Note: Please read these Terms and Conditions attentively. Customer orders can only be processed if the customer / client has agreed to this. Contents: Terms and Conditions; Appendix 1: Information sheet on the commitment declaration in accordance with Article 5 GDPR – hand it out!

Contents

 

Terms & Conditions


Note: Please read these Terms and Conditions attentively. Customer orders can only be processed if the customer / client has agreed to this.

§ 1 Scope of Application

The following General Terms and Conditions apply to the business rela­tionship between Fairflexx Digital GmbH and the customer / client. These General Provisions apply to all com­ponents of the contract between the client and Fairflexx as well as to all additional and subsequent orders.

 

§ 2 Offer, contract conclusion and subscription terms

  1. The scope of delivery and/or service of Fairflexx Digital GmbH is defined in the Fairflexx Digital GmbH written offer. If Fairflexx Digital GmbH confirms the order in writing and the order con­fir­ma­tion differs from the order, the contract is con­clud­ed on the basis of the order confirmation, unless the customer objects in writing within 8 (eight) days from receipt.
  2. Amendments in the offers due to errors and printing errors, including in relation to prices and technical spec­i­fi­ca­tions, are reserved to Fairflexx Digital GmbH. Brochures and other advertising materials contain a general and non‑binding de­scrip­tion of the Fairflexx Digital GmbH products and they do not become part of the contract.
  3. Permits from public authorities or other third parties, if neces­sary, are required for the conclusion of the contract and the performance of the service shall be obtain from the client. Fairflexx Digital GmbH is not obliged to provide services until the ne­c­essary permits have been legally granted. The customer under­takes to inform the user immediately of any autho­ri­sation re­quirements, to indemnify and to keep harmless in this regard.

 

§ 3 Performance, performance time

  1. Service periods are non-binding unless anything else is explicitly agreed in writing. If, after conclusion of the contract, an amend­ment or supple­men­tation of the service is made by a mutual agree­ment, the period of performance is auto­mat­i­cal­ly extended by a reasonable period of time.
  2. The service is provided in a manner chosen by Fairflexx Digital GmbH, which is customary in the industry, within the normal business hours. If, for rea­sons not attributable to the user, a service is provided outside normal business hours, sur­charges will be invoiced separately according to the price list of Fairflexx Digital GmbH ap­pli­ca­ble locally at the time of the service.
  3. The delivery of the service is at the expense and risk of the client. The risk passes to the customer when the object of the contract is handed over to the transporter. The costs for special packag­ing are to be borne by the customer. According to a separate agreement and at the expense of the customer, the Fairflexx Digital GmbH service dispatch can be insured against breakage, fire damage and destruction.
  4. In case of an acceptance delay, the customer shall be liable to interest in the storage of Fairflexx Digital GmbH without pre­ju­dice to any further claims. Fairflexx Digital GmbH is also en­ti­tled to claim or retain 5% of the pur­chase price as a con­tri­bu­tion for pro­ces­sing in case of a delay in accep­tance. We re­serve the right to claim any further damage.
  5. The customer is liable for the fact that the necessary technical pre­req­ui­sites for the provision of the ser­vice are met. The client gua­ran­tees that the technical equip­ment, such as supply lines, cabling, hardware, net­works in technically perfect and opera­tional condition and are com­pa­tible with the performance of Fairflexx Digital GmbH.
  6. The customer is obliged to pay Fairflexx Digital GmbH travel expenses in connec­tion with the provision of the service in accordance with the price list ap­pli­cable locally at the time of the provision of the service accor­ding to actual effort, if this expense is incurred and not already included in the offer.
  7. If, for reasons beyond the re­pre­sen­ta­tion of Fairflexx Digital GmbH, additional works or services not included in the scope of the contract are required in order for the user to be able to perform his contractual service, Fairflexx Digital GmbH shall be deemed to have been provided by the customer, responsible for their imple­men­tation.
  8. The customer is entitled to use the service after full payment of the agreed fee, at the announced place, for the an­nounced purpose and in accordance with the contract. Any further use is prohibited to the cus­tomer and therefore it requires the prior written consent by Fairflexx Digital GmbH.

 

§ 4 Right of Cancellation

Consumers have a statutory right of cancellation. The contract is concluded on the basis of the order confir­mation, as long as the customer hasn’t can­celled it in writing within 8 (eight) days from receipt.

