General Terms and Conditions of eggheads GmbH
1. Object of Contract
(1) These General Terms and Conditions (hereinafter referred to as „GTC“) apply to all contracts concluded between the customer and EGGHEADS.
(2) The regulatory content extends in particular to the definition of the rights and obligations of the parties with regard to the electronic provision or use of EGGHEADS services.
(3) The general terms and conditions of the customer or third parties shall not apply, even if EGGHEADS does not explicitly object to the validity of particular paragraphs thereof. Even if EGGHEADS refers to a legal document which contains the general terms and conditions of the customer or a third-party, this shall not entail consent to the validity of said terms and conditions.
2. Definitions
(1) “EGGHEADS” means eggheads GmbH, Alte Wittener Str. 50, 44803 Bochum, Germany (HRB 7274, Local court Bochum).
(2) The “customer” is the natural or legal person who utilizes EGGHEADS services.
(3) “EGGHEADS Services” in the sense of these GTC describes all services of EGGHEADS. This applies in particular to services in connection with the provision and use of the software, the maintenance and care of the software, as well as training and workshops.
(4) The “software” within the meaning of these GTC describes the Product Information Management (PIM) software developed by EGGHEADS, in particular the products of the ATAMYA Product Cloud family and eggheads Suite, regardless of the respective deployment variant as SaaS or on-premises solution.
(5) The “contract period” refers to the time period for which the agreement between the parties remains valid. With the termination of the agreement, the contract period ends.
(6) The collaboration between the parties will hereinafter be referred to as “project”.
(7) “Support services” refers to all services as part of which EGGHEADS provides help to key users for installation, operation, or other uses of the software.
(8) “EGGHEADS Help Center” is the customer ticket system of EGGHEADS for reporting software bugs which can only be accessed online under the address “helpcenter.eggheads.de”.
(9) “Users” are accounts registered for specific natural persons who are, thus, authorized to use the software.
(10) “Upgrades” refer to the development of a new version of the software which contains more functionality or improved usability in comparison to preceding versions.
(11) “Third-party software” is any computer program, module, addon, database, or any other software which is provided or developed by a company other than EGGHEADS. Such separately licensed software utilized in combination with the contracted software include, for example, operating systems, libraries, Eclipse, Keycloak, messenger and protocol systems, as well as shop systems, ERP systems, DTP systems, TMS systems, but also database systems.
(12) “Business hours” of EGGHEADS are Monday to Friday from 9.00 A.M. to 5.00 P.M., except on public holidays in NRW or the Federal Republic of Germany.
3. Contract Period, Contract Cancellation
(1) A contract with EGGHEADS begins with the signing by the contract parties and is valid for an indeterminate time period.
(2) The contract can then be cancelled by either of the contract parties in an ordinary manner with a cancellation period of 6 months towards the end of the year, but not before 12 months have passed.
(3) The contract can be cancelled in an extraordinary manner pursuant to legal regulations.
(4) The cancellation is to be provided in written form.
4. Liability
(1) The liability of EGGHEADS for damages shall, regardless of the legal ground, in particular on the grounds of impossibility, delay, insufficient software development, contract breach, breach of obligations during contract negotiations or wrongful acts, as far as EGGHEADS is subject to fault, be limited pursuant to clause 4.
(2) EGGHEADS shall not assume liability for simple negligence by its organs, legal representatives, employees, or any other persons employed in performing an obligation, as far as it does not concern the breach of essential contractual obligations. In particular, essential contractual obligations include granting the usage rights of the provided software, the absence of legal defects, and the absence of material defects which impair in a more than negligible manner the functionality or usability of the software, as well as business consultation, protection, and obligation of care which are to enable the contracted use of software for the customer, the protection of life or limb of the employer’s personnel, or the protection of the employer’s property from substantial damage.
(3) To the extent that EGGHEADS is liable pursuant to the foregoing subparagraph (2) for damages, this liability is limited to damages which EGGHEADS has anticipated as a possible consequence of a contract breach or which should have been anticipated given due care and attention. Indirect damages and consequential damages which are a consequence of defects of software shall only be compensated if such damages can be typically expected from the contracted software use as defined by this agreement.
(4) In the case of liability for simple negligence, the obligation to pay compensation by EGGHEADS for material damages and consequential financial loss is limited to EUR 100,000 per damage case, even if it concerns the breach of essential contractual obligations.
(5) The foregoing exclusions and restrictions of liability also apply in full scope to organs, legal representatives, employees, and other persons employed in performing an obligation of EGGHEADS.
(6) To the extent that EGGHEADS provides technical information or business consultation and to the extent that such information or consultation is not part of the scope of services owed under the contract, it shall be free of charge and exclude any liability.
