General terms and conditions of DATALOGUE GmbH

I. Scope

  1. The following General Terms and Conditions (“T&Cs”) govern all legal transactions between DATALOGUE GmbH, hereinafter referred to as “DATALOGUE” or “the Contractor”, and its contractual counterparties, hereinafter referred to as “the Customer” or “the Client”, particularly in respect of services in the areas of CRM, marketing/sales consultancy and data analysis.
  2. These T&Cs form an integral part of any contract awarded to DATALOGUE. More specific provisions contained in any individual agreements shall, however, take precedence.
  3. Any divergent terms and conditions of the Customer, as well as more specific provisions in any individual agreements, shall only be valid in writing. This also applies in respect of any amendments to this written form requirement.

II. Services

  1. The precise services included in the contracts will be agreed upon with the Customer on a case-by-case basis in accordance with the specific project requirements concerned.
  2. Otherwise, DATALOGUE is free to choose the place and nature of contractual performance, as well as the personnel involved, at its own discretion. It will, however, pay due regard to the operational needs of the Customer, such as in respect of meetings that need to be held on-site.
  3. DATALOGUE undertakes to render the agreed consultancy and other services in a professional manner geared towards the Customer's objectives and with suitably qualified personnel.
  4. DATALOGUE is entitled to engage the services of third parties to implement contracts. The choice of third parties shall pay due regard to the principle of striking a balance between cost-effectiveness and the best-possible results in the interests of the Customer. DATALOGUE shall ensure that the third parties are bound by similar contractual provisions on confidentiality. Minutes of meetings submitted by DATALOGUE shall be deemed approved if the Customer does not object within three days of receipt.
  5. The Customer undertakes to provide DATALOGUE with complete and comprehensive information, as well as appropriate support, during performance of the contract, e.g. by acquiring and providing any necessary information and documents. The Customer undertakes to meet, in accordance with the contract, any duties to cooperate that are necessary for performance of the contract (e.g. provision of information, documents, approvals). If the Customer fails to do so, any resulting consequences (e.g. delays in service provision) shall not have any legal implications detrimental to DATALOGUE (e.g. falling into default).

III. Payment

  1. Prior to the commencement of service provision, the Client will receive cost estimates or framework agreements with agreed fees/costs; these will then be approved by the Client. Depending on the contract concerned, the cost estimate may contain a fixed, flat-rate price, a time-based fee with an estimate of the time required or a cost budget. Additional travel expenses may be incurred if personnel are required to work elsewhere.
  2. Additional expenses that are incurred at the behest of the Client will be billed on the basis of time at the rates agreed upon in the cost estimate or framework agreement.
  3. The agreed prices are net prices; VAT will be added at the applicable statutory rate. Contributions to the German artists’ social welfare fund, customs duties, any existing claims from copyright collectives or other payments connected with performance of the contract, including those incurred subsequently, shall be paid by the Client.
  4. Invoices shall be submitted by DATALOGUE following performance of the service(s) or parts thereof. The invoices issued to the Client by DATALOGUE are payable in full within 14 days of the date of the invoice. After this period, default interest will be charged at 9 percentage points above the base rate.
  5. If the contract includes the subcontracting of third-party services by DATALOGUE directly (e.g. media or production services for advertising materials), the applicable listed prices of the third party concerned shall be definitive. The resulting costs shall be paid by the Client and will be passed on to the Client by DATALOGUE.
  6. Rights pertaining to DATALOGUE services, particularly the contractually standardised usage rights under Section IV and/or any more specific individual agreements, shall only pass to the Client upon payment in full of all invoices relating to the contract concerned.

IV. Usage rights

  1. All rights – in particular copyright, the rights to inventions and technical property rights – pertaining to the work outputs developed for performance of the contract – e.g. concepts, presentations, memos, schedules and other similar outputs – are, vis-à-vis the Client, held solely by DATALOGUE, even insofar as the work outputs have been produced through specifications from, or with the assistance of, the Client. The Client shall be granted a non-exclusive usage right in respect of the work outputs for the purpose of structuring its internal operating processes accordingly. The Client is further entitled to make any necessary backup copies of the work outputs.
  2. Any further usage – in particular the editing, alteration or autonomous distribution of work outputs of DATALOGUE, whether in whole or in part – is not included in the aforementioned granting of a usage right.
  3. If the contract includes the subcontracting of third-party services by DATALOGUE directly and on behalf of the Client, the provisions of the third party concerned on the granting of rights shall be definitive in respect of the third-party services.
  4. On request, the Client shall be obligated to provide specific statements and evidence that usage of the work outputs is solely in accordance with the contractual agreement.
  5. DATALOGUE shall be entitled to use the name, logo and other commercially used names and identifiers of the Customer for its own marketing campaigns.
  6. Documents, files and other resources (particularly programs, models, introductory presentations, etc.) provided by DATALOGUE to enable it to render its services or receive a contract for the rendering of services shall remain the exclusive physical and intellectual property of DATALOGUE. Upon completion of the contract, these resources shall be surrendered to DATALOGUE.