 

§ 5 Prices / fee and shipping costs (self-register); Could look like this if neces­sary – I would put it as follows:

  1. Prices are in EURO excluding statu­tory taxes, duties, customs or other fees.
  2. In the case of a permanent business relationship, subsequent orders are placed at the current prices appli­cable at the time of the order.
  3. Significant changes in the calcu­la­tion basis after the contract con­clu­sion (in parti­cular: wages, energy, materials, exchange rates, etc.) Fairflexx Digital GmbH entitles to adjust prices retrospectively.
  4. Payment delays of any kind and the opening of insolvency proceedings or non-opening of insolvency pro­ceed­ings in the absence of assets result in the loss of all rebates and discounts granted to the principal.
  5. The remuneration for periodic lyri­cal services is guaranteed in value according to the Harmonised Index of Consumer Prices of the EU (HICP). The month when the contract was concluded is considered as a starting point.
  6. Fairflexx Digital GmbH is entitled to charge 30% of the total claim after the con­tract conclusion, 40% when deliv­er­ing and 30% after the per­for­mance. All the invoices are due for the im­me­di­ate pay­ment upon the invoice receipt.
  7. The customer undertakes to use the software exclusively in accordance with the software regulations. The use of any supplied third-party soft­ware is subject to the applicable contractual provisions of the respective manufacturers.

 

§ 6 Payment and Delivery Conditions

  1. Unless anything else is agreed, the delivery shall be made from the com­pa­ny headquarters to the delivery address specified by the cus­tomer.
  2. The purchase price is due on de­liv­ery against invoice within 30 days from the bill. Thereafter, delay oc­curs under the esti­mate of default interest in case of 5% without the need for a reminder.

 

§ 7 The Warranty Period

The warranty period is 12 (twelve) months. Defects must be report­ed in writ­ing with a detailed description of the defect in case of any other loss of all resulting claims, but at least within 14 days from handover.

 

§ 8 Reservation of Ownership

Until the purchase price claim has been totally fulfilled by the customer, the delivered goods remain the property of the Fairflexx GmbH.

 

§ 9 Data Protection

We use your personal data exclusively for purposes relating to the ordering of the software as well as for infor­mation about the re­spec­tive customer delivery status and for internal customer analy­ses. Personal customer data will be treated confidentially and will not be passed on to third parties.

The customer / client explicitly agrees to the collection, processing and use of the data received in connection with the business relationship.

The customer / client has a right to infor­ma­tion as well as a right to rec­ti­fi­cation, blocking and deletion of his stored data.

 

§ 10 Limitation of Liability:

Unless otherwise agreed in these General Terms and Conditions, we only shall be liable for damages:

 

  1. for damages resulting from injury to life, body, or health result­ing from an intentional or negligent breach of duty by us or an inten­tional or neg­li­gent breach of duty by one of our legal re­pre­sen­ta­tives or vicarious agents;
  2. for any other damages caused by an intentional or grossly negligent breach of duty by us or on an inten­tional or grossly negligent breach of duty by one of our legal re­pre­sen­ta­tives, executives or vicarious agents based on;
  3. for other damages resulting from the intentional or negligent breach of essential contractual obligations (cardinal obligations) by us or the in­ten­tional or negligent breach of essential contrac­tual obligations (cardi­nal obligations) of one of our legal re­pre­sen­ta­tives, executives or vi­ca­rious agents; Essential con­trac­tual ob­li­ga­tions (car­di­nal obli­ga­tions) are obli­ga­tions, the ful­fil­ment of which makes the proper exe­cu­tion of the con­tract possible and on whose compliance the parti­ci­pant regularly trusts;
  4. for damages that fall within the scope of a warranty (guarantee) or a quality or durability guarantee granted by us.

 

Further liability due to fraudulent conduct remains unaffected.

In the case of a simple negligent breach of an essential contractual obligation, the liability of the amount is limited to the typically ex­pect­ed damage. This does not apply to damage resulting from in­jury to life, body or health. Essential contractual obligations (cardi­nal obligations) are obli­ga­tions, the fulfilment of which makes the proper execution of the contract possible and on whose compliance the participant regularly relies.

Claims for damages against us due to legally binding liability, for example according to the Product Liability Act, remain unaffected by the above regulations.

