solutions as security until full payment of all claims mentioned in paragraph (1). The party accepts the assignment. Upon request, pdm solutions shall be informed about the resulting claims from the resale.
7.3 The assignment may be disclosed to the third party by pdm solutions and payment demanded thereupon. Insurance claims for loss or damage to the services and supplies delivered under reservation of proprietary rights shall be assigned to pdm solutions in full.
7.4 Provided pdm solutions makes use of the right of withdrawal or redemption due to a default in payment through reservation of proprietary rights. pdm solutions is entitled to receive any remuneration for the use and impairment of the provided services and supplies as well as for the incurred costs and lost profits.
8.1 Provided services and supplies shall be immediately checked for defects and reported to pdm solutions. Otherwise, deficiencies in the services and supplies can no longer be recognized.
8.2 pdm solutions is only liable for defects if these defects are reported immediately (within 14 days) after receipt by the client and in writing. A later claim may be accepted only if the defect was hidden and not visible before with careful examination and if the immediate report of the deficiency is made right immediately discovery. pdm solutions is liable for duly notified defects to merchants and legal entities of public law only in the context of the warranties of their respective suppliers, as well as depending on the content of possibly issued warranty certificates.
8.3 The claims to indemnification from non-timely delivery or other positive breach of contract is excluded as well as the conversion privilege and the right to reduce the price. This applies only if neither pdm solutions nor its legal representatives or vicarious agents are guilty of gross negligence or intent. The same applies to indemnification, conversion privileges and the right to reduce the price for any consequential damages, on whatever cause they are based. The warranty is ensured only to the original client.
9.1 pdm solutions is only liable for damages in cases of intent and gross negligence by pdm solutions or one of its contractors. If pdm solutions or one of its contractors breaches an essential contractual obligation (cardinal obligation) in a manner that endangers the purpose of the contract, the liability is limited to the typical damage that could have been foreseen by pdm solutions reasonably upon conclusion of the contract, unless the breach of duty is done intentionally or with gross negligence.
9.2 This limitation does not apply to injury of life, body and/or health and in the case of liability under the German product liability law.
9.3 If claims are asserted directly against them, the limitations of the paragraphs 1 and 2 shall also apply to the legal representatives and vicarious agents of pdm solutions.
9.4 Within the scope of the TKG (German Telecommunications Act), the liability rule of § 44a TKG is not affected in any case.
10. Special rules for domains, hosting, online storage, and CMS
10.1 Contractual relationship
10.1.1 Unless otherwise agreed upon in the offer, the contractual relationship concerning the registration of a domain is made directly between the client and the contracting authority or the registrar. pdm solutions mandates the registration of domains for the client within the framework of an agency relationship if pdm solutions itself is not a registrar for the relevant top level domain (TLD). Information about the registrars for each TLD can be found under paragraph (10.1.2).
10.1.2 The top-level domains are registered and managed by different organizations. For each top-level domain, different policies are valid. For .de domains, the domain policies, the domain conditions and the price list of DENIC e.G. apply. The above-linked conditions are part of this contract.
10.1.3 The data for the registration of domains are forwarded in an automated process to the relevant contracting authorities. The client can assume the actual allocation only as soon as the internet service was provided under the desired domain. The allocation of the ordered domains cannot be guaranteed.
10.2 Obligations of the Client
10.2.1 To a reasonable extent, the client is obliged to assist with the registration, transfer and cancelation of domains, the change of entries in the databases of the contracting authorities and the change of providers and registrars.
10.2.2 The Client is responsible for ensuring that its domain(s) and its contents violate neither legal rules nor the rights of third parties. pdm solutions points out that, especially valid for international domains, other national legal systems must be observed where applicable.
10.2.3 The Client is not entitled to offer any domains or content for access which are of extremist nature or contain pornographic or commercial erotic offers. This also applies if said content is made available through hyperlinks or other connections that the contracting entity put on third party sites.
10.2.4 The Client shall ensure not to exceed the quantitatively limited inclusive services, provided an exceedance is not contractually agreed upon. If pdm solutions finds that the contractually agreed-upon traffic volume of a client is exceeded by more than ten percent in one month, pdm solutions shall inform the client in this regard. pdm solutions may offer the client to adapt the contract to the correspondingly higher traffic volume. If the adjustment offer is rejected by the client, pdm solutions can terminate the contract with a notice period of two weeks.
10.2.5 Alternatively, in the case of traffic violations, pdm solutions is entitled to a special right of termination with a notice period of three weeks.
10.2.6 If the data required for the registration of the domain appear to be incorrect and pdm solutions is not able to reach the client under the given contact details, pdm solutions bears the right to delete the domain.
10.3 Reaction of pdm solutions on rights violations and dangers
10.3.1 If third parties credibly show that content or domains violate their rights, or if it seems probable based on objective evidence that laws are violated by domains or content, pdm solutions shall block the respective content as long as the violation or dispute on the infringement with the third party continues.
10.3.2 If the potential infringement is committed by a domain, pdm solutions can also take steps that make the domain unreachable. In cases where the violation of law by a domain appears to be certain on the basis of objective evidence, pdm solutions may terminate the contract without notice.
10.3.3 In the case of extremist, pornographic or commercially erotic content, pdm solutions is entitled to not only order the domain to be blocked but also to give a notice of termination.
10.3.4 If a URL which is maintained by pdm solutions (or which contains content that is on the data center of pdm solutions) is named or linked in spam emails, pdm solutions may temporarily block the domain or content.
10.3.5 The entitlement to compensation of pdm solutions continues as long as the suspension of services due to the above mentioned reasons continues.
