General Terms and Conditions
§ 1 General
a) Area of Validity
The following General Terms and Conditions shall apply for all business relations between Aimeos GmbH, Rennbahnstr. 32, 22111 Hamburg, represented by its General Manager Mr. Norbert Sendetzky (hereafter called: Aimeos GmbH) and its customers, in their current version at the time of closing the contract. General Terms and Conditions to the contrary are explicitly objected to.
b) Contract Language
Contract language is German. Clients are exclusively business owners in the sense of § 14 German Civil Code.
c) Close of Contract upon Individual Order Commissioning
Close of Contract for individual concept solutions does not take place via the Internet but individually through offer and offer acceptance (e.g. by email). The contract text body is not stored since the contract’s content is specifically customized based on the agreement reached.
d) Close of Contract upon Maintenance and Expansions
Upon commissioning of maintenance/ordering of add-ons through this Internet site, the order process consists of a total of four (4) steps. In the first step, the client chooses the desired maintenance service/add-on. In the second step, the client enters their data including billing address and, if necessary, a different delivery address. In the third step, the client chooses their payment method. In the fourth step, the client has the opportunity to double-check all data (e.g. name, address, payment method, desired maintenance service/add-on) and, if necessary, correct data entry errors before they confirm their commissioning by clicking the button “Buy Now”. This order signifies the customer’s legally binding contract offer. Aimeos GmbH will confirm the receipt of the commissioned order immediately. The confirmation receipt does not represent a legally binding acceptance of the commissioning. Aimeos GmbH is entitled to legally accept the commissioned contract offer within two (2) days after receipt of the commissioning by sending the invoice. This acceptance closes the contract between Aimeos GmbH and its client. The client data are stored automatically at the end of the order. Furthermore, the client can view the essential contract parts through their account. The contract text body is stored by Aimeos GmbH and is sent to the client in text form (e.g. email, facsimile or regular mail) after sending their order in addition to the General Terms and Conditions at hand and the client information.
e) Supplemental changes of the General Terms and Conditions
Aimeos GmbH is entitled and authorized to subsequently change and modify these General Terms and Conditions towards existing business relationships, as required by legal changes in legislation and jurisdiction or other circumstances, that the contractual equivalence is not only negligible offset. A subsequent modification or change of the General Terms and Conditions will become effective when the customer does not object to the notification of the modification and changes within six (6) weeks. Aimeos GmbH will expressly notify the customer at the beginning of the period about the result of their silence as acceptance of the contract modification and changes, and grants them the option to deliver an exclusive letter of expression during that period. If the customer objects on time, Aimeos GmbH as well as the customer can invoke an extraordinary termination of the contract agreement.
§ 2 Description of Service
Aimeos GmbH offers its clients e-commerce solutions for online shop on the basis of open source software. Aimeos GmbH conceptualizes, implements and maintains the shop solutions on the basis of Aimeos (Aimeos.org) for businesses. Furthermore, Aimeos GmbH offers maintenance contracts in various scopes to its clients and partner businesses. In addition, clients can acquire add-ons and extensions for the shop system through the Aimeos GmbH website.
b) Service Performance
Aimeos GmbH is entitled to, partially or in whole, have Third-Parties fulfill this contract.
c) Performance Delays
Performance delays based on acts of God/force majeure and extraordinary and non-foreseeable events, which cannot be prevented even with extreme precaution by Aimeos GmbH (especially including: strikes, regulatory action or court orders, and instances of incorrect or improper self-delivery despite the appropriate covering transaction to that effect), are not to be imputed to Aimeos GmbH. They entitle Aimeos GmbH to postpone delivery by the time period of the hindering circumstance.
d) Cancellation of Contract
At non-availability, based on the above-mentioned reasons, Aimeos GmbH may cancel the contract. Aimeos GmbH commits to inform the customer without delay about the non-availability and shall reimburse in return any services already rendered.
§ 3 Payment
All prices are exclusive Value-Added Tax.
b) Delay of Payment
The customer shall be in delay of payment when payment has not been received by Aimeos GmbH within two weeks after receipt of invoice. In case of delay of payment, interest in the amount of nine percentage points above the European Central Bank’s base interest rate. Should the customer be delayed with their payments, then Aimeos GmbH reserves the right to charge overdue fees in the amount of EUR 2.50. The assertion of further damages shall remain undisputed.
c) Right of Retention
The enforcement of a right of retention is only available to the customer for such counterclaims which are due and based on the same legal relationship as the customer’s obligation.
d) SEPA Payments and Pre-Notification
Invoices can be settled by SEPA direct debit procedure. The buyer therefore awards a corresponding mandate to Aimeos GmbH (SEPA-Basis-Mandate, or if possible a SEPA-Company-Mandate). If invoices from services and deliveries are settled by SEPA Basis Direct Debit Procedure / Company Direct Debit Procedure, the customer receives a pre-notification about the Direct Debit. The Pre-Notification Period is shortened for B2B business-to-business SEPA direct debits to on (1) day. With CORE, the standard direct debit, this period is shortened for a first debit (FRST)/one-off debit (OOFF) to five (5) days and with recurring debit (RCUR) shortened to 2 days. The customer assures sufficient funds in the account. Expenses which occur due to the non-payment or back posting of the direct debit, are charged back to the customer, as long as the non-payment or back posting was not caused by Aimeos GmbH.
§ 4 Contract Length and Cancellation
The minimum contract length for maintenance contracts is one (1) year. Clients have the opportunity to cancel the contract within one month of the end of the contract term. Should a client not cancel on time, the maintenance contract is extended for another year. The client’s or Aimeos GmbH’s extraordinary cancellation remains unaffected. Cancellations require a written text form for their validity.
