General Terms and Conditions (GTC)
Stand: 09.02.2023
§ 1 Scope of application, definitions
(1) For the business relations between the
PHCOM GmbH
(hereinafter referred to as the "Provider") and the Customer as an entrepreneur (hereinafter referred to as the "Customer") shall be governed exclusively by the following General Terms and Conditions in the version valid at the time of the order. The supplier does not recognize any terms and conditions of the customer that are contrary to or deviate from our terms and conditions, unless the supplier has expressly agreed to their validity in writing.
(2) The customer is an entrepreneur if he acts as a natural person or legal entity or partnership with legal capacity when concluding the contract in the exercise of his commercial or self-employed activity.
(3) The Provider has the right to change the General Terms and Conditions at any time. The customer will be informed by the provider in the event of any changes. The Customer shall have the right to object to the amendment in writing within four weeks of the notification of the amendment. If the Customer does not object within the specified period, the amendment to the General Terms and Conditions shall be deemed approved. The Provider shall explicitly inform the Customer in writing or by email that in the absence of a timely objection, the amended General Terms and Conditions shall become valid.
§ 2 Subject Matter, Software Transfer
(1) The subject matter of this agreement is the transfer of the software delivered by PHCOM (hereinafter referred to as "SOFTWARE") by the provider for use by the customer via a remote data connection.
(2) The provider shall make the SOFTWARE available to the customer in the respective current version via the Internet against payment for the duration of this contract. For this purpose, the provider shall set up the SOFTWARE on a server that is accessible to the customer via the Internet. The provider does not owe the establishment and maintenance of the data connection between the customer's IT system and the transfer point operated by the provider.
(3) The Provider shall provide the aforementioned services with an overall availability of 98.5%. The availability is calculated on the basis of the time allotted to the respective calendar month in the contractual period less maintenance work to be performed. The Provider is generally entitled to carry out maintenance work on working days between 10:00 p.m. and 6:00 a.m. for a total of five hours per calendar month. During the maintenance work, the aforementioned services may not be available.
(4) The respective current functional scope of the SOFTWARE results from its current performance description on the website of the provider at www.phcom.de and the subsequent pages linked there.
(5) The provider shall immediately eliminate all software errors according to the technical possibilities. An error shall be deemed to exist if the SOFTWARE does not fulfill the functions specified in the service description, delivers faulty results or does not function properly in any other way, so that the use of the SOFTWARE is impossible or limited.
(6) The Provider shall continuously develop the SOFTWARE and shall improve it by continuous updates and upgrades.
§ 3 Rights of use of the SOFTWARE
(1) The Provider grants the Customer the non-exclusive and non-transferable right to use the contractual SOFTWARE for the duration of the contract within the scope of the present ASP or SaaS services as intended.
(2) The customer may process the SOFTWARE only to the extent that this is covered by the intended use of the SOFTWARE according to the respective current service description.
(3) The customer may only copy the SOFTWARE as far as this is covered by the intended use of the software according to the respective current service description. Necessary duplication includes loading the SOFTWARE into the RAM on the provider's server, but not the even temporary installation or storage of the SOFTWARE on data carriers (such as hard disks or similar) of the hardware used by the customer.
(4) The customer is not entitled to make the SOFTWARE available to third parties for use against payment or free of charge. Thus, the customer is expressly not permitted to sublet the SOFTWARE.
§ 4 Training and support
(1) Details of support and training measures are set out in the individual contract existing between the parties.
(2) The Provider shall provide comprehensive information on the introduction and operation of the software on the Company's own website. Any further training against payment shall be subject to individual agreement.
(3) The Provider shall provide the Customer with email support during normal business hours to assist with technical questions. The sole purpose of the support service is to assist the Customer in using the Provider's services owed under this Agreement. Customer inquiries shall be processed in the order in which they are received. Fault reports are to be submitted to the fault center service@phcom.de. The reported malfunctions must be described in detail and thus basically reproducible.