 

§ 11 Supplementary clause

If any provision of this Agreement is or becomes invalid or un­en­force­able, the remainder of this Agreement shall be unaffected. Invalid or un­en­force­able terms shall be replaced by valid and enforceable provisions of the Parts of the Agreement which are most likely to achieve the intended economic pur­pose and are custo­mary in the indus­try. The same rule applies to any gaps.

 

§ 12 Place of performance, applicable law and place of jurisdiction / juris­diction agreement

  1. The law of the Federal Republic of Germany shall apply to the ex­clu­sion of the UN Convention on Con­tracts for the Sale of Goods. The con­tract is subject to the law appli­ca­ble at the registered office of Fairflexx Digital GmbH to the exclusion of all referral standards and the United Nations Convention on Contracts for the Interna­tional Sale of Goods (CISG).
  2. If the customer is a merchant or a legal entity under public law, the exclu­sive place of jurisdiction for all disputes arising from the con­trac­tual rela­tion­ship is the court re­spon­sible for Fairflexx Digital GmbH in accor­dance with the partnership agree­ment. This has the court seat in Stuttgart.
  3. The place of performance for the provi­sion of the service is the regis­tered office of Fairflexx Digital GmbH. The con­tract is governed by the law ap­pli­cable at the place of business, excluding all referral standards and the Unit­ed Nations Convention on Contracts for the International Sale of Goods (CISG).

 

§ 13 Writing / Side agreements

Extensions and amendments to the con­tract as well as deviations from the con­tract require the validity of the written form and sig­na­ture of both par­ties. This also applies to a depar­ture from this writ­ten require­ment. Oral ancil­lary agree­ments do not exist or lose their validity upon conclu­sion of the contract.

Appendix 1:

Information sheet on the commitment declaration in accordance with Article 5 GDPR


(1) Personal data must be:

  1. processed in a lawful manner, in good faith and in a manner com­pre­hen­si­ble to the data subject (“legal­ity, good faith processing, trans­paren­cy”);
  2. collected for defined, clear and legit­i­mate purposes and may not be fur­ther processed in a manner in­com­pa­tible with those pur­pos­es; further pro­ces­sing for archival purposes in the public interest, for which scien­ti­fic or histo­ri­cal research pur­pos­es or statistical purposes shall not be deemed to be incompatible with the original purposes (“purpose binding”) in accordance with Article 89 (1);
  3. appropriate and significant for the purpose and limited to what is neces­sary for the purposes of processing (“data minimisation”);
  4. accurate and, if necessary, up-to-date; all reasonable measures must be taken to ensure that personal data that are incorrect for the pur­pos­es of its proces­sing are imme­di­ately deleted or cor­rect­ed (“accu­racy”; 4.5.2016 L 119/35 Official Journal of the Euro­pean Union DE (1) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9th Septem­ber 2015 on an infor­mation procedure in the field of technical regulations and rules for the services of the Euro­pean Parliament Information Soci­ety (OJ No. L 241 of 17.9.2015, p. 1).
  5. stored in a form that allows the identification of data subjects only for as long as is necessary for the pur­pos­es for which they are pro­cessed; personal data may be stored for longer, provided that the data are not personal data, subject to the im­ple­men­ta­tion of ap­pro­pri­ate tech­nical and orga­nisa­tional measures re­quired by this Regula­tion to protect the rights and free­doms of the data subject, exclusively for the pur­pos­es of the archive, pur­pos­es of interest or for scientific and histo­rical research pur­pos­es or for statistical purposes in accordance with Article 89 (1) (“storage limi­ta­tion”);
  6. processed in a manner that ensures adequate security of per­son­al data, including protection against unau­tho­rised or unlaw­ful processing and against accidental loss, accidental destruction or unintentional injury through appropriate technical and organi­sational measures (“integrity and confidentiality”);

 

Article 32(4) GDPR

  1. The responsible person and the pro­ces­sor shall take steps to ensure that natural persons having access to personal data only process them on the instructions of the controller, unless they are obliged by the Union or the Member States to process these data.

