§ 1 Validity of the Terms and Conditions
(1) These terms and conditions apply to all transactions, contracts and pre-contractual obligations, deliveries, services and offers as well as for (in particular for all work, service and consulting services) in the entrepreneurial business transactions of Polygran GmbH with third parties (customers), who are not consumers in the sense of § 13 BGB.
These General Terms and Conditions of Business shall apply exclusively in dealings, unless otherwise agreed in a separate contract. Other terms and conditions shall not become part of the contract, even if Polygran GmbH does not expressly object to them.
(2) Even if this is not referred to again in the future conclusion of similar contracts, the General Terms and Conditions of Polygran GmbH shall apply exclusively in the version valid at the time of the submission of the declaration, unless the contractual partners agree otherwise in writing.
§ 2 Offers and conclusion of contract
(1) Offers of Polygran GmbH are subject to change and non-binding, unless the offer is expressly designated as binding.
(2) If a binding offer is made, it shall be valid for 6 weeks from the date of the offer, unless otherwise stated in the offer.
(3) All parts of offers remain the intellectual property of Polygran GmbH. The passing on or other use is prohibited without permission of Polygran GmbH.
(4) A conclusion of contract between Polygran GmbH and the customer is exclusively concluded as follows:
(a) A contract is concluded either by a contract concluded by both parties at least in text form, via the online ordering portal of Polygran GmbH or by the order confirmation of Polygran GmbH to the customer at least in text form, furthermore by the fact that Polygran GmbH starts to provide the service after the order. Polygran GmbH may request written confirmations of verbal contract declarations of the Customer.
An order via the online ordering portal of Polygran GmbH corresponds to an offer to Polygran GmbH to make the purchase under the conditions presented there. A contract for the purchase or the provision of services under the conditions stated in this offer is only concluded with the order confirmation by Polygran GmbH.
Silence on the part of Polygran GmbH in response to a declaration of intent on the part of the customer does not constitute consent to the conclusion of a contract.
(b) A contract may also be concluded by means of concurrent declarations of intent by way of a video chat (e.g. via Zoom, Skype or Microsoft Teams, or similar) if the mutual declarations of intent directed towards the conclusion of the contract and the content of the contract as well as the underlying contractual terms and mutually owed services are verbally expressed via the chat or graphically or in text form displayed on the screen and this is recorded by means of the recording function of the chat program as proof of the conclusion of the contract. Both parties to the contract must agree to this type of contract and to the recording of the same, and must declare this during the recording. In the case of this type of contract conclusion, both contracting parties shall each receive a copy of this recording as proof of the content of the concluded contract.
(c) An offer made by the customer requires the express acceptance by Polygran GmbH in text form or via video chat with recording according to the above lit. (b).
§ 3 Scope of performance and subsequent performance
(1) The scope, type and quality of the services and/or deliveries shall be determined by the contract concluded between the contracting parties on both sides or by the order confirmation of Polygran GmbH, otherwise by the accepted offer of Polygran GmbH.
(2) Other services, information or requirements shall only become part of the contract if the contractual partners have mutually agreed on this at least in text form or Polygran GmbH has confirmed this at least in text form. Subsequent changes to the scope of services require agreement or confirmation in text form or in writing by Polygran GmbH.
(3) Verbal agreements shall only become effective after written or textual confirmation by Polygran GmbH.
(4) Project and product descriptions, representations, test programs, etc. are descriptions of performance, but not guarantees. A warranty requires a written declaration by the management of Polygran GmbH.
(5) Polygran GmbH shall provide all deliveries and services according to the state of the art.
(6) If a service owed is culpably not performed by Polygran GmbH in accordance with the contract and this is immediately reported by the customer, Polygran GmbH shall be entitled to perform the service in accordance with the contract within a reasonable period of time (subsequent performance).
§ 4 Time of performance, delays, place of performance
(1) Information on delivery and performance dates as well as completion dates are non-binding, unless they have been designated as binding by Polygran GmbH in text form or in writing. Polygran GmbH can provide partial services, as far as the partial services can be reasonably used by the customer.
(2) Delivery and performance periods shall be extended by the period in which the customer is in default of payment under the contract and by the period in which Polygran GmbH is prevented from delivery or performance due to circumstances for which it is not responsible, and by a reasonable start-up period after the end of the impediment. These circumstances also include force majeure, epidemics/pandemics and labor disputes. Deadlines shall also be deemed to be extended by the period during which the customer fails to cooperate in breach of contract, e.g. fails to provide information, fails to provide access, fails to provide supplies or fails to make employees available.
(3) If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by a reasonable period of time.
(4) Reminders and setting of deadlines by the customer must be in writing to be effective. A grace period must be reasonable. A period of less than two weeks shall only be reasonable in case of special urgency.
(5) The place of performance of services is the place where the service is to be rendered. In all other respects, the place of performance for all services arising from and in connection with this contract is the registered office of Polygran GmbH.
