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General Terms and Conditions of Portolan Commerce Solutions GmbH for deliveries and services
1. Scope of Application
1.1 These General Terms and Conditions (these “GTC”) apply to all contractual relationships between Portolan GmbH or its respective affiliated companies (“Portolan”) and its clients (the “Client”).
1.2 These GTC apply in particular to contracts for the provision of IT services. Unless otherwise agreed, these GTC in the version valid at the time the contractual relationship is established shall also apply as a framework agreement for similar future contractual relationships, without the need to refer to these GTC again in each individual case.
1.3 These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that Portolan Commerce Solutions GmbH has expressly consented to their application. This requirement of consent shall apply in any case, for example even if Portolan Commerce Solutions GmbH performs the services without reservation in the knowledge of the customer’s general terms and conditions.
1.4 In individual cases, individual agreements made with the customer (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written agreement or the written confirmation of Portolan Commerce Solutions GmbH shall be decisive for the content of such agreements.
1.5 Legally relevant declarations and notifications by the customer in relation to the contractual relationship (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be made in writing. Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
1.6 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2. Conclusion of contract
2.1 Offers made by Portolan Commerce Solutions GmbH are subject to change and non-binding. This shall also apply if Portolan Commerce Solutions GmbH has provided the customer with concepts, technical documentation, other service descriptions or documents – also in electronic form – to which Portolan Commerce Solutions GmbH reserves ownership rights and copyrights.
2.2 The commissioning of the deliveries and services by the customer (“the order”) shall be deemed a binding contractual offer. Unless otherwise stated in the Order, Portolan Commerce Solutions GmbH shall be entitled to accept this contractual offer within one month of its receipt by Portolan Commerce Solutions GmbH.
2.3 Acceptance can be declared to the customer either in writing (e.g. by order confirmation) or by performance of the service.
3. Subject matter of the contract
3.1 The subject matter of the contract is set out in these GTC and, where applicable, in the other documents relating to the contractual relationship (e.g. offer, service description, order confirmation).
3.2 Portolan Commerce Solutions GmbH provides IT services for the customer in the form of consulting and programming services. Unless otherwise agreed, Portolan Commerce Solutions GmbH does not guarantee the occurrence of a certain success.
3.3 Portolan Commerce Solutions GmbH provides consulting and programming services as contractual services (§ 611 BGB). Insofar as the parties wish to agree services under a contract for work and services, this shall be expressly regulated; in this case, the production of a work on the basis of the agreed specifications shall be owed.
3.4 If Portolan Commerce Solutions GmbH issues a report or other documents, these shall not constitute an expert opinion, but shall only reflect the essential content with regard to the process, results and recommendations of the consultation.
3.5 Entrepreneurial risks shall be borne solely by the customer, in particular with regard to risks for decisions made or not made by the customer in the exercise of entrepreneurial discretion (e.g. misjudgment of the market situation or misjudgment of the expediency of business measures).
4. provision of services
4.1 Portolan Commerce Solutions GmbH shall in principle be free to choose the place of performance and the employees deployed to provide the services. The services may in particular be provided “remotely”, i.e. also using means of remote communication.
4.2 Portolan Commerce Solutions GmbH is entitled to provide the services through its own employees or to commission third parties to provide the services.
4.3 Unless otherwise agreed, Portolan Commerce Solutions GmbH and third parties commissioned by Portolan Commerce Solutions GmbH shall provide their services in countries of the European Union. The provision of services may also be relocated to countries outside the European Union at the discretion of Portolan Commerce Solutions GmbH, provided that the customer is not threatened with any significant disadvantages as a result. Prior to any such relocation that was not already disclosed to the customer upon conclusion of the contract, Portolan Commerce Solutions GmbH shall inform the customer and give the customer the opportunity to object to the relocation with reference to the impending disadvantages.
4.4 The place of performance shall be the point of delivery agreed between the parties. If no point of delivery has been agreed, the place of performance shall in case of doubt be the registered office of Portolan Commerce Solutions GmbH.
4.5 The parties shall refrain from actively enticing away employees of the other party or other persons involved in the provision of services.
5. personnel deployment at the customer
5.1 Under no circumstances shall Portolan Commerce Solutions GmbH personnel be integrated into the customer’s operations. Portolan Commerce Solutions GmbH shall remain fully responsible for the personnel and shall retain the exclusive right to issue instructions.