§5 Responsibility of the Customer
a) Content of Customer Order
The customers themselves are responsible for content and accuracy of the data transmitted. Additionally, the customer is obliged not to transmit any data whose content violate the rights of third parties or against existing laws. The customer confirms through the submitting of data to Aimeos GmbH to have adhered to the copyright regulations.
The supplier holds Aimeos GmbH free from all claims which are made by third parties for such breaches against Aimeos GmbH. This includes also expense reimbursement in the case of necessary legal representation.
c) Data Storage
The customer is jointly responsible for the storage of the transmitted information. Aimeos GmbH cannot be held responsible for the loss of information transmitted by the customer since Aimeos GmbH does not assume responsibility for a general data storage guarantee.
§ 6 Service Contract Warranty
a) Warranty Claims
If service is flawed and the customer requires supplementary performance, Aimeos GmbH can choose to remedy the flawed service or create a new service. If flaws are not rectified after at least two attempts, the customer has the right to a withdrawal or price reduction.
b) Rights regarding Insignificant Deficiencies
In the case of only insignificant deficiencies, the customer is only entitled to the right of an appropriate price reduction, under exclusion of right of withdrawal.
c) Damages for Deficiencies
Damage resulting from improper handling or usage cannot be warranted. Damages for deficiencies are warranted only in the event of malice or gross negligence. This exclusion does not affect the liability for damage resulting from loss of life, bodily injury or damage to health. The regulations of the product liability law remain untouched from the liability disclaimer.
d) Rights regarding Insignificant Deficiencies
If only an insignificant deficiency exists, the customer is only entitled to the right of an appropriate price reduction of the agreed remuneration under exclusion of the right to withdraw.
e) Statute of Limitations
Warranty claims come under the statute of limitations one (1) year after transfer of risk.
§ 7 Copyrights
a) Copyright Protection
The software made available as part of the contract closed and the created designs are copyright protected. All rights stemming from copyright are solely due to Aimeos GmbH. The copyright covers especially the complete program code, the software’s structure as well as the appearance and the software’s application design. Any kind of altering reproduction, distribution, modification, etc. is not permitted without express consent. This also applies as far as the created project is customized based on suggestions or cooperation by the customer. Aimeos GmbH reserves the right to use or contribute the source code (if not customer or project specific) or parts thereof in the context of the used Open Source software.
b) Limitation of Usage Rights
The customer is prohibited to use the software and its designs for anything other than the contractually agreed purposes and projects.
c) Updates and Upgrades
Aimeos GmbH is entitled to change, modify, and alternate the software as part of the (necessary) updates and upgrades. These modifications are also subject to copyright protection.
§ 8 License Agreement
a) Licensing for Services
Aimeos GmbH will transfer all necessary usage rights to the customer upon settlement of all contract applicable invoices to the extent as it is contractually agreed or as it arises from noticeable order circumstances for Aimeos GmbH. If in doubt, Aimeos GmbH fulfills the obligation through concession of non-exclusive, indefinitely unlimited servitude.
b) License Conditions
Each use going above and beyond, especially the processing, requires Aimeos GmbH’s agreement. The customer is not allowed to sublicense nor distribute nor reproduce.
Aimeos GmbH reserves the right to claim the resulting damage for each violation against the contractual license conditions, especially the violation of copyright law.
§ 9 Availability
Aimeos GmbH does not guarantee that offered services are available at all times. Aimeos GmbH does also not guarantee that the offered services or parts thereof are available or made available and be used from any location.
§ 10 Liability
a) Liability exemption disclaimer
Aimeos GmbH, and its legal representatives and vicarious agents, shall only be liable for intent or gross negligence. As far as considerable contract duties (consequently such duties whose adherence are of necessary meaning for the attainment of contract purposes) are concerned, even slight negligence is covered. Liability is limited in this case to foreseeable, contract typical, immediate average damages. Towards business owners, Aimeos GmbH shall only be liable in the case of a grossly negligent violation against insignificant contract duties only in the amount of the foreseeable, contract typical, immediate average damage.
b) Retention of Liability
The aforementioned liability exemption disclaimer shall not concern liability for damage to loss of life, bodily injury or damage to the health of a person. Regulations of the German Product Liability Law shall also be untouched by the exclusion from liability.
c) Data Storage Protection
Aimeos GmbH conducts effective data storage protection within the scope of service performance, but does not guarantee a general data protection guarantee for the data submitted by the user. The users are also responsible themselves to save and store appropriate data back-ups in regular intervals and to prevent loss of data. Aimeos GmbH exercises appropriate care regarding the performance of services and will conduct data storage with the required expert knowledge. Aimeos GmbH does not assure, however, that the saved and stored content or data, which are accessed by the user, are not accidentally damaged or falsified, lost or otherwise removed.
§ 11 Final clause
a) Place of Jurisdiction
It is agreed that the exclusive place of jurisdiction for all litigation proceedings based on this contract shall be the registered office of Aimeos GmbH in Hamburg, insofar as the customer is a merchant, legal entity under public law or special fund under public law, or insofar as the customer does not have a place of jurisdiction in the Federal Republic of Germany.
b) Governing Law
Unless mandatory legal provisions based on the customer’s right of domicile do not prevent it, it shall be agreed upon that German law shall valid excluding the UN Convention on the International Sale of Goods.
c) Severability Clause
Should individual terms of this contract become invalid or ineffective, it shall not infringe on the validity of the remaining General Terms and Conditions.