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Peakboard GmbH
General Terms and Conditions (GTC)

§ 1 Scope of application and provider

  1. These General Terms and Conditions (“GTC”) of Peakboard GmbH (“Peakboard”) refer to agreements between Peakboard and companies or legal entities under public law – business customers – (“Customers”, together the “Parties”) regarding software (“Software”) and hardware (“Hardware”) developed by Peakboard and conclusively regulate the mutual rights and obligations of the Parties with regard to these agreements. These GTC only apply to companies. Peakboard will not conclude any contracts under these GTC with consumers within the meaning of § 14 BGB (German Civil Code).
  2. Our deliveries, services and offers are made exclusively on the basis of these GTC. The GTC shall therefore also apply to customers for all future business relationships, even if they are not expressly agreed again. Subsidiary agreements must be made in writing. The inclusion of general terms and conditions of a customer that contradict our general terms and conditions is hereby rejected.
  3. The contract language is exclusively German.

§ 2 Conclusion of contract

  1. The customer’s order must be placed in writing. Either by signing an offer issued by Peakboard or at least in writing by sending an e-mail with all relevant data for the processing of the order by Peakboard.
  2. The customer’s order constitutes an offer to Peakboard to conclude a purchase contract. Peakboard confirms receipt of the offer in writing; however, this does not yet constitute acceptance of the offer by Peakboard. A contract is not yet concluded by the confirmation.
  3. The customer must check the confirmation immediately for correctness and notify Peakboard immediately of any deviations from the order, as otherwise the content of the order confirmation shall be regarded as determining the contract.
  4. A purchase contract for the goods is only concluded when Peakboard expressly declares its acceptance of the purchase offer or Peakboard sends the goods to the customer – without prior express declaration of acceptance.

§ 3 Prices
All prices are net prices. Shipping costs within Germany are included; Peakboard reserves the right to charge shipping costs for deliveries outside Germany. Peakboard reserves the right to change the list prices valid at the time of conclusion of the contract at any time during the term of the contract. A change to the list price is valid for both parties from four weeks after written notification.

§ 4 Payment

  1. Delivery is always made on account. Invoices are due 30 days after receipt without deduction. The invoice amount must be transferred to the bank account specified on the invoice within this period. The invoice shall be deemed to have been received two days after the invoice date.
  2. If payment has not been received within this period, Peakboard shall be entitled, without prejudice to further rights, to charge interest on arrears at the statutory rate.

§ 5 Offsetting / Right of retention

  1. The customer shall only have a right of set-off if his counterclaim has been legally established and is undisputed by Peakboard.
  2. The customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship, is undisputed or has been legally established.

 

§ 6 Delivery

  1. Unless otherwise agreed, the goods shall be delivered to the address specified by the customer.
  2. Peakboard is not obliged to make a delivery if this is or becomes impossible due to force majeure. Payments already received for the delivery will be refunded immediately.
  3. Peakboard may refuse delivery if the expense of delivery is disproportionate.
  4. Partial deliveries and partial services with corresponding invoicing by
    Peakboard are permissible insofar as this is reasonable for the customer.
  5. Peakboard reserves the right to choose the appropriate form of shipment. The transportation risk shall be borne in full by the customer, even in the case of carriage paid delivery.
  6. Any transport damage and transport losses must be reported immediately by the customer. Otherwise the delivery shall be deemed approved.
  7. In the event of a non-contractual or non-delivery by Peakboard, the customer must set Peakboard a written deadline of two weeks to provide the service. The customer is only entitled to withdraw from the contract after this grace period has expired.
  8. The scope of delivery does not include, in particular, the installation of the products at the customer’s premises, the training of the customer’s employees in the use of the contractual software, telephone customer support and other maintenance and consulting services. Such services may be ordered separately by the customer on the basis of a separate maintenance contract in accordance with Section 9 of these GTC.

§ 7 Retention of title

  1. Peakboard retains title to the goods until all claims arising from the current business relationship have been settled in full. Prior to the transfer of ownership of the reserved goods, pledging or transfer by way of security is not permitted.
  2. The customer may resell the goods in the ordinary course of business. In this case, the customer hereby assigns to Peakboard all claims in the amount of the invoice amount that accrue to him from the resale. Peakboard accepts the assignment, but the customer is authorized to collect the claims. If the customer does not properly meet his payment obligations, Peakboard reserves the right to collect claims itself.
  3. If the reserved goods are combined and mixed, Peakboard shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing.
  4. Peakboard undertakes to release the securities to which it is entitled upon request to the extent that the realizable value of its securities exceeds the claims to be secured by more than 10%. Peakboard shall be responsible for selecting the securities to be released.

