General Terms and Conditions
General Terms and Conditions
1. General Information, Scope, Changes to these General Terms and Conditions
1.1. Deutsche MTM - Gesellschaft Industrie- und Wirtschaftsberatung mbH, Elbchaussee 352, 22609 Hamburg, Germany, (hereinafter referred to as “MTMG”) exclusively offers entrepreneurs (hereinafter referred to as “Customer”, within the meaning of §14 of the German Civil Code), various software solutions for use via the Internet as a web application (hereinafter referred to as "Software") in accordance with the provisions of these General Terms and Conditions (GTC).
1.2. Any terms and conditions of the Customer or third parties shall not apply, even if MTMG does not separately contradict their validity in individual cases. Even if MTMG refers to a letter which contains or refers to the terms and conditions of the Customer or a third party, this does not imply any agreement with the validity of those terms and conditions.
1.3. MTMG reserves the right to change these General Terms and Conditions at any time in accordance with the following provisions. The Customer shall be informed of any changes to these General Terms and Conditions at the latest four weeks before the proposed date on which they take effect via the e-mail address provided by the Customer. If a Customer does not agree with a change intended by MTMG, the Customer can object to the change within one month after notification. If the Customer does object in due time, MTMG may terminate the contract for the use of the Software in writing with a notice period of one month to the end of the calendar month.
2. Subject Matter of the Contract, Rights of Use, Availability, Support
2.1. MTMG offers the Customer the use of the Software via the Internet in the form of Software as a Service (SaaS). The concrete range of functions of the Software as well as the respective requirements on the Customer’s side are determined according to the respective contractual agreements and otherwise exclusively according to the functions of the Software described on the internet page of MTMG when the contract is concluded.
2.2. MTMG can offer Customers trial access to beta or trial versions of the Software. During the trial period, use of the Software is regularly free of charge. After expiration of the trial period, the conclusion of a contract, with payment, is required for further use of the Software. During the trial period, the Customer has no claim to the use of the Software including the scope of functions offered by the Software.
2.3. Upon conclusion of the contract, the Customer shall be granted a simple, spatially unlimited, non-transferable, non-sublicensable and personal right to use the Software in accordance with the respective contractual agreements for the duration of said contract. The Customer is entitled to use the Software for the Customer’s own purposes. It is not permitted for the Customer to transfer the granted rights of use to third parties or
otherwise grant the possibilities of use to third parties. Such action allows for MTMG to terminate the contract without notice. The Customer grants MTMG a simple, spatially unlimited right to the data entered into the Software by the Customer for the performance of the contractual services. Simultaneous access by several authorized users of the Customer via one access account is not possible.
2.4. MTMG endeavors to offer the Software at an availability of 99% on an annual average. The following times of non-availability are not covered by the aforementioned estimated availability: non-availability caused by the Customer not having the necessary technical prerequisites required to access and use the Software; non-availability based on errors in the data transmission network, or such errors that lie within the area of responsibility of the data transmission company; non-availability caused by force majeure; and non-availability due to cases in which the cause of non-availability lies outside the area of responsibility of MTMG, in particular in the case of power failures and disruptions in the telecommunications networks. Furthermore, periods of non-availability due to routine maintenance or updating measures as well as due to announced necessary maintenance measures are not included.
2.5. MTMG has set up a support service for technical inquiries of the customer regarding functions of the software. Requests may be made via the support hotline indicated on MTMG's website at the times indicated there or by e-mail. Requests will be processed in the chronological order in which they are received.
3. Change of Services
3.1. MTMG may further develop, modify or supplement the Software in part or in whole, provided that the contractual purpose is not or only insignificantly impaired for the Customer. In addition, changes to the Software are permissible insofar as they are necessary for adaptation to the current state of technology or for optimization of the technical systems. If the changes and/or deviations should lead to a substantial limitation of the scope of services, the Customer may extraordinarily terminate the contract within six weeks of the occurrence of the substantial limitation. If the Customer does not exercise this right and if the Customer has been informed of this legal consequence in the notification of the change, the contract will be continued with the changed scope of services.
3.2. MTMG may also make new services available against payment or expand such services with fee-based services.
4. Order, Registration, Access
4.1. The Software offered on the internet pages of MTMG does not represent a legally binding offer; it is a non-binding invitation to the Customer to submit offers for the use of the
Software. After selecting the corresponding Software with the respective contract term and clicking the button “Place order” you make a binding offer to conclude a contract for the Software contained in the shopping cart. The confirmation of the receipt of the order takes place by automated e-mail immediately after sending the order and does not yet represent an acceptance of the offer and/or contract.