§ 5 Contractual obligation and termination of contract
(1) The term of the contracts shall be governed by the provisions of the individual contract.
(2) The rights to terminate the contract shall be governed by the statutory provisions. The termination must be in writing.
(3) Any termination of the further exchange of services in the case of term or project contracts (e.g. in the case of rescission, reduction, termination for cause, damages in lieu of performance) must always be threatened by stating the reason and setting a reasonable deadline for remedy (usually at least two weeks) and may only be declared within two weeks after expiry of the deadline. In the cases stipulated by law (cf. Section 323 (2) of the German Civil Code), the setting of a deadline may be omitted. Anyone who is wholly or predominantly responsible for the disruption cannot demand reversal.
(4) All declarations in this context must be made in writing to be valid.
§ 6 Remuneration and offsetting prohibition
(1) Unless otherwise agreed by contract:
The agreed remuneration shall be due for payment without deduction within 14 days after provision of the contractual service and receipt of the invoice by the customer. If services are owed over a certain period of time (e.g. support services, consulting, etc.), which cover a period of more than 4 weeks, the services shall be invoiced – unless otherwise contractually agreed – per calendar month with a payment term of 30 days. The same applies to project or work contracts.
(2) If the customer is in default with the payment of the remuneration, Polygran GmbH is entitled to withhold further contractual services until full payment has been made.
(3) Travel costs, expenses, accessories, shipping costs and telecommunication costs shall be additionally remunerated according to expenditure. Additional services requested by the Customer (e.g. consulting and support, training, support and other services) shall be invoiced according to the contractual agreement.
(4) Statutory value added tax at the current rate shall be added to all prices.
(5) The customer may only offset claims recognized by Polygran GmbH or legally established claims. Except in the area of § 354 a HGB (German Commercial Code), the customer may only assign claims from this contract to third parties with the prior written consent of Polygran GmbH. The customer shall only be entitled to a right of retention or the defense of non-performance of the contract within this contractual relationship.
§ 7 Acceptance
(1) If, due to the nature of the contractual performance (contract for work and services), an acceptance of the performance is required or agreed upon, Polygran GmbH shall issue a notice of completion to the Customer upon completion of the work. Unless otherwise provided for in the contract, the customer shall inspect and accept the performance within 6 working days after receipt of the notice of completion.
(2) Acceptance may not be refused due to immaterial defects. Insignificant is in particular incomplete documentation.
(3) Polygran GmbH may demand a formal acceptance.
(4) In all other respects, the rules of § 640 BGB shall apply.
§ 8 Obligations of the customer.
(1) The customer is obligated to expertly inspect all delivery items and software made available to the customer by Polygran GmbH immediately upon delivery or upon making them available in accordance with the regulations of commercial law (§ 377 HGB [German Commercial Code]) and to notify Polygran GmbH of any detected defects in writing with a precise description of the defect. The customer shall thoroughly test each module / software component for usability in the specific situation before starting productive use. This also applies to programs that the customer receives under warranty and a maintenance contract.
(2) The Customer shall take its own reasonable precautions in the event that the Program does not work properly in whole or in part (e.g. by means of data backup, documentation of software use, fault diagnosis, regular testing of results, emergency planning). It is his responsibility to ensure the functioning of the working environment of the program. He alone is responsible for data backup.
(3) If it is necessary for the performance of services, the customer shall provide Polygran GmbH with the necessary system access for remote activities and/or for activities at the customer’s site and, if required, provide Polygran GmbH’s employees with the necessary working environment on site free of charge.
§ 9 Warranty
(1) In the case of software, the following shall apply: At the time of the passing of risk, the software shall have the agreed quality and shall be suitable for the contractually intended use or, in the absence of an agreement, for normal use. It satisfies the criterion of practical suitability and has the quality customary for software of this type; however, it is not error-free. A functional impairment of the program resulting from hardware defects, environmental conditions, incorrect operation or similar is not a defect. An insignificant reduction in quality shall be disregarded.
(2) In the event of material defects, Polygran GmbH may first provide subsequent performance. Polygran GmbH may choose to remedy the defect by removal of the defect, by delivery of software that does not have the defect, or by Polygran GmbH showing possibilities to avoid the effects of the defect. Due to a defect, at least three attempts at rectification are to be accepted. An equivalent new program version or the equivalent previous program version without the defect is to be accepted by the customer, if this is reasonable for him. The installation of software (patches or new versions) is the responsibility of the customer.
(3) The customer shall support Polygran GmbH in the analysis of defects and elimination of defects, in particular by specifically describing occurring problems, informing Polygran GmbH comprehensively and granting Polygran GmbH the time and opportunity necessary for the elimination of defects. Polygran GmbH may, at its discretion, carry out the defect removal on site or at its business premises. Polygran GmbH can also provide services by remote maintenance. The customer shall provide the necessary technical requirements at his own expense and grant Polygran GmbH electronic access to the software after prior notification.
