General Terms and Conditions Tap-Tape
1. Scope
1.1 Provider of the service Tap-Tape is Peter Rullmann, Kaufmannstr. 3, D-66424 Homburg (hereinafter referred to as “Provider” or “we”). The Provider provides its services to its contractual partners (hereinafter: “Customers”) exclusively on the basis of these General Terms and Conditions (hereinafter: “GTC”). These shall also apply to future contracts between the parties, even if they are not expressly agreed again.
1.2 Deviating terms and conditions of the Customer shall not be recognized unless the Provider has expressly agreed to them in writing. The GTC shall also apply if the Provider provides its services without reservation in the knowledge of conflicting or deviating terms and conditions of the Customer.
2. Conclusion of Contract, Term of Contract, Termination
2.1 The Provider only concludes contracts with corporate customers.
2.2 Offers made by the Provider, in particular in advertising, are generally non-binding. The conclusion of the contract takes place with the acceptance of a concrete offer of the Provider by the Customer, otherwise, in the case of inquiries of the Customer, with the order confirmation by the Provider or the start of the service provision by the Provider. Unless otherwise agreed, the provider provides ongoing services in the sense of § 611ff. BGB.
2.3 Verbally expressed wishes of the Customer must be confirmed in writing by the Provider in order to be effective. The contract language is German.
2.4 Unless otherwise agreed, the contract shall be for an unlimited term with regard to the continuous provision of resources. The contract may be terminated at any time with three months’ notice.
2.5 The right of both parties to extraordinary termination for good cause shall remain unaffected. An important reason for the Provider exists in particular if the Customer is in default with the payment of the remuneration with an amount equal to two monthly fees and/or culpably violates an essential contractual obligation, and the Customer does not remedy the situation within a reasonable period of time despite a warning.
3. Subject Matter and Obligations
3.1 The Provider shall provide to the Customer the provision of NFC technology-based data carriers combined with the provision of appropriate resources for hosting and making publicly available content provided by the Customer via the Provider’s website (hereinafter: “Services” or “Resources”). For this purpose, the Provider shall provide the Customer with access to an account set up specifically for the Customer, where the Customer can implement all relevant content itself.
3.2 The Provider’s performance obligations shall otherwise result from the performance description of the respective product. Other commitments, promises of performance or ancillary agreements are only effective if they are confirmed in writing by the Provider.
3.3 The Provider shall be entitled to extend its services, to adapt them to technical progress and/or to make improvements. This shall apply in particular if the adjustment appears necessary to prevent misuse or if the Provider is obligated to adjust the services due to statutory provisions. The Provider shall inform the Customer of any planned changes in a timely manner.
3.4 If the Provider makes additional services available without additional compensation, the Customer shall have no claim to their performance. The Provider shall be entitled to discontinue or change such services, which were previously provided free of charge, or to offer them only against payment within a reasonable period of time. In such a case, the Provider shall inform the Customer in due time.
3.5 The Provider shall be obligated to provide technical support to the Customer only within the scope of what has been contractually agreed. Beyond that, the Provider shall not grant the Customer any support services free of charge, but shall invoice the Customer for such services on the basis of the respective valid price list, in the absence of such price list according to the amount customary in the industry. The Provider does not provide any direct support for clients of the Customer (hereinafter referred to as “Customer´s clients“).
4. Obligations of the Customer
4.1 The Customer warrants that the information provided by him is correct and complete. He undertakes to inform the Provider without delay of any changes to the contact details provided and of any other data required for the performance of the contract. The Customer warrants that – in the case of a natural person – he or she is at least 18 years old, an entrepreneur and fully legally competent in accordance with the applicable laws.
4.2 The Provider shall not itself become a contractual partner for contracts between the Customer and the Customer’s clients. The Customer shall refrain from all actions that create the appearance that the Provider is or will be a contractual partner of the Customer’s clients. The Customer shall be responsible for all processing of personal data of the Customer’s clients which is carried out via the resources made available by the Provider. In this respect, the Provider shall act as a processor for the Customer. The customer is responsible for the correctness of legal information (provider identification, source information, etc.). The Provider does not assume any legal verification.
