General Terms & Conditions (T&C's)
1. Remuneration, payment, performance protection, deadlines
1.1 Unless otherwise agreed, the remuneration shall be calculated according to expenditure at the prices of mySHOEFITTER UG (hereinafter referred to as the Provider) generally valid at the time of conclusion of the contract. Remunerations are basically net prices plus statutory value-added tax. Der provider can bill monthly. If services are remunerated on a time and material basis, the provider shall document the nature and duration of the activities and submit this documentation together with the invoice.
1.2 All invoices shall in principle be paid no later than 14 calendar days after receipt free paying agent without deduction.
1.3 The customer may only offset or retain payments due to defects insofar as he is actually entitled to payment claims due to material defects or defects of title of the service. Due to other warranty claims, the customer may retain payments only to a proportionate extent taking into account the defect. Section 4.1 shall apply accordingly. The customer has no right of retention if his claim for defects has become statute-barred. In all other respects, the customer may only offset or exercise retention with undisputed or legally established claims.
1.4 The provider reserves the ownership and rights to be granted to the services until the payment owed has been made in full; justified retentions for defects in accordance with section 1.3 sentence 2 are taken into account. Furthermore, the provider reserves the right of ownership until all claims arising from the business relationship with the customer have been fulfilled. Der provider is entitled to prohibit the further use of the services for the duration of a delay in payment of the customer. This right can only be exercised by the provider for a reasonable period of time, usually a maximum of 6 months. This does not constitute a withdrawal from the contract. § 449 para. 2 BGB remains unaffected. Geben the customer or his customer the achievements back lies in the acceptance of the achievements no resignation of the offerer unless he has explained the resignation expressly. The same applies to the seizure of the reserved goods or of rights to the reserved goods by the supplier. Gegenstände under reservation of ownership or rights the customer may neither pledge nor transfer by way of security. The customer is only permitted to resell the goods as a reseller in the ordinary course of business under the condition that the supplier has effectively assigned to the customer his claims against his customers in connection with the resale and that the customer transfers ownership to his customers subject to payment. By concluding this contract, the customer assigns his future claims in connection with such sales against his customers to the supplier by way of security, who hereby accepts this assignment. Soweit the value of the Provider's security rights exceeds the amount of the secured claims by more than 20%, the Provider shall release a corresponding share of the security rights at the Customer's request.
1.5 The customer is obliged to impose the contractually agreed restrictions on the recipient in the event of a permissible transfer of rights of use for deliveries and services.
1.6 If the customer does not settle a due claim in full or in part on the contractual payment date, the provider may revoke agreed payment terms for all claims. The provider is also entitled to provide further services only against advance payment or against security by means of a performance guarantee from a credit institution or credit insurer licensed in the European Union. The advance payment must cover the respective billing period or - in the case of one-off payments - their remuneration.
1.7 If the customer is economically unable to fulfil his obligations towards the provider, the provider may terminate existing exchange contracts with the customer without notice by withdrawing from the contract or by giving notice of termination of the contract, even if the customer files for bankruptcy. § 321 BGB and § 112 InsO remain unaffected. The Customer shall inform the Provider in writing of any imminent insolvency at an early stage.
1.8 Fixed performance dates shall only be expressly agreed in a documented form. The agreement of a fixed performance date is subject to the proviso that the provider receives the services of his respective upstream suppliers in good time and in accordance with the contract.
2. Cooperation, duties to cooperate, confidentiality
2.1 The customer and the provider shall each designate a responsible contact person. Unless otherwise agreed, communication between the customer and the provider takes place via these contact persons. The contact persons must immediately bring about all decisions relating to the execution of the contract. The decisions shall be documented in a binding manner.
2.2 The customer is obliged to support the supplier as far as necessary and to create all the conditions necessary for the proper execution of the order in his business sphere. In particular, he will provide the necessary information and, if possible, enable remote access to the customer's system. If remote access is not possible for security reasons or other reasons, the affected periods shall be extended accordingly; the contracting parties shall agree on an appropriate regulation for further effects. The Customer shall also ensure that competent personnel are available to support the Provider. Soweit it is agreed in the contract that services can be provided on-site at the customer, the customer shall, at the request of the provider, provide sufficient workstations and work equipment free of charge.
2.3 Unless otherwise agreed, the customer shall ensure proper data backup and failure precautions for data and components (such as hardware, software) that are appropriate to their nature and significance.
2.4 The customer shall immediately report defects in writing in a comprehensible and detailed form, stating all information useful for the identification and analysis of the defect. In particular, the work steps which led to the occurrence of the defect, the form of appearance and the effects of the defect shall be indicated. Unless otherwise agreed, the corresponding forms and procedures of the provider will be used.