(7) EGGHEADS assumes liability for the loss of data only up to the cost which would have incurred for the restoration of data which is backed up in an appropriate manner at regular intervals.
(8) The liability of EGGHEADS for third-party software is excluded to the extent that it is not from persons employed in performing an obligation.
(9) The restrictions of clause 4 do not apply to the liability of EGGHEADS because of willful misconduct, for guaranteed conditions, because of injury of life, body, and health, or pursuant to the German Act on Liability for Defective Products.
5. Right of Direction, Involvement of Third Parties
(1) The employees of EGGHEADS are only subject to the right of direction and supervision of EGGHEADS. The customer may still exercise their householder’s rights.
(2) EGGHEADS has the right to transfer contractual obligations over to third parties without prior approval by the customer.
6. Financial Billing, Due Date
(1) The invoice is sent electronically to the customer’s e-mail address as provided to EGGHEADS.
(2) The billed services are due within 14 days from the invoice date and the full amount is to be transferred to the bank account designated by EGGHEADS, unless the parties have agreed upon a different due date. If the customer fails to transfer this amount to the bank account of EGGHEADS within the due date, the customer is in default of payment without prior notice.
(3) All costs, charges, or other kinds of payments are net values, excluding the turnover tax which is also incurred.
7. Customer Reference
The customer agrees to being included in the customer reference list of EGGHEADS. To this end, the customer shall provide their company logo to EGGHEADS. If the company logo is protected by trademark law, the customer shall also grant relevant usage rights for the purpose of being included in the customer reference list.
8. Data Protection
(1) The parties shall comply to the respective data protection laws applicable to them.
(2) If and insofar as EGGHEADS processes the customer’s personal data on behalf of the customer as part of the provision of services, the parties shall conclude a data processing agreement before the start of processing pursuant to Art. 28 Par. 3 GDPR.
9. Non-Disclosure
(1) The parties will treat all business secretes as confidential, including the contents of this contract and all other information classified as confidential from the respective other party (hereinafter referred to as “confidential information”). The receiving party shall treat confidential information with the same care they treat their own confidential information of the same sensitivity, or at least with the appropriate care of a professional businessperson.
(2) The use of confidential information is restricted to use related to this contract. Without prior approval by the other party, the transfer of confidential information to third parties shall not be permitted. Approval shall be provided in written form. Excluded from third parties are related companies of the parties and business consultors which are legally obligated to non-disclosure.
(3) To the extent that it is required by applicable legal obligations, the data receiver has the right to disclose and transfer confidential information. If legally permissible, the data receiver shall inform the other party prior to the disclosure of confidential information.
(4) The parties shall task their employees or third parties to whom confidential information is transferred with the confidential treatment of this information as part of their respective service or employment contract, so that the obligation of non-disclosure continues even after termination of the respective service or employment contract, unless a general obligation of non-disclosure has already been agreed upon.
(5) Excluded from the obligation of non-disclosure is information:
a. which has already been generally known or has become generally known after the fact without breaching the obligation of non-disclosure pursuant to this contract;
b. which the data receiver has developed independently of this contract; or
c. which the data receiver received from third parties or from the other party outside of this contract without the obligation of non-disclosure.
d. The burden of proof for cases defined in this sub-paragraph is on the party which relies on the exception.
(6) With the termination of this contract, all parties shall hand over or delete the confidential information of the respective other party upon request. This excludes confidential information to which the legal obligation to preserve records for a prolonged period applies as well as data backups as part of regular backup processes.
(7) The obligation of non-disclosure remains valid for the contractual period as well as an additional period of 5 years after termination of this contract.
(8) EGGHEADS has the right to utilize practical knowledge such as ideas, concepts, methods, and knowhow developed or disclosed throughout the performance of the contract gathered in the minds of the persons EGGHEADS tasks with service provision. This does not extend to cases where the customer’s industrial property right or copyright is threatened. The obligation of non-disclosure shall remain untouched by this.
10. Place of Fulfillment, Place of Jurisdiction
(1) The place of fulfillment for the contractual obligations of EGGHEADS is Bochum.
(2) The place of jurisdiction for legal disputes between the contractual parties is Bochum.
11. Applicable Law
The law of the Federal Republic of Germany shall apply under exclusion of the conflict of laws and UN CISG.
12. Written Form
Changes and supplements to this contract shall only be provided in written form in order to become effective. The waiver of this form requirement itself shall also be provided in written form.
13. Severability Clause
If any regulation of this contract is held to be ineffective, all other regulations shall retain their legal effectiveness. In this event, the parties shall be obligated to agree upon regulations which are economically equivalent to the intended purpose of the ineffective regulations. This also applies to the closing of any gaps in this contract.
eggheads GmbH – General Terms and Conditions (Status: 01.10.2024)