4.3 The Customer shall assume all public and other fees and charges arising from the use of the Services, such as GEMA fees for uses that take place via the resources provided by the Provider for the Customer. In this respect, the Customer shall indemnify the Provider against all claims of third parties. In particular, the Provider shall have a right of retention as long as the Customer does not provide it with a certificate of indemnification with respect to the fees and charges.
4.4 The Customer may not, through the use of the Service and the media used therein such as texts, photos, videos, music files, links, etc. (hereinafter: “content“), violate legal prohibitions, morality and the rights of third parties (copyright, trademark, name, personality, data protection rights, etc.). The Customer further undertakes not to use the resources provided by the Provider for actions that violate legal prohibitions, morality and the rights of third parties. In the event of a violation of the aforementioned obligations, the Provider shall be entitled to discontinue its services with immediate effect or to block access to the Customer’s content; the same shall apply if the Provider is requested by a third party to change or delete content because it allegedly violates third-party rights. In the event that the Customer provides evidence that an infringement of third party rights or any other legal violation is not to be feared, the Provider shall make the affected resources available again. The Provider is entitled to regularly check the compliance of the Customer’s content with the contractual agreements and provisions. The Provider expressly reserves the right to claim damages.
4.5 The Customer undertakes to indemnify the Provider against all possible claims of third parties that are based on illegal or infringing actions of the Customer or errors in the content of the information provided by the Customer. This applies in particular to copyright, trademark, name, data protection and competition law infringements. The indemnification shall also include the costs incurred by the Provider as a result of an appropriate legal defense.
4.6 The Customer is obligated to comply with all legal regulations, in particular with regard to provider identification and data protection, and to provide appropriate information to its clients. The provider does not assume any responsibility for checking the content, for example, for the completeness of the imprint or the correctness or availability of the content or facts.
4.7 The Customer undertakes to keep logins and passwords received from the Provider for the purpose of accessing its services strictly secret. The Customer shall inform the Provider immediately as soon as it becomes aware that the password is known to unauthorized third parties.
5. Prices and payment
5.1 All payments shall be based on the prices stated in the description of services or agreed individually with the Customer. Prices quoted are net prices plus statutory value added tax.
5.2 Upon conclusion of the contract, the Provider shall be entitled to demand a reasonable advance payment.
5.3 The customer is in default even without a reminder if he does not pay within 14 days after receipt of an invoice.
5.4 In case of payment via Paypal or comparable payment providers, the corresponding terms and conditions of the payment providers shall apply in addition to these GTC. The customer authorizes the provider to collect the respective invoice amount from his account with the payment provider.
5.5 The Provider shall provide an electronic invoice. If the Customer requests that an invoice be sent by post, the Provider may charge a reasonable fee per invoice for this.
5.6 The temporary blocking of services due to culpable action on the part of the Customer shall not affect the Customer’s payment obligation.
5.7 In the case of marketing customers, the Provider shall be entitled to demand a reasonable hosting fee from the Customer for the continued provision of the services, the amount of which shall be determined in accordance with the Provider’s respective price list; if such a fee is not specified therein, it shall be measured in accordance with the usual reasonable costs for comparable hosting services.
6. Warranty
6.1 The Customer shall notify the Provider of any defects without undue delay and shall support the Provider to the best of its ability in the event of a possible rectification of defects, in particular by taking all reasonable measures for data security.
6.2 The Provider points out that, according to the current state of the art, it is not possible to create hardware and software in such a way that it works error-free in all application combinations or can be protected against any manipulation by third parties. The Provider does not guarantee that hardware and software used or provided by the Provider meets the Customer’s requirements, is suitable for certain applications, and furthermore that it is free of crashes, errors and malware. The Provider warrants to the Customer only that the hardware and software used or provided by the Provider will function substantially in accordance with the product description at the time of transfer, under normal operating conditions and with normal maintenance.