2.5 The Customer shall support the Provider reasonably upon request in examining and asserting claims against other parties involved in connection with the provision of services. This applies in particular to the supplier's right of recourse against upstream suppliers.
2.6 The contracting parties are obliged to maintain secrecy regarding business and trade secrets as well as other information designated as confidential which becomes known in connection with the execution of the contract. The disclosure of such information to persons who are not involved in the conclusion, execution or performance of the contract may only take place with the written consent of the other contracting party. Unless otherwise agreed, this obligation shall end five years after the respective information becomes known, but not before its termination in the case of a continuing obligation. Die Contractual partners will also impose these obligations on their employees and any third parties employed.
2.7 The contractual partners are aware that an electronic and unencrypted Kommunikation (e.g. via e-mail) is subject to security risks. With this type of communication, you will therefore not assert any claims based on the absence of encryption, unless encryption has been agreed beforehand.
3. Disruptions in the provision of services
3.1 If a cause for which the provider is not responsible, including strike or lockout, impairs adherence to the deadline ("disruption"), the deadlines shall be postponed by the duration of the disruption, if required, including an appropriate restart phase. A contractual partner shall inform the other contractual partner immediately of the cause of a disturbance that has occurred in his area and of the duration of the postponement.
3.2 If the expense increases due to a disruption, the provider can also demand payment for the additional expense, unless the customer is not responsible for the disruption and its cause lies outside his area of responsibility.
3.3 If the customer can withdraw from the contract due to improper performance by the provider and / or claim damages instead of performance or asserts such, the customer will declare at the request of the provider within a reasonable period of time in writing whether he asserts these rights or continues to desire the performance. In the event of rescission, the customer must reimburse the provider for the value of previously existing usage options; the same applies to deterioration due to intended use. Gerät the provider is in default with the provision of services, the compensation for damages and expenses of the customer due to the delay for each completed week of delay is limited to 0.5% of the price for that part of the contractual service, which due to the delay can not be used. The liability for default shall be limited to a maximum total of 5% of the remuneration for all contractual services affected by the default; in the case of continuing obligations, this shall refer to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply. This does not apply if a delay is due to gross negligence or intent on the part of the provider.
3.4 In the event of a delay in performance, the customer shall only be entitled to withdraw from the contract within the framework of the statutory provisions if the delay is attributable to the provider. If the customer asserts a justified claim for damages or reimbursement of expenses instead of performance on account of the delay, he shall be entitled to demand 1% of the price for that part of the contractual performance which cannot be used due to the delay for each completed week of the delay, but no more than a total of 10% of this price; in the case of continuing obligations in relation to the remuneration for the respective services affected for the full calendar year. In addition and with priority, a percentage of the remuneration agreed upon at the time of conclusion of the contract shall apply.
4. Material defects and reimbursement of expenses
4.1 The Provider warrants the contractually owed quality of the Services. There shall be no claims for material defects in the event of only an insignificant deviation between the Supplier's services and the contractual quality. Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the system environment, non-reproducible or otherwise verifiable software errors by the customer or in the event of damage resulting from special external influences not assumed under the contract. This shall also apply in the event of subsequent modification or repair by the customer or third parties unless this does not impede the analysis and elimination of a material defect. Clause 6 shall apply in addition to claims for damages and reimbursement of expenses.
4.2 The limitation period for material defect claims shall be one year from the start of the statutory limitation period. The statutory periods for recourse according to § 478 BGB remain unaffected. The same applies insofar as the law prescribes longer periods in accordance with § 438 para. 1 no. 2 or § 634a para. 1 no. 2 BGB (German Civil Code), in the case of a premeditated or grossly negligent breach of duty on the part of the provider, in the case of fraudulent concealment of a defect as well as in the cases of injury to life, limb or health as well as for claims arising from the Product Liability Act. Die Processing of notification of material defects by the customer by the provider only leads to the suspension of the statute of limitations, as far as the legal prerequisites for it are present. A restart of the statute of limitations does not occur as a result. Eine Subsequent performance (new delivery or subsequent improvement) can only have an influence on the limitation period of the defect triggering subsequent performance.
4.3 The provider may demand reimbursement of his expenses, provided that
a) he acts on the basis of a report without a defect being present, unless the customer could not recognize
with reasonable expenditure that no defect was present,
b) a reported malfunction is not reproducible or otherwise demonstrable by the customer as a defect,
c) additional expenditure is incurred due to improper fulfillment of the customer's obligations (see also
sections 2.2, 2.3, 2.4 and 5.2).
