I. General Terms and Conditions
1. Scope, Changes
1.1. Scope, hierarchy of standards, deviating terms and conditions
For the business relationship between Green Solutions Software GmbH, Eva-Lessing-Str. 5, 26160 Bad Zwischenahn (hereinafter referred to as “Green Solutions”) and the customer (hereinafter referred to as “customer”), the following general terms and conditions (hereinafter referred to as “GTCs”) apply exclusively. Deviating conditions of the customer are not recognized unless Green Solutions expressly agrees to their validity in writing. This also applies if Green Solutions renders its services without reservation in the knowledge of the customer's deviating conditions.
1.2. Offer to company/ies
Unless expressly stated otherwise, Green Solutions addresses its offers and services exclusively to companies within the meaning of section 14 BGB (German Civil Code), i.e. to natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, exercise their commercial or self-employed professional activity act. If the customer or an interested party wishes to enter into a business relationship with Green Solutions in his capacity as a consumer within the meaning of Section 13 of the German Civil Code (BGB), i.e. as a natural person who enters into a legal transaction for purposes which can predominantly be attributed neither to his commercial nor to his independent professional activity, he shall expressly draw Green Solutions' attention to this circumstance prior to the conclusion of the contract.
1.3. Changes to the GTCs
Green Solutions can change these terms and conditions if the change is reasonable for the customer, taking into account the interests of Green Solutions. Green Solutions will inform the customer of a change in text form at least two months before the change takes effect. The customer can object to the change in text form within a reasonable period of time set by Green Solutions; if he does not object, the customer's consent to the changes shall be deemed to have been given. If the customer objects to the changes, the business relationship will be continued on the basis of the unchanged GTCs; in the event of an objection, however, Green Solutions has a special right of termination, which Green Solutions can exercise by means of a declaration to the customer two weeks after receipt of the objection. In the notification of change, Green Solutions will inform the customer of the possibilities of, deadline for and consequences of objection.
2. Conclusion of contract, prices, payment, default, contract period and termination
2.1. Form of contract conclusion
Offers from Green Solutions are subject to change and non-binding, unless the offer is designated as binding. A contract between Green Solutions comes into effect when Green Solutions declares its acceptance of the customer's offer to conclude a contract in text form, whereby transmission by email is sufficient.
2.2. Method of payment, invoicing
Payment to the Green Solutions' bank account must be made by direct debit. If there is a legitimate interest, in particular if the customer has more than one return debit note per contract year, Green Solutions can exclude the customer concerned from the direct debit payment method by means of a declaration in text form.
The customer agrees that Green Solutions sends the due invoices to the customer by email.
2.3. Prices and price changes
All prices quoted by Green Solutions do not include the statutory sales tax.
If the consumer price index for Germany officially determined by the Federal Statistical Office (Statistische Bundesamt) (based on 2020 = 100) increases or decreases by at least ten percent compared to the index published for the month in which the contract was concluded, the rent will automatically change up or down in the same percentage ratio for the following month.
In the event that Green Solutions has agreed a fixed price with the customer, Green Solutions is entitled at any time to increase this price without the customer being entitled to terminate the contract for this reason if the price increase is demonstrably the result of a right or an obligation arising from laws or regulations or an increase in purchasing costs, wages, etc. or for other reasons that were not foreseeable at the time the contract was concluded. In this case, the fixed price increases by an amount that reasonably takes into account the above circumstances.
If a price increase within the meaning of the previous paragraph (and not as a result of a contract change) occurs within three months of the conclusion of the contract, only the customer is entitled to dissolve the contract by means of a written declaration, unless Green Solutions is willing to fulfil the contract on the basis of the originally agreed price or if the price increase results from a right or obligation to which Green Solutions is subject by law.