6.3 The Provider is not obligated to back up the content used by the Customer. The Provider shall not be liable for the existence and/or the possibility of a renewed transfer of the data. The Customer itself is obligated to properly store and back up data.
7. Liability
7.1 The Provider shall be liable, irrespective of the legal grounds, only in accordance with the following provisions.
7.2 The Provider shall be liable for intent and gross negligence in accordance with the statutory provisions.
7.3 In the event of slight negligence, the Provider shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and the observance of which the Customer may regularly rely on (cardinal obligation); in these cases, the Provider shall only be liable in the amount of the foreseeable damage typical for the contract.
7.4 In cases of slight negligence, liability for all other damages, in particular consequential damages, indirect damages or lost profits, is excluded.
7.5 The above limitations shall not apply in the event of injury to life, limb or health, in the event of fraudulently concealed defects and in the event of liability under the Product Liability Act.
7.6 Insofar as the liability of the Provider is excluded or limited, this shall also apply to the liability of the employees, other staff, representatives and vicarious agents of the Provider.
8. Rights of use
8.1 The Provider grants the Customer a non-exclusive (simple) right of use, limited in time to the term of the contract, to its own and third-party resources provided, such as the software. The processing, duplication, transfer, except with the consent of the Provider by way of contract transfer, as well as the granting of sub-licenses to third parties are particularly not permitted. Further use after termination of the contract is not permitted. For open source programs, the respective valid license terms of the respective provider of the software shall also apply.
8.2 In principle, the contents shall be made available to the Customer’s clients for an unlimited period of time. The Customer therefore grants the Provider a non-exclusive right of use to all content provided by the Customer for the term of the contract and beyond for an unlimited period of time, so that the Provider can properly perform its services and continue to make the content available to the Customer’s clients after the end of the term of the contract; however, the Customer reserves the right to revoke the right of use with respect to individual content, provided that important reasons are presented by the Customer. In addition, the Provider shall be entitled, at its own discretion, to no longer make the content available after the end of the term if, in particular, economic considerations so dictate.
9. Reference naming, e-mail advertising
9.1 The Provider shall be entitled to name customary trademarks of the Customer (e.g. graphic logo) as well as the name of the Customer as a reference, in particular to reproduce them in online media for advertising purposes. In this context, the Provider shall also be entitled to use images of the end product (tape) and individual contents for promotional purposes, provided that the interests of the Customer are not unreasonably impaired thereby.
9.2 Pursuant to Section 7 (3) of the German Unfair Competition Act (UWG), the Provider shall be entitled to send the Customer direct advertising for its own similar goods or services by e-mail. The Customer may object to this use at any time (e.g. by e-mail to the Provider) without incurring any costs other than the transmission costs according to the prime rates.
10. Data protection: information obligations of the Provider towards the Customer
10.1 The Customer’s personal data required for the performance of the contract shall be processed by the Provider for the purposes of order processing (contacting, contract performance, billing) (Art. 6 (1) lit. b GDPR). Data will not be disclosed to third parties unless this is necessary for the execution of the order (e.g. service providers required for the order such as hosting providers) or on the basis of a legitimate interest (e.g. tax advisor, debt collection service provider, customer satisfaction survey, advertising for the provider’s own services) or required by law (e.g. due to requests from tax and investigative authorities). If the data is no longer required for order processing and there are no warranty periods and/or statutory retention obligations to the contrary, the data will be deleted.
10.2 Data subjects have a right to free information about the data stored about them. Furthermore, they have the right to correction, deletion, restriction of processing, objection to processing and data portability, if applicable. Data subjects may contact the local data protection supervisory authority for complaints. If personal data is processed on the basis of consent under data protection law, the data subject may revoke such consent at any time with effect for the future.
10.3 Insofar as personal data are processed on the basis of legitimate interests pursuant to Art. 6 (1) lit. f GDPR, the data subject has the right to object to the processing with effect for the future pursuant to Art. 21 GDPR, insofar as there are grounds for doing so that arise from his or her particular situation or the objection is directed against direct advertising. In the latter case, the data subject has a general right to object, which is implemented without specifying a particular situation.