V. Warranty

  1. DATALOGUE gives a warranty that the contractual services shall exhibit the expressly agreed attributes and that no third-party rights shall impede the transfer of the agreed usage rights to the Client (Section IV). Insofar as no specific attributes have been agreed upon, the warranty shall relate to the fact that the service is suitable for the contractually stipulated or other ordinary usage and exhibits the attributes that are usual for services of this kind and that the Client can expect for services of this kind.
  2. Beyond this, the Client bears the risk as to whether the services included in the contract meet its wants and needs. The Client undertakes to discuss any doubts with DATALOGUE in a timely fashion. Insofar as DATALOGUE provides consultancy services, DATALOGUE shall further assume no responsibility for the achievement of a particular service result, as this may be contingent on numerous additional factors (e.g. implementation in full by the Client and market events). The same applies in respect of any plans, assessments and forecasts prepared during the rendering of service.
  3. If the Client believes that there are any shortcomings in the work outputs, the Client undertakes to notify DATALOGUE thereof without delay. In the case of proven objective shortcomings, DATALOGUE shall meet its warranty obligation by means of subsequent performance; at its own discretion, it shall either provide a new and updated work output that is free from shortcomings or shall remedy the original shortcoming. In the event of proven defect of title, DATALOGUE shall meet its warranty obligation by means of subsequent performance, either by providing the Client with a legally unobjectionable usage right in respect of the work outputs or, at its own discretion, by providing the client with replacement or modified equivalent work outputs.
  4. The limitation period for claims due to shortcomings pursuant to the provisions of Sections V.1 to V.3 shall be one year and shall commence upon the handover of the work output(s) concerned. This also applies for claims for withdrawal and price reduction. The shortened limitation period does not apply in the event of wilful intent or gross negligence on the part of DATALOGUE, fraudulent concealment of the shortcoming, personal injury or defects of title within the meaning of Sect. 438 (1) No. 1a of the German Civil Code (BGB).
  5. In the event that a third party asserts claims that object to the contractually granted usage rights, the Client undertakes to notify DATALOGUE thereof immediately in writing, providing comprehensive information. DATALOGUE shall handle any settlement negotiations and/or court proceedings. DATALOGUE indemnifies the Client against any third-party claims for compensation in this regard.
  6. The Client pledges that it is entitled to use all documents and similar materials provided to DATALOGUE. Furthermore, the Client shall also be responsible for the legality of the planned contract in all other aspects, e.g. in respect of data protection considerations. The Client indemnifies DATALOGUE against any and all claims for compensation asserted by third parties in this regard.
  7. If the contract includes the subcontracting of third-party services by DATALOGUE directly, the third parties concerned are responsible for the quality of their service(s). As such, DATALOGUE does not assume any responsibility for any shortcomings in respect of such services.