 

Art. 83 sec. 4 GDPR

  1. In case of infringements of the follow­ing provisions, fines of up to EUR 10 000 000 shall be imposed in accordance with para­graph 2 or, in case of an undertaking, of up to 2 % of its total worldwide annual turnover for the previous financial year, de­pend­ing on which of the amounts is higher:
    1. the obligations of responsible persons and processors in accor­dance with Articles 8, 11, 25 to 39, 42 and 43;
    2. the obligations of the certification body in accordance with Articles 42 and 43;
    3. the obligations of the supervisory body under Article 41(4)

 

Section 42 BDSG

  1. A custodial sentence of up to three years or a fine shall be a punish­ment for anyone who knowingly provides personal data that is not gen­er­ally available, to a large num­ber of persons, without being enti­tled to do so,
    1. to a third party or
    2. in a different way and acting commercially.
  2. A custodial sentence of up to two years or a fine will be imposed on anyone who
    1. processes personal data that is not publicly available, without being entitled to do so, or
    2. fiddles them by giving false statements

    and does so for pay­ment or with the intention of en­rich­ing oneself or another person or harming another person.

  3. The offence will only be prosecuted on request. The data subject, the controller, the Federal Com­mis­sion­er and the super­visory authority are entitled to apply.
  4. A notification pursuant to Article 33 of Regulation (EU) 2016/679 or noti­fication pursuant to Article 34 (1) of Regulation (EU) 2016/679 may be used in criminal proceedings against the person obliged to notify or noti­fier or his/her relatives of the Criminal Procedure Code are only used with the consent of the noti­fying person or the person obliged to notify.

 

Section 43 BDSG

  1. Acting illegally is intentionally or negligently
    1. acting contrary to Section 30 (1), by not handling correctly a re­quest for infor­mation or
    2. acting contrary to Paragraph 30 (2) sentence 1, by not informing a customer, giving him wrong, incomplete information or informing him not on time.
  2. The law offence can be punished with a fine of up to EUR 50 000.
  3. Within the meaning of Paragraph 2(1), no fines shall be imposed on departments and other public authorities.
  4. A notification under Article 33 of Regulation (EU) 2016/679 or a noti­fi­cation under Article 34 (1) of Regulation (EU) 2016/679 may be used in proceedings under the Act on Administrative Offences against the person obliged to notify or the notifier or his/her relatives desig­nat­ed in Section 52 (1) of the Code of Criminal Procedure shall only be used with the consent of the notifier or the person obliged to notify.

 

German Penal Code (StGB):


Section 202a: Spying on data

  1. Anyone who provides himself or another person with access to data which is not intended for him and which is particularly secure against unauthorised access, by overcoming the safe­guards of access, shall be punished with a custodial sentence of up to three years or a fine.
  2. Referred to in paragraph 1, data are only those which are stored or trans­mitted electronically, magnet­ical­ly or other­wise imper­cep­tible.

 

Section 202b: Interception of data

Any data which is not intended for him or another by use of technical means (Section 202a paragraph 2) from a non-pub­lic trans­mission of data or from the electro­magnetic radiation of a data processing plant shall be provided with a custodial sentence of up to two years or a fine if the offence is not punish­able by a more severe penalty according to other rules.

 

Section 202c: Preparing to spying and intercepting data

  1. Whoever prepares an offence in accordance with Section 202a or 202b by
    1. passwords or other backup codes that allow access to data (Section 202a paragraph 2), or
    2. manufactures, provides, sells, distributes computer programs whose purpose is to commit such an act or makes them available to anyone else in any other way,

    is punishable by a custodial sen­tence of up to two years or a fine.

  2. Section 149 (2) and (3) shall apply accordingly.

 

Section 202d: stealing the data

  1. Whoever obtains data (Section 202a paragraph 2) which are generally not accessible and which have been illegally obtained by another person, trans­fers, distributes them or makes them accessible in another way, with the intention of en­rich­ing oneself or another person or harming another person, shall be punished with a custodial sentence up to three years or a fine.
  2. The penalty must not be more severe than the penalty for the previous offence.
  3. Paragraph 1 shall not apply to acts which are exclusively for the per­for­mance of legitimate duties or pro­fes­sional conduct. These include, in particular:
    1. such acts by public officials or their agents intended to use data ex­clusively for exploitation in a tax procedure, criminal pro­ceed­ings or administrative of­fences, and
    2. such professional acts of the persons referred to in Section 53 para­graph 1 sentence 1 point 5 of the Code of Criminal Pro­ce­dure with which data are received, evaluated or published.