5.2 There shall be no division of labor between the customer’s personnel and Portolan Commerce Solutions GmbH’s personnel.
6. Time of performance and delay
6.1 The time of performance shall be agreed individually or specified by Portolan Commerce Solutions GmbH upon acceptance of the order. If this is not the case, the provision of services shall commence approximately within one month of the conclusion of the contract and shall be completed within a reasonable period of time.
6.2 If Portolan Commerce Solutions GmbH is unable to meet binding performance times for reasons for which Portolan Commerce Solutions GmbH is not responsible (the “non-availability of performance”), Portolan Commerce Solutions GmbH shall inform the customer thereof without undue delay and at the same time notify the customer of the expected new performance time. If the service is also not provided within the new performance period, Portolan Commerce Solutions GmbH shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the customer shall be reimbursed by Portolan Commerce Solutions GmbH without delay. A case of non-availability of the service in this sense is in particular the non-timely provision of the service by a subcontractor, if Portolan Commerce Solutions GmbH has concluded a congruent hedging transaction, if neither Portolan Commerce Solutions GmbH nor the subcontractor is at fault or if Portolan Commerce Solutions GmbH was not obliged to procure in the individual case.
6.3 The occurrence of default on the part of Portolan Commerce Solutions GmbH shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required.
6.4 The rights of the customer under the liability provisions of these GTC and the statutory rights of Portolan Commerce Solutions GmbH, in particular in the event of an exclusion of the obligation to perform (for example due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
7. force majeure
7.1 Portolan Commerce Solutions GmbH shall not be liable for events of force majeure that significantly impede Portolan Commerce Solutions GmbH’s deliveries and services, temporarily hinder the proper execution of the contractual relationship or make it impossible. Force majeure is deemed to be all circumstances independent of the will and influence of the parties (e.g. natural disasters, blockades, strikes, lockouts) that occur after conclusion of the contract.
7.2 Insofar as one of the parties is prevented from fulfilling the contractually agreed deliveries and services due to force majeure, this shall not be deemed a breach of duty within the scope of the contractual relationship. Each party shall, within the scope of its possibilities, ensure that the extent of the effects of force majeure is kept to a minimum.
8 Acceptance and delivery; default of acceptance
8.1 Insofar as Portolan Commerce Solutions GmbH is to provide services under a contract for work and services, Portolan Commerce Solutions GmbH shall notify the customer when the deliveries and services are ready for acceptance. The customer is obliged to inspect the deliveries and services immediately after notification of readiness for acceptance and to declare acceptance within the agreed time or – if no time has been agreed – within two weeks. Acceptance can only be refused due to the existence of defects that prevent acceptance.
8.2 If the customer is in default of acceptance, this shall be deemed equivalent to acceptance or completion of the services. The use of deliveries and services by the customer in live operation shall also be deemed acceptance of these deliveries and services.
8.3 If the customer is in default of acceptance, fails to cooperate or if the services of Portolan Commerce Solutions GmbH are delayed for other reasons for which the customer is responsible, Portolan Commerce Solutions GmbH shall be entitled to demand compensation for the resulting damage including additional expenses.
9. rights of use to performance results
9.1 Portolan Commerce Solutions GmbH shall be exclusively entitled to all rights to the work results, including consulting results, in relation to the Customer, even if the work results were created by specifications or cooperation of the Customer or its employees. This applies in particular to copyright, the rights to inventions and technical property rights.
9.2 Unless otherwise agreed in writing, Portolan Commerce Solutions GmbH grants the customer a simple right of use for its own purposes to work results created within the framework of the contractual relationship. The customer shall have the same rights to make changes or additions to standard software that Portolan Commerce Solutions GmbH has produced and/or supplied as to this standard software.
10 Obligations of the customer to cooperate
10.1 The parties have the common understanding that a successful cooperation within the framework of the contractual relationship depends decisively on the cooperation of the customer and that the fulfillment of the customer’s cooperation services is absolutely necessary for the success of the deliveries and services of Portolan Commerce Solutions GmbH. The customer therefore undertakes to support Portolan Commerce Solutions GmbH comprehensively in the provision of the goods and services, in particular by providing the cooperation services listed below.
10.2 The customer shall promote the successful execution of the contractual relationship within its area of responsibility. Insofar as circumstances are foreseeable for the customer which may have a negative influence on the contractual relationship or the deliveries and services of Portolan Commerce Solutions GmbH, Portolan Commerce Solutions GmbH shall be informed of this immediately in writing by the customer.