11. Data protection: Regulations on data processing pursuant to Art. 28 DSGVO
11.1 If the Provider acts as a processor (Art. 4 No. 8 GDPR) on behalf of the Customer (controller pursuant to Art. 4 No. 7 GDPR) pursuant to Art. 28 GDPR, the Provider shall provide sufficient guarantees that appropriate technical and organizational measures are implemented in such a way that the data processing is carried out in accordance with the requirements of the GDPR and ensures the protection of the rights of the data subject.
11.2 With regard to sub-processors, the Provider shall ensure compliance with Article 28 (2) and (4) of the GDPR. Mere ancillary services used by the Provider, e.g. as telecommunication services, postal/transport services, maintenance and user service or the disposal of data carriers as well as other measures to ensure the confidentiality, availability, integrity and resilience of the hardware and software of data processing systems, do not require consent. In these cases, however, the Customer shall have the right to object to the selection of certain subcontractors if there are important reasons for doing so. In this case, the Provider shall replace the subcontractor with a suitable other subcontractor. For the hosting of the required resources, the Provider shall use the services of the company OVH. The Customer agrees to this upon conclusion of the contract.
11.3 The subject and duration of the processing, the type and purpose of the processing, the type of personal data, the categories of persons affected and the obligations and rights of the Customer result from the GTC and the contract concluded between the parties.
11.4 The Provider shall process the Personal Data only upon documented instructions of the Customer – including with regard to the transfer of Personal Data to a third country or an international organization – unless the Provider is required to do so by the law of the European Union or the Member States to which the Provider is subject; in such case, the Provider shall notify the Customer of such legal requirements prior to the processing, unless the relevant law prohibits such notification due to an important public interest.
11.5 The Provider shall ensure that the persons authorized to process the personal data have committed themselves to confidentiality.
11.6 The Provider shall take the measures required under Art. 32 GDPR. The Provider reserves the right to change the security measures taken, but it must be ensured that the contractually agreed level of protection is not undercut.
11.7 The Provider shall support the Customer as far as possible with suitable technical and organizational measures in fulfilling its obligation to respond to requests to exercise the rights of the data subject set out in Chapter III of the GDPR. The Provider shall also assist the Customer in complying with the obligations set out in Articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information available to the Provider. For the support, the Provider may demand an appropriate effort-related remuneration, provided that the effort is disproportionate in relation to the main service.
11.8 Upon completion of the provision of the Processing Services, the Provider shall, at the Customer’s option, either delete or return all Personal Data and delete the existing copies, unless there is a right or obligation under European Union or Member State law to continue storing the Personal Data.
11.9 The Provider shall provide the Customer with all necessary information to demonstrate compliance with the obligations set forth in Article 28 GDPR and shall enable and contribute to inspections – including in-spections – carried out by the Customer or another auditor appointed by the Customer. Inspections shall be carried out during normal business hours without disrupting operations after notification, taking into account a reasonable lead time. The Provider may make them dependent on prior notification and on the signing of a declaration of confidentiality with regard to the data of other customers and the technical and organizational measures set up. The Provider may charge an appropriate expense-related fee for support in carrying out an inspection.
11.10 The Provider shall inform the Customer without undue delay if the Provider is of the opinion that an instruction violates the GDPR or other data protection provisions of the European Union or the Member States.
11.11 In the event of a claim being made against one of the parties by a data subject in respect of any claims under Art. 82 GDPR, the parties undertake to support each other in defending the claim to the extent possible.
12. Final Provisions
12.1 The law of the Federal Republic of Germany shall apply to the exclusion of the conflict of laws rules.
12.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, the Provider’s registered office shall be the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship. In addition, the Provider shall be entitled to sue the Customer at its general place of jurisdiction.
12.3 Should any provision of the contract be or become invalid or should the contract contain a gap that needs to be filled, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision by a valid provision which comes closest to the economic purpose of the invalid provision. The same shall apply in the event of a gap in the contract.