VI. Liability

  1. The Contractor shall be liable:
    • to an unlimited extent for damages arising from loss of life, physical injury and damage to health, as well as for damages under the German Product Liability Act and any warranty commitments;
    • to an unlimited extent in the event of wilful intent, fraud and gross negligence;
    • for damages arising from a culpable breach of material contractual obligations, i.e. obligations whose fulfilment is necessary for the proper performance of the contract in the first place and in respect of which the Client can usually expect compliance; liability will, however, be limited to compensation for the damages typically foreseeable for the type of contract concerned.
  2. The Parties agree that the damages typically foreseeable for the contract in respect of the contractual services governed by these T&Cs should not usually be any higher than €10,000.00 or the total value of the contract concerned, whichever is higher. Further, the Contractor shall not be liable for any lost profits or other indirect damages incurred by the Customer.
  3. Any further liability on the part of the Contractor is excluded.
  4. Insofar as the liability of the Contractor is excluded or limited, this shall also apply in respect of the personal liability of the Contractor's legal representatives, senior executives and other agents.
  5. The Customer undertakes to immediately notify the Contractor, in text form at the very least, of any damages within the meaning of the liability provisions outlined above so that the Contractor is informed as soon as possible and, where applicable, can work with the Customer to carry out damage limitation.
  6. The customer is solely responsible for the legal admissibility of the further processing of the data provided by DATALOGUE. This applies in particular to compliance with the legal provisions of data protection and competition law. This also includes the information obligation according to Art. 14 GDPR. The provision of address and contact data by DATALOGUE is not equivalent to the recipient's consent to receiving advertising via the selected communication channel. The customer releases DATALOGUE from all third-party claims that are based on unlawful use of the information received from DATALOGUE by or at the instigation of the customer.
  7. These liability provisions are conclusive. They apply in respect of all liability claims irrespective of their legal basis, particularly pre-contractual claims, claims under ancillary agreements and claims under tort.

VII. Confidentiality

  1. The Parties undertake to treat in confidence for an indefinite period all information of the respective other Party that they become aware of prior to or during contractual performance that is protected by DATALOGUE or the Client against unrestricted disclosure to third parties or that is to be regarded as confidential on account of the circumstances of its disclosure or its content (“confidential information”) and to only use such information in the management of the contract concerned and for the purpose of meeting the objective of said contract. Any copies of confidential information of the other Party made for the aforementioned purposes must contain all notices and references to their confidential or secret nature that are contained in the original.
  2. In respect of the confidential information of the respective other Party, (a) each Party shall take all reasonable steps (pursuant to the definition below) to handle all confidential information in confidence and (b) each Party shall only grant such persons access to the confidential information of the other Party who require access for the purposes of contractual performance and contractual management. ‘Reasonable steps’ within the meaning of this Section VII.2 are such steps that the recipient takes to protect its own confidential information and that correspond to at least an appropriate duty of care; in respect of both Parties, this includes careful storage and protecting the confidential information against misuse.
  3. Sections VII.1 and VII.2 do not apply in respect of confidential information that (a) has been independently developed by the recipient without making recourse to confidential information of the disclosing Party or that has been lawfully acquired without a confidentiality obligation from a third party who is entitled to supply this confidential information, (b) has been made publicly accessible to the recipient without any breach of contract, (c) was already fully known to the recipient at the time of disclosure or (d) has been exempted from the aforementioned provisions by means of written permission granted by the disclosing Party.

VIII. Term

  1. These T&Cs shall continue to apply for as long as services are rendered pursuant to the contract concerned. The specific periods of service provision shall be stated in the contract concerned.
  2. Premature termination of the specific service provision contracted is not provided for. If this is permitted by mandatory law, such as in the case of works pursuant to Sect. 648 of the German Civil Code (BGB), the obligation to pay remuneration shall not be affected – other than insofar as the Contractor has saved costs due to the premature termination and insofar as such costs are deductible.
  3. Exceptional grounds for termination stipulated under mandatory law, such as those under Sect. 314 of the German Civil Code (BGB), remain unaffected. From the standpoint of the Contractor, grounds for termination for cause within the meaning of the aforementioned regulation apply, in particular, if the Client fails to pay due remuneration despite the setting of an appropriate grace period or repeatedly fails to pay remuneration despite its falling due.

IX. Closing provisions

  1. Any disputes arising from or in connection with this Agreement shall be subject to the jurisdiction of the courts of Hamburg, Germany.
  2. The laws of the Federal Republic of Germany shall apply, to the exclusion of private international law.
  3. The Client shall only be permitted to offset using counterclaims or assert a right of lien if the corresponding claims of the Client are undisputed or have been legally upheld in a final ruling.
  4. The Client is not permitted to transfer the contract in question, or individual rights and obligations arising from such contract, to a third party.
  5. In the event that individual provisions of these T&Cs are or become invalid, whether in whole or in part, this shall not affect the validity of the remaining provisions. Instead, an appropriate provision shall apply in lieu of the invalid provision or for the purpose of closing any contractual gaps; this valid provision shall come closest to what the Parties would have wanted to achieve pursuant to the meaning and purpose of the Agreement or if they had been cognisant of the legal gap.

Status: February 2022

Contact Contact us now!