§ 8 Warranty

  1. Warranty for common errors: Peakboard expressly points out that, given the current state of technology, it is not possible to develop software products in such a way that they are completely error-free. A warranty for common software errors which do not or only insignificantly impair the usability of the contractual software is therefore not assumed.
  2. Warranty period: The warranty period is 12 months from delivery. An extension of the scope of use has no influence on the limitation period.
  3. Rectification: Peakboard shall rectify defects in the contractual software within the warranty period following corresponding notification of defects by the customer, provided that the notification of defects satisfies the requirements of Section 4 below. The defect shall be remedied at Peakboard’s discretion either by eliminating the defect (rectification) or by supplying a defect-free replacement product. If the defect cannot be rectified within a reasonable period of at least four weeks after receipt of the notice of defect or if the rectification or replacement delivery is deemed to have failed for other reasons, the customer may, at its discretion, (i) reduce the purchase price, (ii) withdraw from the contract or (iii) demand compensation for damages or reimbursement of futile expenses within the scope of the limitations of liability. The rectification or replacement delivery shall only be deemed to have failed if Peakboard has successfully and adequately rectified the defect.
  4. Notification of defects: The customer must report defects in writing in a comprehensible and detailed form, stating all information useful for identifying and analyzing the defect. In particular, the work steps that led to the occurrence of the defect, the manifestation and the effects of the defect must be stated. The notification of defects must enable Peakboard to identify, reproduce and rectify the defect.
  5. Exclusion of warranty: The warranty shall not apply if Customer carries out a modification or processing of the products not authorized by Peakboard, unless Customer proves that the defect in question was not caused in whole or in part by such a modification and that the elimination of the defect is not made more difficult by the modification. The warranty shall also not apply if the defects are caused by faulty installation by the customer.
  6. Compensation: In justified warranty cases, the customer will not be charged any compensation or costs. However, if it turns out that a warranty case did not exist, the customer is obliged to remunerate Peakboard for the services in accordance with the general remuneration rates in the valid price list.

§ 9 Software maintenance
The conditions for software maintenance by Peakboard can be viewed in the currently valid maintenance conditions. These maintenance conditions will be made available to the customer on request.

§ 10 Duty to cooperate

The customer shall support Peakboard in the fulfillment of the contractual performance obligations free of charge. He shall in particular

  1. designate two responsible contact persons upon conclusion of the contract, who have all decision-making powers and authorizations required for the purpose of implementing this contract and have sufficient knowledge of the Peakboard products;
  2. provide Peakboard with dial-in access to its system for remote access on request in accordance with Peakboard’s specifications;
  3. in the event of fault reports, provide Peakboard with the symptoms that have occurred and all information required to rectify the fault;
  4. support Peakboard to the best of its ability in the search for the cause of the fault and, if necessary, encourage its employees to cooperate with the employees commissioned by Peakboard, even beyond normal working hours;
  5. observe the suggestions for troubleshooting and fault rectification provided by Peakboard;
  6. and keep all data used or obtained in connection with the contractual software available in machine-readable form as a backup copy, which enables the reconstruction of lost data with reasonable effort.

§ 11 Liability

  1. Limitation of liability: Peakboard shall only be liable for all damages arising, whether from breach of contract or tort, in accordance with the following provisions.
  2. Intent: In the event of intent, claims under the Product Liability Act, assumption of a guarantee of quality, fraudulent concealment of a defect and in the event of injury to life, limb or health, Peakboard shall be liable in accordance with the statutory provisions.
  3. Gross negligence: In the event of gross negligence, Peakboard’s liability shall be limited to compensation for typical foreseeable damage; this limitation shall not apply if the damage was caused by senior employees of Peakboard.
  4. Simple negligence: In the event of simple negligence, Peakboard shall only be liable if a material contractual obligation has been breached or in the event of default or impossibility. In these cases, liability is limited to the typical foreseeable damage.
  5. Loss of data: Notwithstanding the above limitations of liability, Peakboard shall only be liable for loss of data if the customer has ensured that the destroyed data can be reconstructed with reasonable effort from data material held in machine-readable form. Liability for loss of data shall be limited to the typical restoration costs. The provisions of this paragraph 5 shall not apply in the cases of paragraph 2 above.
  6. Employees: Insofar as Peakboard’s liability is excluded or limited, this also applies to the liability of Peakboard’s employees, representatives and vicarious agents.

§ 12 Confidentiality

  1. Importance of trade secrets: Customer acknowledges that the structure, function and in particular the source code and the interfaces of the contractual software constitute trade secrets of Peakboard, the disclosure of which to third parties can lead to a significant impairment of Peakboard’s business activities.
  2. Confidentiality, prohibition of disclosure: Customer shall treat as confidential all information about the structure, function and in particular the source code, the interfaces and all information about other confidential processes, in particular business or trade secrets of Peakboard, of which it becomes aware in the course of the contractual relationship and shall neither disclose nor utilize them in any other way. Peakboard shall also treat Customer’s business and trade secrets confidentially.
  3. Customer’s employees: Customer undertakes to obligate all employees who have access to or use the contractual software to maintain confidentiality in writing and to provide Peakboard with written proof of this upon request.
  4. Continued validity: The confidentiality obligation under this paragraph 2 shall continue to apply for a period of five years after termination of the respective contract.

§ 13 Miscellaneous

  1. Amendments and/or additions to the contracts and/or these GTC must be made in writing to be effective.
  2. If individual provisions of these GTC are or become invalid in whole or in part or if the contracts contain a loophole, this shall not affect the validity of the contracts as a whole or the remaining provisions of the respective contract. In the aforementioned case, both parties undertake to agree on a provision that best meets the interests of both parties, taking into account the agreements made in the respective contract.
  3. Applicable law: The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
  4. The place of jurisdiction for a merchant, a legal entity under public law or a special fund under public law is Stuttgart.
  5. Reference customer agreement: The customer agrees to be named by Peakboard as a reference customer.

Status: 26.07.2018

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