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!
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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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:
- Prices are in EURO excluding statutory taxes, duties, customs or other fees.
- In the case of a permanent business relationship, subsequent orders are placed at the current prices applicable at the time of the order.
- 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.
- 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.
- 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.
- 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.
- 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
- Unless anything else is agreed, the delivery shall be made from the company headquarters to the delivery address specified by the customer.
- 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:
- 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;
- 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;
- 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;
- 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
- 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).
- 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.
- 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.
Information sheet on the commitment declaration in accordance with Article 5 GDPR
(1) Personal data must be:
- processed in a lawful manner, in good faith and in a manner comprehensible to the data subject (“legality, good faith processing, transparency”);
- 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);
- appropriate and significant for the purpose and limited to what is necessary for the purposes of processing (“data minimisation”);
- 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).
- 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”);
- 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
- 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
- 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:
- the obligations of responsible persons and processors in accordance with Articles 8, 11, 25 to 39, 42 and 43;
- the obligations of the certification body in accordance with Articles 42 and 43;
- the obligations of the supervisory body under Article 41(4)
Section 42 BDSG
- 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,
- to a third party or
- in a different way and acting commercially.
- A custodial sentence of up to two years or a fine will be imposed on anyone who
- processes personal data that is not publicly available, without being entitled to do so, or
- 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.
- The offence will only be prosecuted on request. The data subject, the controller, the Federal Commissioner and the supervisory authority are entitled to apply.
- 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
- Acting illegally is intentionally or negligently
- acting contrary to Section 30 (1), by not handling correctly a request for information or
- acting contrary to Paragraph 30 (2) sentence 1, by not informing a customer, giving him wrong, incomplete information or informing him not on time.
- The law offence can be punished with a fine of up to EUR 50 000.
- Within the meaning of Paragraph 2(1), no fines shall be imposed on departments and other public authorities.
- 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
- 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.
- 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
- Whoever prepares an offence in accordance with Section 202a or 202b by
- passwords or other backup codes that allow access to data (Section 202a paragraph 2), or
- 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.
- Section 149 (2) and (3) shall apply accordingly.
Section 202d: stealing the data
- 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.
- The penalty must not be more severe than the penalty for the previous offence.
- Paragraph 1 shall not apply to acts which are exclusively for the performance of legitimate duties or professional conduct. These include, in particular:
- 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
- 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
- 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
- doctor, dentist, veterinarian, pharmacist or member of another medical profession requiring state-regulated training in order to practise or to hold the profession,
- occupational psychologists with state-recognised scientific final examination,
- 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,
- 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,
- member or representative of a recognised counselling centre in accordance with Sections 3 and 8 of the Pregnancy Conflict Act,
- state-recognised social worker or state-recognised social educator, or
- 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.
- 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
- an official,
- a person particularly obliged to the civil service,
- a person performing tasks or powers under the right of staff representation,
- 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,
- publicly appointed expert who has been formally obliged to carry out his duties conscientiously by law, or
- 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.
- 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.
- 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
- 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,
- 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
- 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.
- Paragraphs 1 to 4 shall also apply if the perpetrator reveals the foreign secret without authorisation after the death of the person concerned.
- 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.