4.2. The contract between MTMG and the Customer is concluded with the written acceptance of the order by MTMG, the activation in the Customer portal or the use of the Software by the Customer, depending on which event occurs earlier.
4.3. The obligations under §312i Para. 1 Sent. 1 Nos. 1 to 3 and Sent. 2 of the German Civil Code (BGB) do not apply to business relations between MTMG and Customers who are not consumers within the meaning of §13 of the German Civil Code (BGB).
4.4. The use of the Software requires registration. The registration of a legal person may only be carried out by a natural person authorized to represent it, who must be named. By registering, the Customer assures that all personal and company data provided by the Customer during the registration process is complete and correct.
4.5. The Customer's access to the Software is password-protected via the Internet. The Customer shall keep the Customer’s access data and password secret and protect them from misuse by third parties. The Customer shall immediately inform MTMG in the case of loss of access data, password or suspicion of misuse of this data. MTMG is otherwise entitled to block access to the Software in the event of misuse. The Customer is liable for any misuse for which the Customer is responsible.
5. Prices, Terms of Payment
5.1. The prices are based on the price and payment information on the MTMG website at the time of the order. All prices do not include any value added tax applicable when payment is due.
5.2. Depending on the subscription selected, billing and invoicing is carried out monthly or annually by credit card (VISA or Mastercard), PayPal or direct debit, for either one month or one year in advance. The invoice amount is due for payment immediately after receipt of the invoice by the Customer and without deduction. The Customer agrees to the sending of an electronic invoice to the e-mail address provided by the Customer.
5.3. If the Customer is in arrears, MTMG may block access to the Software and stop the performance of the contractual services until all due claims from the entire business relationship with the Customer, irrespective of which legal foundation, have been settled by the Customer. The Customer shall pay interest on any money debts while the Customer is in arrears in accordance with §288 of the German Civil Code (BGB).
5.4. If the Customer terminates the contract before the end of the term of the selected subscription, no refund of the prepaid fees will be made. The same applies in the case of any justified extraordinary termination by MTMG.
6. Term and Termination
6.1. The term depends on the period of use chosen by the Customer, as well as on the information regarding the Software on the MTMG website at the time of the order, and begins with the conclusion of the contract. The term if the contract ends automatically at the end of the respective period of use without the need for a separate notice of termination.
6.2. The right to terminate the contract for cause remains unaffected. For cause exists, in particular, if the Customer has seriously or repeatedly violated these GTC or other contractual obligations despite a reminder/warning from MTMG, if the Customer is in arrears with the payment of an invoice despite at least two reminders/warnings, or if insolvency proceedings have been initiated against the Customer's assets, at least provisionally. Claims for damages remain unaffected by this.
6.3. Upon termination of the contract, MTMG shall immediately block the Customer's access to the Software. MTMG shall, at its own expense, reasonably assist the customer in backing up the data after termination of the contract and shall immediately delete the data after confirmation of successful backup and destroy all copies made, if any. The right to data portability in accordance with Art. 20 GDPR remains unaffected by this.
7. Obligations of the Customer
7.1. The Customer shall enable MTMG to render the services owed under the contract and shall cooperate in the rendering of said services to the extent required, insofar as this is necessary and reasonable.
7.2. The Customer shall independently and at the Customer’s own responsibility and expense create all necessary conditions for the use of the Software. This applies in particular to the necessary system requirements, the infrastructure and the telecommunications connection between the Customer and MTMG.
7.3. The Customer shall inform any other authorized employees or other authorized users of the Software of these General Terms and Conditions as well as any changes to these General Terms and Conditions in an appropriate manner prior to the first use of the Software and shall ensure that they comply with the above conditions.
7.4. The Customer shall ensure that the contractual use of the information, data and materials provided by the Customer via MTMG does not infringe any rights of third parties. In the
event of an infringement of industrial property rights of third parties, the Customer shall indemnify MTMG against all resulting claims and claims for damages as well as against the costs of legal defense in an appropriate amount evidenced by proper documentation.
7.5. The Customer is responsible for compliance with the Customer’s storage obligations. The Customer shall keep and maintain, in a lawful manner and as far as necessary, the Customer’s data, documents and results entered into the Software or secure them accordingly so that the Customer has access to such data, documents or results regardless of the availability of the Software.
8. Warranty and Limitation of Liability
8.1. The Parties agree that the warranty regulations of German Rental Law apply to the contract for the use of the Software. Strict liability for defects already existing at the time of conclusion of the contract according to §536a Para. 1(1) of the German Civil Code (BGB) is excluded. It is the responsibility of the customer to immediately notify MTMG of any defects, malfunctions or damages that occur. The warranty period is one year, unless MTMG has fraudulently concealed a defect or has assumed a guarantee for the quality of the Software.