10.3 The Customer shall provide Portolan Commerce Solutions GmbH with the information required for the provision of the service and shall in particular grant Portolan Commerce Solutions GmbH access to all relevant data, files, documents and other materials (e.g. interface descriptions).
10.4 The Customer shall grant Portolan Commerce Solutions GmbH access to the required premises and to the required systems to the extent necessary for the provision of the services. The Customer shall also provide the necessary infrastructure for the provision of services on site (e.g. equipped workstations with Internet access).
10.5 The customer shall back up its data daily in a suitable form so that it can be restored with reasonable effort, unless Portolan Commerce Solutions GmbH has contractually undertaken to back up the data.
10.6 Insofar as Portolan Commerce Solutions GmbH makes changes on behalf of the customer to software that is not the subject of the contractual relationship, in particular to licensed third-party software, the customer shall be fully responsible for ensuring that it has the necessary rights to make changes to such software.
10.7 The Customer shall indemnify Portolan Commerce Solutions GmbH against all claims of third parties which are based on a non-contractual use of deliveries and services of Portolan Commerce Solutions GmbH and the associated services by the Customer or which are carried out with its approval. If the customer recognizes or must recognize that a claim by a third party is imminent, it is obliged to inform Portolan Commerce Solutions GmbH immediately.
10.8 The above list of cooperation services is not exhaustive; further cooperation services may result in particular from the agreements between the parties (for example, in the context of minutes).
10.9 Insofar and as long as the customer does not fulfill its cooperation services, does not fulfill them properly or does not fulfill them on time and the provision of services by Portolan Commerce Solutions GmbH is impaired as a result, Portolan Commerce Solutions GmbH shall be released from the obligation to provide deliveries and services, in particular also with regard to agreed deadlines, dates and milestones, which shall be extended or postponed by a reasonable period of time if the cooperation services are made up for.
11. remuneration for deliveries and services
11.1 The services provided by Portolan Commerce Solutions GmbH shall be invoiced monthly in arrears on the basis of the number of person-days or hours worked. Monthly invoicing based on time spent shall also apply to services under a contract for work and services; in this respect, the claim to remuneration shall be independent of the acceptance of the services.
11.2 License fees for software are due upon delivery. Fees for the maintenance of software are invoiced quarterly in advance.
12. Prices and terms of payment
12.1 Unless otherwise agreed in individual cases, the current prices of Portolan Commerce Solutions GmbH at the time of conclusion of the contract shall apply. All prices are subject to statutory value added tax, if applicable.
12.2 The remuneration is due and payable within 14 days of invoicing and provision of the service. However, Portolan Commerce Solutions GmbH shall be entitled at any time, even within the framework of an ongoing business relationship, to provide a service in whole or in part only against advance payment. A corresponding reservation must be declared at the latest with the order confirmation.
12.3 Upon expiry of the above payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the payment claim at the applicable statutory default interest rate. Portolan Commerce Solutions GmbH reserves the right to claim further damages for default. Portolan Commerce Solutions GmbH’s claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
12.4 The customer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter-rights shall remain unaffected.
12.5 If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that Portolan Commerce Solutions GmbH’s claim to payment of the remuneration is jeopardized by the customer’s inability to pay, Portolan Commerce Solutions GmbH shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB).
13. reservation of title
13.1 Portolan Commerce Solutions GmbH shall retain title to the delivered items until the corresponding claims for remuneration have been fulfilled.
13.2 The right of use for copyrightable deliveries and services is initially only revocable until full payment of the agreed remuneration. The right of revocation by Portolan Commerce Solutions GmbH shall expire upon full payment of the remuneration from the contractual relationship.
14. fundamentals of the warranty
14.1 The basis of Portolan Commerce Solutions GmbH’s liability for defects is above all the agreement reached on the quality of the services. All service descriptions that are the subject of the contractual relationship or have been made public by Portolan Commerce Solutions GmbH shall be deemed to be an agreement on the quality of the services.
14.2 Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not. Portolan Commerce Solutions GmbH accepts no liability for public statements made by manufacturers or other third parties (e.g. advertising statements).