5. Defects of title
5.1 The provider is only liable for violations of third party rights by his service if the service is used in accordance with the contract and in particular in the contractually agreed, otherwise in the intended environment unchanged. Der provider is liable for violations of rights of third parties only within the European Union and the European Economic Area and at the place of contractual use of the service. Section 4.1 sentence 1 shall apply accordingly.
5.2 If a third party asserts to the customer that a service provided by the provider violates his rights, the customer shall notify the provider immediately. The provider and, if applicable, its suppliers are entitled, but not obliged, to defend the asserted claims at their own expense to the extent permitted. Der Customer is not entitled to acknowledge claims of third parties before he has given the provider a reasonable opportunity to defend the rights of third parties in any other way.
5.3 If the rights of third parties are infringed by a service of the provider, the provider shall, at his own discretion and at his own expense
a) to make the service free of infringement or
b) die The interests of the customer are taken into account appropriately.
5.4 Claims of the customer due to defects of title shall become statute-barred in accordance with Clause 4.2. Clause 6 shall apply additionally to claims for damages and reimbursement of expenses of the customer, Clause 4.3 shall apply accordingly to additional expenses of the provider.
6. General liability of the provider
6.1 The provider is liable to the customer at all times
a) for damages caused intentionally or grossly negligently by him or his legal representatives or vicarious
b) according to the product liability law
c) for damages resulting from injury to life, body or health for which the provider, its legal representatives or
vicarious agents are responsible.
6.2 The provider is not liable for slight negligence unless he has violated an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place or the violation of which endangers the achievement of the purpose of the contract and on the observance of which the customer may regularly rely on. The Liability for material damage and financial loss is limited to the foreseeable damage typical of the contract. This also applies to lost profits and missed savings. Liability for other remote consequential damages is excluded. Für the liability is limited to the contract value in the case of an individual case of damage, in the case of current remuneration to the amount of the remuneration per contract year, however not to less than € 50,000. Section 4.2 applies accordingly to the limitation period. The contracting parties may agree in writing on further liability at the time of conclusion of the contract, usually against separate remuneration. Priority shall be given to an individually agreed liability sum. Liability pursuant to Clause 6.1 shall remain unaffected by this paragraph. Ergänzend and with priority, the liability of the provider due to slight negligence from the respective contract and its execution for damages and reimbursement of expenses - regardless of the legal basis - is limited to the percentage of the remuneration agreed upon in this contract. Liability pursuant to Section 6.1 b) shall remain unaffected by this paragraph.
6.3 The provider is only liable for damages arising from a guarantee declaration if this has been expressly assumed in the guarantee. In the event of slight negligence, this liability shall be subject to the limitations set out in section 6.2.
6.4 If data or components (e.g. hardware, software) need to be restored, the provider shall only be liable for the expenditure required for the restoration with proper data backup and failure precautions by the customer. In the event of slight negligence on the part of the provider, this liability shall only arise if the customer has carried out a data backup and failure precaution appropriate to the type of data and components prior to the incident. This does not apply if this is agreed as a service of the provider.
6.5 Clauses 6.1 to 6.4 shall apply mutatis mutandis to claims for reimbursement of expenses and other liability claims of the customer against the provider. Sections 3.3 and 3.4 shall remain unaffected.
7. Data protection
These general terms and conditions are based on the current data protection declarations. These can be found in the respectively valid version (GDPR from 24.05.2018) on the website www.mySHOEFITTER.com.
8.1 The customer shall be responsible for observing the import and export regulations applicable to the deliveries or services, in particular those of the USA. In the case of cross-border delivery or service, the customer shall bear any customs duties, fees and other charges incurred. The customer will handle legal or official proceedings in connection with cross-border deliveries or services on his own responsibility, unless otherwise expressly agreed.
8.2 German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
8.3 The provider provides his services on the basis of his General Terms and Conditions. The general terms and conditions of the customer shall not apply, even if the provider has not expressly objected to them. Die Acceptance of the services by the customer is regarded as recognition of the terms and conditions of the provider under reference to the terms and conditions of the customer. Andere Terms and conditions are only binding if the provider has accepted them in writing; in addition, the terms and conditions of the provider apply.
8.4 Amendments and supplements to this contract shall only be agreed in writing. If the written form has been agreed (e.g. for cancellations, rescission), text form is not sufficient.
8.5 The place of jurisdiction vis-à-vis a merchant, a legal entity under public law or a special fund under public law is the registered office of the provider. The supplier may also sue the customer at his place of business.