 

Section 203: Violation of private secrets

  1. Whoever, discloses a foreign secret without authorisation, in particular a secret belonging to the personal sphere of life, or a business or trade secret, which is known to him as a
    1. doctor, dentist, veterinarian, phar­macist or member of an­oth­er medi­cal profession requiring state-regulated training in order to practise or to hold the profes­sion,
    2. occupational psychologists with state-recognised scientific final exam­ina­tion,
    3. Lawyer, Counsel, Patent Attorney, Notary, Defender in a legal pro­ce­dure, Auditor, Sworn Ac­coun­tant, Tax Adviser, Tax Agent or Organ or Member of an institution of a Law, Patent Attorney, Audit, Auditing or Tax Consulting Company,
    4. marriage, family, educational or youth counsellors and addic­tion coun­sel­lors in a counselling cen­ter recognised by an au­tho­rity or body, institution or foundation under public law,
    5. member or representative of a recognised counselling centre in accor­dance with Sections 3 and 8 of the Pregnancy Conflict Act,
    6. state-recognised social worker or state-recognised social educator, or
    7. members of a company have been entrusted or otherwise made aware of private health, accident or life insurance or a private medical, tax consultant or lawyer accounting agency shall be punished with a custodial sen­tence up to one year or a fine.
  2. Equally, anyone who unauthorised discloses a foreign secret, in parti­cular a secret belonging to the per­so­nal sphere of life or a business or trade secret, which is known to him as
    1. an official,
    2. a person particularly obliged to the civil service,
    3. a person performing tasks or powers under the right of staff representation,
    4. a member of a committee of in­quiry, other committee or coun­cil active for a legislative body of the Confederation or a country which is not itself a member of the leg­isla­tive body, or as an assistant to such a committee or council,
    5. publicly appointed expert who has been formally obliged to carry out his duties con­scien­tious­ly by law, or
    6. person who has been formally obliged to carry out his duty of con­fiden­tial­ity in the conduct of scientific research projects on the basis of a law has been entrusted or otherwise made known. A sec­ret within the meaning of the first sentence is equivalent to details of the per­son­al or factual circum­stances of another which have been record­ed for public admin­istra­tion tasks; However, the first sentence shall not apply in so far as such details are disclosed to other authorities or other bodies for public administration tasks and the law does not prohibit this.

    (2a) (omitted)

  3. No disclose within the meaning of that provision exists where the per­sons referred to in paragraphs 1 and 2 make secrets available to their assistants or to persons working with them in prepara­tion for the profes­sion. The persons mentioned in paragraphs 1 and 2 may disclose foreign secrets to other persons who parti­ci­pate in their professional or official activities, to the extent neces­sary for the use of the activ­i­ties of the other persons in­volved. The same ap­plies to other persons involved in case of their use of fur­ther persons who participate in the professional or offi­cial activities of those mentioned in paragraphs 1 and 2.
  4. A custodial sentence of up to one year or a fine shall be punish­able by any person who, without au­tho­ri­sation, dis­closes a for­eign secret which has become known to him when practising or on occasion of his activity as a per­son acting in para­graphs 1 and 2. data protection. It also penali­ses anyone who
    1. has not ensured that any other person involved who un­au­tho­rised discloses a secret which has become known to him in the course of his or her activity shall not be subject to secrecy. This shall not apply to other persons involved who are them­selves a person referred to in paragraphs 1 or 2,
    2. has served another person who is unauthorised to disclose a secret to a stranger who has be­come aware of his or her activ­ity and has not ensured that he or she is respon­sible for the con­fiden­tiality was re­quired; this shall not apply to any other per­son mentioned in para­graphs 1 or 2, or
    3. discloses without authorisation a foreign secret after the death of a person obliged by Sentence 1 or Paragraph 1 or 2, which has become known to him from the dead person or by allowance of the latest one.
  5. Paragraphs 1 to 4 shall also apply if the perpetrator reveals the foreign secret without authorisation after the death of the person concerned.
  6. If the offender acts for re­muner­a­tion or with the intention of en­rich­ing himself or another person or harming another person, the penal­ty shall be a custodial sentence of up to two years or a fine.

 

Section 203 (1) No. 4a

The recognised counselling centres in accordance with Section 218b (2) No. 1 StGB are equivalent to the recog­nised counselling centres in accor­dance with Section 3 of the G on education, pre­ven­tion, family plan­ning and coun­sel­ling in accordance with BVerfGE v. 4.8.1992 I 1585 – 2 BvO 16/92 and others.