(4) Polygran GmbH may demand compensation for additional expenses resulting from the fact that the software was modified, used outside the specified environment or operated incorrectly. Polygran GmbH can demand compensation for expenses if no defect is found and the customer did not raise the defect complaint without negligence. The burden of proof lies with the customer. § 254 BGB shall apply accordingly.
§ 10 Liability
(1) Polygran GmbH shall pay damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from obligations arising from legal transactions and similar legal transactions, material defects and defects of title, breach of duty and tort), only to the following extent:
a) The liability in case of intent, fraudulent intent and under warranty is unlimited.
b) In case of gross negligence Polygran GmbH is liable to the amount of the typical damage foreseeable at the time of conclusion of the contract.
(2) The objection of contributory negligence remains open to Polygran GmbH. In particular, the customer has the obligation to back up data and to defend against malware, in each case according to the current state of the art.
(3) In the event of injury to life, body and health and in the event of claims under the Product Liability Act, the statutory provisions shall apply without limitation.
§ 11 Limitation
(1) The limitation period shall be
a) in the case of material defects, for claims for repayment of the purchase price arising from rescission or reduction one year from delivery of the software, but for properly notified defects not less than three months from submission of the effective declaration of rescission or reduction;
b) one year for other claims arising from material defects;
in the case of claims arising from defects in title, two years if the defect in title does not lie in a right of a third party on the basis of which the third party can demand the return of the software or the cessation of its use;
d) in the case of claims for damages or reimbursement of futile expenses not based on material defects or defects of title, two years; the period shall commence at the time at which the customer became aware of the circumstances giving rise to the claim or should have become aware without gross negligence.
(2) The limitation period shall commence at the latest upon expiry of the maximum periods specified in § 199 BGB. Paragraph 1 shall not apply in the case of damages and reimbursement of expenses arising from intent, gross negligence, warranty, fraudulent intent and in the cases specified in § 10 Paragraph 3.
§ 12 Beginning and end of the customer’s rights to things and rights
(1) Ownership of delivered items and the rights shall not pass to the Customer until the contractual remuneration has been paid in full. Prior to this, he shall only have a provisional right of use, which shall only be under the law of obligations and which may be revoked in accordance with para. 2.
(2) Polygran GmbH may terminate rights to use software for good cause under the conditions of § 5. An important reason exists in particular if Polygran GmbH, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot be reasonably expected to allow the software to remain with the customer or to make the possibility of using the software available, in particular if the customer violates his contractual obligations in a significant manner.
(3) Upon termination of the rights of use, Polygran GmbH may demand from the customer the return of the objects provided or the written assurance that they have been destroyed; in addition, Polygran GmbH may demand from the customer the deletion or destruction of all copies of the objects as well as the written assurance that this has been done.
§ 13 Secrecy and data protection
(1) The contracting parties undertake to treat as confidential all items (e.g. software, documents, information) received from the other contracting party before or during the performance of the contract which are protected by law or contain business or trade secrets or are designated as confidential, even after the end of the contract, unless they are in the public domain without any breach of the duty of confidentiality. The contractual partners shall store and secure these items in such a way that access by third parties is excluded.
(2) The Customer shall make the subject matter of the contract accessible only to those employees and other third parties who require access in order to perform their official duties. He shall instruct these persons about the need for secrecy of the objects.
(3) Polygran GmbH processes the customer’s data required for the business transaction in compliance with the data protection regulations. Polygran GmbH may name the customer as a reference customer after successful completion of the services.
§ 14 Force majeure clause (force majeure)
(1) In cases of force majeure, such as, in particular, war, sabotage, geological changes and impacts, fire damage, floods, strikes, lawful lockouts and epidemics (including epidemics and pandemics) insofar as a level of risk of at least “moderate” is defined by the Robert Koch Institute, the contracting party affected thereby shall be released from the obligation to perform for the duration and to the extent of the impact on the contractual obligations.
(2) If, in the event of the occurrence of force majeure, the performance of the service is permanently prevented entirely, the parties shall be entitled to terminate the contract with a notice period of one month. If the obstacle ceases to exist after the notice of termination has been given during the notice period, the notice of termination shall be deemed not to have been given.
(3) Claims for damages due to force majeure are excluded.
(4) Each Party shall be obliged to notify the other Party immediately after the occurrence of a Force Majeure event with regard to all details of the Force Majeure. In addition, the parties shall consult on appropriate measures to be taken.
§ 15 Text Form Requirement, Place of Performance, Place of Jurisdiction and Arbitration
(1) Conclusions, amendments and supplements to contractual agreements require at least text form or video chat in accordance with the regulations from § 2 (4) to be effective. (a) and (b). Transmission by fax or e-mail shall expressly suffice to comply with the text form requirement.
(2) The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction for all disputes arising from and in connection with this contract is the registered office of Polygran GmbH for contracts with merchants.
(3) Polygran GmbH is expressly not obligated to participate in arbitration.