15. claims for defects of the customer
15.1 The customer is obliged to inspect deliveries and services immediately after delivery by Portolan Commerce Solutions GmbH, in particular with regard to completeness and freedom from defects. If defects are discovered during the inspection, they must be reported to Portolan Commerce Solutions GmbH in writing without delay. Defects that cannot be detected during the prescribed inspection must be reported in writing immediately after discovery. A period of two weeks shall be deemed immediate within the meaning of the above provisions. In the event of a breach of the above obligations to inspect and give notice of defects, the deliveries and services shall be deemed to have been approved with regard to the defect in question.
15.2 Insofar as deliveries and services are subject to acceptance or partial acceptance, the inspection shall be carried out by the customer as part of the acceptance test. Claims with regard to defects that were recognizable during the acceptance test shall only exist if the customer asserts or reserves the right to assert them during the acceptance test. With regard to defects that cannot be identified during the acceptance test, the provisions of the preceding paragraph shall apply
15.3 If the customer notifies Portolan Commerce Solutions GmbH of a defect in the goods and services provided by Portolan Commerce Solutions GmbH in compliance with the above provisions and within the warranty period, Portolan Commerce Solutions GmbH shall remedy the defect in question. Portolan Commerce Solutions GmbH may choose whether to remedy the defect (rectification) or supply a replacement (replacement delivery), unless Portolan Commerce Solutions GmbH has expressly agreed otherwise in the product-specific terms and conditions. If the delivery item is software, the instruction to bypass the software defect is sufficient rectification, provided this is reasonable for the customer. Replaced delivery items or parts shall become the property of Portolan Commerce Solutions GmbH; with regard to replaced software components, the right to use them shall expire. Portolan Commerce Solutions GmbH is entitled to make several attempts to remedy the defect within a reasonable period of time.
15.4 If the defect is not remedied within a reasonable period of time, the project management shall decide on the next steps. The project management shall decide on the further course of action, including the necessary measures. If the project management does not reach an amicable result, the customer shall set Portolan Commerce Solutions GmbH a further, reasonable period of grace to rectify the defect, which must be at least 12 working days. In this written request to remedy the defect within the grace period, the customer must state which of the following rights will be asserted if the grace period expires without success. If no project management has been formed, the management of the parties shall take its place.
15.5 If the defect cannot be remedied within the grace period and is therefore deemed to have definitively failed, the customer shall be entitled to the following legal remedies subject to the statutory requirements. The customer may reduce the remuneration appropriately, but only by more than 50% in the case of unacceptable defects. Alternatively, the customer may rectify the defect itself or have it rectified by a third party and demand reimbursement from Portolan Commerce Solutions GmbH of the costs necessarily incurred for this, up to a maximum of the order value attributable to the defective part. Taking into account the nature of the agreement, the parties have expressly agreed to exclude the right of withdrawal; the right to extraordinary termination shall take its place.
15.6 If the customer complains about a defect that cannot be determined, the customer shall bear the costs of the investigation.
15.7 In the event of proven defects of title, Portolan Commerce Solutions GmbH shall provide subsequent performance by providing the customer with a legally unobjectionable opportunity to use the delivered software or, at its discretion, replaced or modified equivalent software. The customer must accept a new software version if the contractual scope of functions is retained and the acceptance does not lead to unreasonable adaptation and conversion problems for the customer.
16. manufacturer warranties
16.1 If Portolan Commerce Solutions GmbH is not the manufacturer of a delivery item and the manufacturer offers the customer a guarantee or liability that goes beyond the provisions on warranty and liability under these GTC, Portolan Commerce Solutions GmbH shall inform the customer of this and hand over the guarantee documents at the customer’s request.
16.2 Portolan Commerce Solutions GmbH is not responsible for the fulfillment of the manufacturer’s warranty. The customer must assert these claims directly against the manufacturer, to the exclusion of Portolan Commerce Solutions GmbH.
16.3 In this respect, Portolan Commerce Solutions GmbH shall assign any corresponding claims against the manufacturer to the customer at the customer’s request, provided that the assignment is possible.
17. Liability
17.1 Portolan Commerce Solutions GmbH shall be liable without limitation for intent and gross negligence; otherwise, liability shall be limited or excluded in accordance with the following provisions.
17.2 Liability is limited to reasonably foreseeable damages and expenses typical for the contract. The parties have the common understanding that the typical contractual damage shall in no case exceed the order volume (excluding software licenses).
17.3 Portolan Commerce Solutions GmbH shall only be liable for slight negligence if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation). In this case, the above limitation of liability shall apply; otherwise, liability for slight negligence is excluded altogether.