§ 5 Data storage and transfer
(1) The customer has the possibility to store data on the virtual data server set up for him by the provider, which he can access in connection with the use of the SOFTWARE provided. The provider owes only the provision of storage space for use by the customer. The Provider shall not be subject to any custody or safekeeping obligations with regard to the data transmitted and processed by the Customer. The customer shall be responsible for compliance with the retention periods under commercial and tax law.
(2) The scope of the storage space available to the customer shall be defined in the individual contract. The Customer shall not be entitled to transfer this storage space to a third party for use, in part or in full, against payment or free of charge. The customer is also obligated not to store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties.
(3) The customer may store the data on the data server within the scope of a database takeover as well as within the scope of the ongoing use of the SOFTWARE. In case of a takeover of the data from a database of the customer, the customer has to inform the provider about the details of the database management system required for the takeover including any test data, if necessary after separate agreement, at least four weeks before the intended takeover of the data. The data to be taken over shall then be provided to the Provider on a suitable data carrier or by way of remote data transmission at least five working days before the intended use of the data. The Provider shall support the Customer in the transfer of the data at the fees specified for this in the price list valid at the time of conclusion of the contract.
§ 6 Processing of personal data
(1) If the Customer processes personal data within the scope of this contractual relationship, the Customer shall be responsible for compliance with the provisions of data protection law. The Provider shall process the data transmitted by the Customer only within the scope of the Customer's instructions. If the Provider is of the opinion that an instruction of the Customer violates data protection regulations, the Provider shall notify the Customer thereof without undue delay. Details of the commissioned data processing shall be regulated separately within the framework of a commissioned processing agreement existing between the parties.
(2) The Provider has obliged its employees to maintain data secrecy.
§ 7 Data output
(1) During the term of the contract, the customer has the option at any time to download the customer data collected and stored by him via his customer account by remote data transmission in Excel data format and to save it on suitable data carriers.
(2) After termination of the contractual relationship, the Provider shall surrender a copy of the data stored on the Customer's storage space upon the Customer's request. The data shall be released by remote data transmission in the data format in which the data is stored on the data server, or, in deviation therefrom, in a data format agreed upon between the Provider and the Customer.
(2) The Provider shall delete the Customer Data held by it 14 days after the data has been handed over to the Customer in connection with the termination of the contract, unless the Customer notifies it within this period that it requests the surrender of the Customer Data or that the data already available to it is unreadable or incomplete. Failure to notify shall be deemed consent to the deletion of the data. The Provider shall specifically draw the Customer's attention to the significance of its conduct at the end of the contractual relationship.
§ 8 Data backup
(1) The Provider shall perform a working day backup of the Customer's data on the data server. The data backup shall be carried out on a rolling basis in such a way that the data backed up for one day of the week is overwritten in the data backup carried out for the following same day of the week. The same principle is used for a weekly backup, where the data is also overwritten on a rolling basis after four weeks have elapsed. The regular times of the data backup are coordinated with the customer.
(2) Notwithstanding the obligation of the Provider to back up data, the Customer itself is responsible for entering, maintaining and backing up its data and information required to use the SOFTWARE.
§ 9 Cooperation of the Customer
(1) The Customer shall be responsible for establishing a data connection between the workstations intended for use by the Customer and the data transfer point defined by the Provider. The Provider shall be entitled to redefine the data transfer point if this is necessary to enable smooth use of the services by the Customer. In this case, the Customer shall establish a connection to the newly defined handover point.
(2) The contractual use of the services of the provider depends on the fact that the hardware and software used by the customer, including possibly required computers, routers, data communication equipment, etc., meet the minimum technical requirements for the use of the currently offered software version and that the users authorized by the customer to use the SOFTWARE are familiar with the operation of the software.
(3) The configuration of the IT system is the Customer's responsibility.