2.4. Maturity, default, damage caused by default
Payment is due immediately after invoicing. The customer is in default without a reminder if he does not pay the amount due within fourteen days of receipt of the invoice. The decisive factor here is that the amount has been credited to Green Solutions' bank account within this period; in the case of payment by direct debit, this only applies if Green Solutions has initiated the direct debit in good time. If the customer defaults on payment, Green Solutions can demand default interest of ten percent per year, but at least the statutory default interest. In addition, Green Solutions can demand a reminder fee for each reminder in accordance with the currently valid price list, a maximum of 10 euros, notwithstanding section 288 (5) BGB. Green Solutions reserves the right to make further claims due to default.
2.5. Discontinuation of performance in the event of default
Green Solutions shall be entitled to suspend the provision of its services in whole or in part if the customer has been in default for at least four weeks with the payment of an amount corresponding to the average monthly amount payable in the last three months prior to the occurrence of default (if the business relationship has not lasted three months, since the beginning of the business relationship); the customer's obligation to pay shall remain unaffected in the event of suspension of the service.
2.6. Term of contract, termination
The minimum contract period is 36 months and the period for ordinary termination is 6 months at the end of the contract period. Unless otherwise agreed, the contract will be extended by a further 12 months after the end of the minimum contract period if it is not terminated with a notice period of 6 months to the end of the respective contract period.
Irrespective of this, the parties have the right to extraordinary termination for cause without observing a deadline. Cause for termination without notice for Green Solutions exists in particular if the requirements of Section 2.5. of these GTCs are met, the customer culpably violates his other obligations from the business relationship and, despite a warning, does not remedy the situation within a reasonable period of time or insolvency proceedings against the customer's assets are applied for, opened or the opening is rejected due to insufficient assets. Ordinary and extraordinary termination must be in text form to be effective.
3. Subject of performance, defects
3.1. Scope of performance, guarantee
The contract concluded in text form or the declaration of acceptance by Green Solutions is decisive for the scope, type and quality of the deliveries and services. Other information or requirements only become part of the contract if the contractual partners expressly agree on this or Green Solutions has confirmed this in text form. Subsequent changes to the scope of services require an agreement in text form or confirmation by Green Solutions in text form. If Green Solutions provides additional services without an additional charge, the customer has no claim to their provision. The assumption of a guarantee requires an express declaration by Green Solutions in text form using the term "guarantee". Green Solutions services that are not part of the contract will be billed according to the currently valid price list, which Green Solutions determines at its reasonable discretion.
3.2. State of the art, changes to services
Green Solutions provides its services according to the state of the art applicable at the time the contract was concluded. Green Solutions further reserves the right to deactivate or modify individual components of the services to be provided by Green Solutions in the event of a justified interest, in particular for reasons of system security or integrity, lack of technical availability/support of third-party software and services or due to statutory regulations or measures taken by public authorities; this shall only apply to the extent that the purpose of the contract is not jeopardised thereby and the modification is reasonable for the customer.
3.3. Time of service
Information on times of delivery and service are non-binding unless they have been designated as binding in writing by Green Solutions. Delivery and service periods are extended by the period in which the customer is in default of payment from the contract and by the period in which Green Solutions is prevented from delivering or performing due to circumstances for which it is not responsible, and for a reasonable start-up time after the end of the reason for the hindrance. These circumstances also include force majeure and labour disputes. Deadlines shall also be deemed extended by the period in which the customer fails to provide a contractual cooperation service.
3.4. Partial services
Green Solutions is entitled to partial performance insofar as this is reasonably usable for the customer.
3.5. Provision of services by subcontractors
Green Solutions is entitled to have the service performed by third parties (subcontractors).
3.6. Obligation to report defects
The customer is obliged to report defects to Green Solutions immediately. If the customer's cooperation is required to remedy the defect, he must support Green Solutions to the best of his ability.
3.7. Reminders from the customer
Reminders and deadlines set by the customer must be in text form to be effective. A grace period must be reasonable; it must be at least two weeks.