17.4 Liability for indirect damages and consequential damages, in particular for damages in the event of business interruptions and for loss of profit, is excluded as a whole, unless there is a case of intent.
17.5 Liability for loss of data shall be limited to the recovery costs that would have been incurred if the customer had backed up the data in accordance with the risks involved. Portolan Commerce Solutions GmbH shall only be liable for the recovery of lost data if the customer has ensured that this data can be reconstructed from machine-readable data material and with reasonable effort.
17.6 In so far as contractual services are provided, the strict liability of Portolan Commerce Solutions GmbH for defects that already existed at the beginning of the contractual relationship is excluded.
17.7 The limitations of liability shall not apply in the event of injury to life, body or health or in the event of claims under the Product Liability Act. Liability for guarantees assumed by Portolan Commerce Solutions GmbH and for fraudulent concealment of a defect by Portolan Commerce Solutions GmbH shall remain unaffected.
18. limitation period
18.1 The warranty period for material defects and defects of title is one year. The period begins with the acceptance or partial acceptance of the respective deliveries and services. If the deliveries and services are not subject to acceptance, delivery to the customer shall take the place of acceptance. Further support can, if necessary, be achieved by means of separate agreements such as maintenance contracts.
18.2 Claims for damages and claims for reimbursement of futile expenses shall become time-barred within one year, beginning with the last partial acceptance. This limitation period shall not apply to liability for intent or gross negligence or to cases which are excluded from a limitation within the scope of the liability regulations; in this respect, the statutory limitation periods shall apply.
19. Data protection
19.1 Both parties undertake to comply with the data protection provisions applicable to them.
19.2 All employees of Portolan Commerce Solutions GmbH are obliged to maintain data secrecy and to comply with the provisions of data protection law in accordance with the statutory provisions.
19.3 The provision of the contractually agreed data processing shall take place exclusively in a member state of the European Union or in another state party to the Agreement on the European Economic Area. Any relocation to a third country requires the prior consent of the customer and may only take place in accordance with the legal provisions on the transfer of personal data to third countries or international organizations in accordance with Art. 44 – 50 GDPR.
20. secrecy
20.1 The documents and information provided within the scope of the contractual relationship, including its initiation, may only be used for the purposes of the contractual relationship. In addition, the parties agree to maintain confidentiality regarding the content of the contractual relationship and the information obtained during its execution in accordance with the following provisions.
20.2 The parties undertake to keep confidential all business and trade secrets or information designated as confidential which they receive or become aware of from the other party during the performance of the contract.
20.3 The parties undertake not to disclose documents and information to be kept secret to third parties. Affiliated companies of the parties (Sections 15 et seq. AktG) and subcontractors shall not be deemed third parties if they have been obligated to maintain confidentiality. Also excluded is the transfer of information and documents to consultants of the parties who are bound to secrecy by law (Section 203 StGB).
20.4 Information and documents which were generally known and accessible at the time of disclosure or which were already known to the receiving party at the time of disclosure or which were legitimately made accessible to it by third parties are not covered by the confidentiality obligation.
20.5 The confidentiality obligation shall apply during the contractual relationship and for a further two years after termination of the contractual relationship.
20.6 Portolan Commerce Solutions GmbH’s right to refer to the provision of services for the customer in the context of references and marketing materials shall remain unaffected by the confidentiality obligation.
21. Export regulations
21.1 The customer shall be responsible for observing the import and export regulations applicable to deliveries and services, in particular those of the United States of America.
21.2 In the case of cross-border deliveries and services, the customer shall bear any customs duties, fees and other charges that may be incurred.
21.3 The customer shall handle legal or official proceedings in connection with cross-border deliveries and services on its own responsibility.
22. Jurisdiction and choice of law
22.1 In the event of differences of opinion regarding the validity and interpretation of this contract, the parties shall first conduct direct negotiations. In the event that direct negotiations fail, each party shall be entitled to initiate legal proceedings.
22.2 The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship is Heilbronn. However, Portolan Commerce Solutions GmbH shall also be entitled in all cases to bring an action at the place of performance of the performance obligation or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
22.3 The contractual relationship is subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
23 Final provisions
23.1 Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of these GTC.
23.2 With regard to subsequent amendments and supplements within the scope of the contractual relationship, the parties agree that a written agreement shall be required in this respect – including the waiver of the written form requirement. Unless otherwise regulated by law, e-mail does not comply with the written form requirement.