(4) The Customer shall ensure regular backup of its Customer Data. For this purpose, the Customer has the option at any time to download and save the stored Customer data via his Customer account by remote data transmission in Excel data format. The obligations of the provider in terms of § 8 (1) remain unaffected.
§ 10 Rights
(1) The contents stored by the Customer on the storage space intended for him may be protected by copyright and data protection laws. The Customer hereby grants the Provider the right to make the content stored on the server accessible to the Customer when the Customer queries it via the Internet and, in particular, to reproduce and transmit it for this purpose and to be able to reproduce it for the purpose of data backup.
(2) The Provider shall be entitled to keep the data in a backup data center. In order to eliminate disruptions, the Provider shall also be entitled to make changes to the structure of the data or the data format.
(2) The Customer is not entitled to allow third parties to use the Provider's services. Third parties are not those who are vicarious agents of the Customer and use the services free of charge, such as employees of the Customer, freelancers within the scope of the contractual relationship, etc.
§ 11 Remuneration
(1) The Customer undertakes to pay the Provider the agreed monthly fee plus statutory VAT for the provision of the SOFTWARE and the granting of the storage space. Unless otherwise agreed, the remuneration is based on the price list of the provider valid at the time of the conclusion of the contract.
(2) Objections to the billing of the services provided by the Provider shall be raised by the Customer in writing with the office indicated on the invoice within a period of eight weeks after receipt of the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. The Provider shall specifically draw the Customer's attention to the significance of its conduct when sending the invoice.
§ 12 Contract term
(1) The contract is concluded for an indefinite period. Unless individually agreed between the parties, the contractual relationship shall commence with the application and registration by the customer and may be terminated by the contracting parties with two weeks' notice to the end of the respective month.
(2) The right to terminate for cause remains unaffected. In particular, the provider is entitled to terminate the contract without notice if the customer does not make due payments despite a reminder and a grace period or if the customer violates the contractual provisions regarding the use of the present SOFTWARE. Termination without notice requires in any case that the other party is warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.
(3) Any notice of termination must be in text form.
§ 13 Liability for defects
(1) If the services rendered by the Provider are defective because their suitability for the contractual use is not only insignificantly suspended, the Provider shall be liable for material defects and defects of title in accordance with the statutory provisions. The Provider shall only be liable for defects in the software that were already present when it was provided to the Customer if the Provider is responsible for these defects.
(2) The Customer shall notify the Provider of any defects without undue delay, describing the defect in as much detail as possible.
§ 14 Scale and Limitation of Liability
(1) The Provider shall be liable for intent and gross negligence in accordance with the statutory provisions. The Provider shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb or health. The provider shall only be liable for foreseeable damage, the occurrence of which must typically be expected. Material contractual obligations are those obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely.
(2) The Provider shall not be liable for the loss of data insofar as the damage is due to the Customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
§ 15 Amendment of the terms of contract
Unless otherwise specifically regulated, the Provider shall be entitled to amend or supplement these Terms and Conditions of Contract as follows. The Provider shall notify the Customer of the amendments or supplements in text form no later than six weeks before they take effect. If the customer does not agree with the changes or additions to the contractual terms and conditions, he may object to the changes with a notice period of one week from the date on which the changes or additions are intended to take effect. The objection must be made in text form. If the customer does not object, the changes or additions to the contractual conditions shall be deemed to have been approved by him. With the notification of the changes or additions to the contractual terms and conditions, the Provider shall specifically draw the Customer's attention to the intended significance of his conduct.
§ 16 Final provisions
(1) This contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive place of jurisdiction for disputes arising from this contract shall be Stuttgart.
(3) The assignment of claims shall only be permitted with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld. The provision of § 354a HGB shall remain unaffected.
(4) A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.
(5) The contracting parties may only offset claims that have been legally established or are undisputed.
(6) All amendments, supplements and terminations of contractual agreements shall be made in writing, as shall any waiver of the written form requirement, unless this Agreement provides for text form.