4. Customer duties
4.1. Accuracy, completeness and currency of data, password security
The customer is obliged to provide correct and complete information about his contact details and all other data relevant to the execution of the contract and to inform Green Solutions immediately of any changes. The customer is also obligated to keep safe any user data provided to him by Green Solutions for the purpose of using the service, in particular passwords and other authentication data, and not to pass them on to unauthorized third parties. The customer shall inform Green Solutions immediately if he becomes aware or has any indication that the user data is known to an unauthorized third party.
4.2. Legally compliant use of the services, indemnification
The customer is obliged to use the services of Green Solutions in accordance with the law and in particular not to violate legal prohibitions, morality and the rights of third parties, in particular copyrights, trademark rights and personal rights. In the event of a breach of this obligation, Green Solutions shall be entitled to discontinue the provision of the services without prior notice and without loss of the claim to remuneration, insofar as a claim by third parties is imminent or Green Solutions is presented with a judicial or official decision from which a corresponding obligation on the part of Green Solutions results; Green Solutions shall inform the customer of this without delay. The customer indemnifies Green Solutions from any claims by third parties that are based on culpable illegal or infringing actions of the customer, his legal representatives and vicarious agents or errors in the content of the information provided by the customer. The exemption extends in particular to copyright, trademark, data protection and competition law violations. The obligation to indemnify also includes the indemnification of reasonable costs of legal defence.
4.3. Cooperation
The customer is obliged to support Green Solutions in providing the services owed at his own risk and expense, insofar as the service owed cannot be provided without the cooperation of the customer. If the customer calls on third parties to cooperate, he is responsible for them as for his vicarious agents.
4.4. Obligation to provide information in the event of claims by third parties
If the customer is informed by third parties about alleged violations of rights that affect the provision of a service by Green Solutions, in particular violations of copyright, trademark and personal rights, the customer is obliged to inform Green Solutions of this immediately.
4.5. Data backup
Insofar as the data backup is not part of the scope of the services to be provided by Green Solutions, the customer undertakes to carry out data backups on the basis of which the corresponding data can be restored with reasonable effort.
5. Liability
Green Solutions, their legal representatives and vicarious agents are only liable for damages and compensation for wasted expenses, regardless of the legal reason, in the following circumstances:
- there was culpability,
- in the event of injury to life, limb or health,
- according to the provisions of the Product Liability Act (Produkthaftungsgesetz),
- in the event of fraudulent concealment of a defect or the assumption of a guarantee,
- in the event of gross negligence, whereby the liability is limited to the amount of the typical damage foreseeable at the time of conclusion of the contract, as well as in the event of a slightly negligent breach of material contractual obligations, i.e. contractual obligations the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the customer may regularly rely on, whereby the liability of Green Solutions is limited to the amount of the typical damage foreseeable at the time of conclusion of the contract, whereby in the area of application of the Telecommunications Act (Telekommunikationsgesetz, TKG) the liability regulation of section 44a TKG remains unaffected in any case.
For the rest, liability on the part of Green Solutions is excluded. This applies in particular to indirect damage, including consequential damage, lost profits, lost savings, damage to reputation and damage due to business interruption.
6. Intellectual property
1. Green Solutions reserves the rights and powers it may have under copyright law and/or other intellectual laws and regulations.
2. Green Solutions only lends delivered works and provided services, including but not limited to texts, websites, web shops, apps, photos, images, advice, technical descriptions, functional designs, digital newsletters, newsletter systems and other related services, to the customer and will never release source codes and intellectual property of the above goods.
3. The use of the delivered works and provided services takes place exclusively for the purposes provided for in the contract and as long as the client fulfils his obligations under the contract. If no agreements have been made about the intended use, the customer's right of use is limited to the use that was planned at the time the contract was concluded. Green Solutions must be verifiably informed of these plans before the contract is concluded.
4. Green Solutions is entitled to use the knowledge gained through the execution of a contract for other purposes and vis-a-vis third parties.