10.4 Content Management System (CMS)
10.4.1 pdm solutions reserves the right to limit the size of messages for data fields and databases, as far as this is reasonable for the client.
10.4.2 pdm solutions has the right to delete data created on the accounts after termination of the contract. The client is responsible for an appropriate data backup before the end of the contract period.
10.4.3 Unless otherwise provided by the final formal offer, the contract for the use of the Content Management System (CMS) is automatically extended to the respective minimum contract period / first contract period, as long as the contract is not terminated by one of the parties by giving one month´s notice to the end of the contract term. If the first contract period is longer than one year, the renewal periods last one year.
10.4.4 Notices of termination must be given in writing, whereby sending a fax is sufficient to preserve this formality.
If the client is a businessman, a legal entity under public law or a public special fund, except in case of intent and gross negligence, the liability is limited to the sum of the contractual charges paid by the client to pdm solutions under the specific contract for a period of two years before the beginning of the violating event.
10.6 Procedure in the case of contract termination
10.6.1 Orders to delete domains require the signature of the domain holder / Admin C.
10.6.2 If the client does not order the deletion of a domain in the event of termination, pdm solutions may return the domain to the appropriate contracting authority after the contract ends and after a reasonable period. In this case, pdm solutions hereby points out that a payment obligation of the client towards the contracting authority may remain.
10.6.3 Alternatively, pdm solutions may delete the domain after a reasonable period.
10.6.4 If pdm solutions terminated the contract legitimately due to late payment or for another important reason, pdm solutions can arrange the deletion of the affected domains and all data stored in the CMS after a reasonable period, unless the client issued explicit instructions.
The client shall recover all damages to pdm solutions derived from any breach of the foregoing regulations to the extent of responsibility. The compensation also covers the reasonable costs of any legal defense. pdm solutions shall inform the client immediately and give the client the opportunity to comment on the matter in case pdm solutions or a third party asserts such claims.
12. Special Conditions for Data Delivery Performance
12.1 Data deliveries from research activities are handed over to the client for temporally and spatially unlimited use. Moreover, the property right and right of use of the contractor remain unaffected.
12.2 The licensor grants the client a non-exclusive, worldwide, non-sublicensable license, the licensed content according to the provisions of this agreement in the client’s own services and at the client’s own discretion, and a free service for the end users for all types of use in accordance with the terms of this agreement which can be made published and utilized. The licensor allows the client in particular to proceed thereby in the following manner: (a) access, use, hosting, storage, reproduction, editing, alteration, enhancement, translation, decryption, presentation, exhibition, public communication and dissemination; (b) adjustments and creation of derivative works; (c) copies and communication to the public, end users and partners; (d) display of links; (e) the use related to any other content and for advertising purposes and (f) measures that are technically necessary to implement the foregoing, in each of these cases to provide the respective services in whole or in part, to operate or advertise them and / or to use them.
12.3 The licensor agrees that the client is not obliged to identify the author of the licensed content.
12.4 Moreover, the licensor shall ensure that the licensed content is not of lower quality regarding its completeness or correctness as respective content, which at least meets the market standards and duties of care and can be licensed by the licensor to other similar licensees.
12.5 The licensor also agrees that this agreement does not oblige the client to use the licensed data or portions thereof in any way.
13. Online Outsourcing
13.1 Outsourcing means to pdm solutions (hereinafter called outsourcing provider) the outsourcing of individual workspaces to third persons or companies (hereinafter called outsourcing contractor) and in particular the provision of IT-services, translation services, research activities and writing journalistic and editorial texts.
13.2 The outsourcing provider is entitled, at its own discretion, to perform mandated services themselves, or to use the services of an outsourcing supplier for the provision of the contractual services.
13.3 The supplier warrants the utmost care in the selection of potential outsourcing contractors.
13.4 In the case of online outsourcing of any type of data delivery from research activities the outsourcing contractor grants the outsourcing provider a spatially and temporally unlimited use and all legal utilization rights for the delivered data.
13.5 In the case of online outsourcing of any type of services in the fields of translation work or the writing of journalistic and editorial texts, the outsourcing contractor grants the outsourcing provider a temporally and spatially unlimited use as well as all the legal rights of exploitation.
13.6 In the case of online outsourcing of any type of services in the field of IT services, the outsourcing contractor grants the outsourcing provider a spatially and temporally unlimited use of the delivered services. In particular, the outsourcing contractor grants the outsourcing provider the right to use the supplied source codes and object codes for all legal options of exploitation.
13.7 The invoicing of outsourcing contractors shall be made in writing or via email. Individual agreements remain unaffected. The period for payment shall be deemed as 30 days after receipt of the invoice.
14. Prohibition of Assignment
The rights of the client conferred from business transactions with pdm solutions cannot be assigned to third parties.
15. Verbal Agreements
Verbal agreements and special warranties are only valid if confirmed by pdm solutions in writing.
16. Place of Fulfillment and Jurisdiction
Berlin is the place of fulfillment for deliveries, services and payments. With clients who are general merchants, legal entities under public law or exceptional funds under public law, Berlin is the expressly agreed-upon jurisdiction. Otherwise, the legal provisions shall apply. Berlin is also the expressly agreed-upon jurisdiction for checks and bills of exchange. For all claims of any kind arising from or in connection with this contract, the law of the Federal Republic of Germany shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
17. Legal Validity
If any provision of the above-mentioned conditions is invalid, this shall not affect the validity of the remaining provisions. The ineffective provision shall be replaced by a legal provision.