8.2. MTMG is fully liable, without limitation in accordance with legal provisions, for intent and gross negligence, for claims made according to the German Product Liability Act, as well as for injury to life, body or health.
8.3. Furthermore, we and our vicarious agents are only liable for negligently caused material damage and financial loss in the event of a breach of a material contractual obligation, but our liability is limited in amount to any damages that were foreseeable at the time of conclusion of the contract and that are typical for a contract such as this. This limitation of liability also applies in the event of data loss and data deterioration.
8.4. MTMG is not liable for the loss of data insofar as the damage is due to the fact that the Customer has failed to comply with both the Customer’s legal obligations to store data and the Customer’s obligations pursuant to Section 7.5, and the lost data cannot therefore be restored with reasonable effort.
8.5. MTMG has no liability beyond that of the liability specified in Section 8.2 in regards to any trial access that was made available free of charge.
8.6. MTMG is not liable for damages caused by events beyond the control of MTMG. This applies in particular to damages caused by the Customer's lack of security precautions during data transmission.
8.7. The limitation period for possible claims for damages by the Customer is one year after they arise, unless MTMG has acted with gross negligence or intent.
9.1. The contracting parties shall be obliged to treat as confidential the information (including business secrets) made available to them under this contractual agreement by the respective other party as well as knowledge which they acquire on the occasion of this cooperation about matters of a technical, commercial or organizational nature of the respective other contracting party and not to exploit or use it or make it available to third parties during the term and after termination of this contractual agreement without the prior written consent of the party concerned. The disclosure to affiliated companies or to third parties who are subject to a legal obligation to maintain confidentiality does not require consent. The disclosure to employees who require the information for their activities in the performance of contractual services shall also not require consent. However, the parties shall ensure that such employees are bound by corresponding confidentiality obligations. Any use of such information shall be limited solely to use in connection with this contractual agreement. Each party shall notify the other party immediately upon becoming aware of any unauthorized disclosures or possible loss of confidential information.
9.2. Exempt from the obligation of confidentiality is information that (i) was already generally known at the time of the conclusion of the Agreement or subsequently became generally known without a breach of the obligations of confidentiality contained in this Agreement, (ii) was developed by the Recipient independently of this Agreement, (iii) was already previously available at the Recipient or (iv) was or will be received by the Recipient from third parties or outside of this Agreement from the other Party without an obligation of confidentiality. The burden of proving the existence of the exceptions set forth in this paragraph shall be on the party relying on the exception.
9.3. The confidentiality obligation shall not apply as far as the parties are obliged to disclose the information by law or by virtue of a final or non-appealable decision of an authority or court. In this case, the party obliged to disclose shall inform the other party in advance without undue delay of the obligation to disclose. In addition, the party obligated to disclose shall indicate in the course of the disclosure that, if this is the case, it concerns business secrets and shall work towards ensuring that these are treated confidentially.
9.4. The obligation to maintain confidentiality shall apply for the term of this Agreement as well as for a period of two (2) years after termination of this Agreement.
10. Final Provisions
10.1. The law of the Federal Republic of Germany applies to these GTC to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. If these GTC have been translated into another language from German, only the German version is binding for MTMG and the Customer.
10.2. If the Customer is a merchant, legal entity under public law or special fund under public law, the registered office of MTMG shall be the exclusive place of jurisdiction for all disputes arising out of and in connection with this contractual relationship.
10.3. No verbal ancillary agreements and/or supplements exist at the time of the conclusion of the contract. Ancillary agreements, amendments or supplements must be in writing in order to be effective. The withdrawing of the written form requirement also requires the written form. The written form within the meaning of these General Terms and Conditions shall also be deemed to have been complied with if e-mail is used.
10.4. If a provision of these GTC is invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The same applies if there is a gap in these GTC. In this case, the Parties shall replace the loophole or the invalid or void provision with a provision that corresponds to the economic purpose of the agreement and that comes as close as possible to what the Parties had intended.
II. Additional Terms and Conditions for the Use of MTM-Easy
1. The Customer is aware that the results calculated by MTM-Easy are only a guide time. The target time is the time in which a work assignment can be performed in a working system. Due to different influencing factors in everyday business, the target time can deviate considerably from the time actually required for a work assignment. Therefore, the only contractual obligation is the provision of MTM-Easy that supports the Customer in the best possible way for the calculation of time and the calculation of reference times.
2. The Customer has the possibility, at any time, to export the data entered by the Customer in a machine-readable format (csv).