7. Websites, email marketing, newsletters and support
1. Green Solutions does not guarantee that the websites and systems will function properly in connection with all types or new versions of web and internet browsers and other software. Green Solutions also does not guarantee that the website will function properly in connection with all types of devices.
8. Software and data transfer
8.1. Granting of rights of use by Green Solutions
Within the scope of the agreed performance obligations, Green Solutions grants the customer a simple right of use, limited in time to the term of the contract plus a reasonable transition period, to the extent necessary to achieve the purpose of the contract, to its own software, its own content/data (e.g. photos, videos, signage) and the software and content of third parties. The customer is not permitted to transfer or grant sublicenses and/or licenses to third parties. After the end of the contract, the customer must delete or destroy any duplicates that may have been made available to him or made by him immediately, but no later than 1 month after the end of the contract.
8.2. Regulation on usage
When using all photos that contain plant material protected by patent or plant variety rights, please note that they may only be associated with the patented or variety-protected plant if permission has been granted by the owner of the patent, trademark or plant variety right. In the case of plant names that are also a registered trademark, the photos may only be associated with the brand name if the owner has given his consent to use the trademark. All brand names and trademarks mentioned within the offer and possibly protected by third parties are subject without restriction to the provisions of the respectively valid trademark law and the ownership rights of the respective registered owners. The customer indemnifies Green Solutions from all third-party claims due to the use of the photo licenses provided contrary to the agreement.
9. Service level
Green Solutions undertakes to provide the contractually agreed services during business hours with the agreed quality. Business hours are 24 hours a day, every day except for maintenance windows. Maintenance can be carried out Monday to Sunday between 5:00 p.m. and 8:00 a.m. and when maintenance work is urgently required to keep operations running (maintenance window). During the rest of the time, the contractually agreed services are available for at least 98% of the annual operating time (agreed quality).
10. Final provisions
10.1. Confidentiality
The parties will maintain secrecy about all information and documents of the other party that are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships and know-how ("confidential information"); this obligation continues after termination of the contract. Exempt from this obligation is such confidential information (i) which is demonstrably already known to the recipient at the time of conclusion of the contract or thereafter becomes known from a third party without thereby violating a confidentiality agreement, statutory provisions or official orders; (ii) which is publicly known at the time of the conclusion of the contract or is made publicly known thereafter, unless this is based on a breach of this confidentiality clause; (iii) which must be disclosed due to legal obligations or on the order of a court or authority, whereby, to the extent admissible and possible, the recipient obliged to disclose will notify the other party in advance and give it the opportunity to take action against the disclosure. The parties will only grant access to confidential information to such consultants who are subject to professional secrecy or who have previously been subject to obligations equivalent to the confidentiality obligations of this confidentiality clause. Furthermore, the parties will only disclose confidential information to those employees who need to know them to carry out the business relationship, and will also oblige these employees to maintain secrecy to the extent permissible under labour law for the time after they have left the company.
10.2. Prohibition of assignment, right of retention, set-off
The customer can only assign claims from the business relationship to third parties with the prior written consent of Green Solutions, whereby the consent may not be unreasonably withheld; section 345a HGB (German Commercial Code) remains unaffected. The customer is only entitled to a right of retention or to pleading that the contract has not been fulfilled within the respective contract. The customer can only offset claims from Green Solutions with undisputed or legally established counterclaims.
10.3. Jurisdiction, choice of law
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from and in connection with the business relationship is the registered office of Green Solutions. The same applies if the customer does not have a general place of jurisdiction in Germany, moves his domicile or usual place of residence abroad after the conclusion of the contract, or if neither his domicile nor his usual place of residence is known at the time the action is filed. Green Solutions is entitled to sue at the customer's general place of jurisdiction. The law of the Federal Republic of Germany applies to the business relationship.
10.4. Severability clause
Should a provision of these GTCs be or become invalid or should they contain a loophole that needs to be filled, this does not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a valid one that most closely corresponds to the economic purpose of the invalid provision. The same applies in the event of a contractual loophole.
