1. the services
1.1 FIXFIRST Services. The subject matter of the contract is the
a) provision by FIXFIRST of a software (“SOFTWARE”) as a web browser-based version and mobile application, which enables the USER to digitalize and automate the work processes of his company in relation to his customers, from the preparation of quotations and order documentation to billing support and integration of video services,
b) the granting of storage space by FIXFIRST in connection with the use of the SOFTWARE, together the “SERVICES”. The respective current functional scope of the SOFTWARE and other SERVICES results from the current service description on the website of FIXFIRST (https://www.FIXFIRST.io) (“SERVICE DESCRIPTION”).
None of the descriptions of the SERVICES and none of the provisions of this AGREEMENT constitute a warranted characteristic or guarantee on the part of FIXFIRST.
1.2 Internet Connection.
The use of the SERVICES by the USER and the END USERS requires a working Internet connection for each terminal device used for this purpose. The speed of the SERVICES depends on the speed of the Internet connection used. There is an “Offline Mode” in which the USER or END USER can view information previously downloaded to their end device and in which the USER or END USER can begin documenting SERVICES; however, the “Offline Mode” is only used to bridge the gap when there is temporarily no Internet connection. The provision of an internet connection is not part of this AGREEMENT. If applicable, the USER and the END USER will incur separate costs for the download of the APP and the use of the SERVICES on the part of his or her respective mobile phone provider for the data transmission via the Internet. The USER is obliged to inform the END USERS about this circumstance, if it is not otherwise known to the END USERS. According to the current state of the art, data communication via the Internet is not error-free and not available at all times. FIXFIRST shall not be responsible for any limited usability of the SERVICES based thereon.
1.3 System requirements.
The SOFTWARE can be used in two versions:
as a web browser-based version for use on a PC using the latest version of a commercially available web browser (e.g. Safari, Mozilla Firefox, Google Chrome; however, access via Internet Explorer is not fully supported); and
as a mobile application (“APP”) on smartphones with a current Android or iOS operating system. The APP must be downloaded by the USER and the END USERS from the Apple Appstore or Google Play Store (each an “APP STORE”) under the terms and conditions applicable therein.
The USER and the END USERS are obliged to keep the downloaded APP always up to date and to install new versions or updates published in the APP STORE immediately in order to ensure the function of the SOFTWARE. The same applies to updates of his used web browser.
The SERVICE contains hyperlinks to offers and services of third parties (e.g. Google Maps). Following such a link opens the website or app of the respective third party provider. FIXFIRST has no influence on the content of third party websites or apps and does not become a party to or otherwise assume any obligations under any third party agreements to which the USER or END USER agrees via such websites or apps. FIXFIRST is neither able nor obliged to review third-party websites or apps, but will remove hyperlinks to unlawful content in accordance with applicable law if it becomes aware of such unlawfulness.
1.5 Third Party Content.
The SERVICES allow the USER and END USER to access certain platforms, content or information provided by third parties (“THIRD PARTY CONTENT”) (e.g. product and price information provided by wholesalers in relation to goods used by the USER in the course of its business). FIXFIRST is not responsible for THIRD PARTY CONTENT and does not verify its accuracy. The source of the THIRD PARTY CONTENT provided through the SOFTWARE will be indicated in the SOFTWARE to the extent possible. THIRD PARTY CONTENT is used by the USER at his own choice and responsibility. The USER acknowledges that the nature, type, quality and availability of the THIRD PARTY CONTENT may change at any time.
1.6 Granting of storage space.
1.6.1 FIXFIRST grants the USER storage space on a server operated by FIXFIRST or one of its subcontractors for the storage of data of the USER (“USER DATA”) within the scope of the intended use of the SOFTWARE. With the exception of the scope described in clause 1.7, the USER shall not be entitled to transfer this storage space to a third party for use, in part or in full, against payment or free of charge. FIXFIRST reserves the right to limit the storage space available per User during the RUN TIME by means of the modification process described in clause 6.1.
1.6.2 The USER assures not to store any content on the storage space, the storage, provision, publication or use of which in the context of the intended use of the SERVICES violates applicable law, third party rights, official requirements or agreements with third parties. USER shall ensure that this obligation is also complied with by its END USERS.
1.6.3 FIXFIRST shall be entitled to immediately block the storage space if there is reasonable suspicion that the stored USER DATA is illegal and/or infringes third party rights. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform FIXFIRST thereof. FIXFIRST will notify the USER of the block and the reason for it in an appropriate manner. FIXFIRST will lift the block as soon as the suspicion is invalidated. 1.6.4.
1.6.4 At the request of the USER, at the end of the RUN TIME, the USER DATA shall be provided to the USER in a common format. If no other format is specified by FIXFIRST, the data shall be provided in CSV file format or, for files uploaded by the USER, in the format in which the respective files were uploaded. FIXFIRST shall not be obliged to process or convert the USER DATA. The transfer of the USER DATA shall take place at the discretion of FIXFIRST either in the form of sending a common data carrier at the expense of the USER or by providing the files for download by the USER. The USER shall provide FIXFIRST with all information necessary for the fulfillment of the duty to surrender. The USER shall not be entitled to also receive the software suitable for the use of the USER DATA. The USER’s request to surrender the USER DATA must be received by FIXFIRST no later than the end of the RUNNING PERIOD, in case of termination by FIXFIRST no later than five (5) business days after the end of the RUNNING PERIOD. Thereafter, FIXFIRST shall not be obliged to further maintain the stored USER DATA. If the USER DATA is made available to the USER for download, the USER shall perform the download within seven (7) calendar days after notification of the provision by FIXFIRST, unless a longer period is notified by FIXFIRST; thereafter, the USER DATA shall be deleted by FIXFIRST. Notwithstanding any mandatory data protection requirements, FIXFIRST reserves the right to release the USER DATA in accordance with this clause 1.6.4 only if the USER has paid all fees due to FIXFIRST under this AGREEMENT.
1.7 Use of the SERVICES by the USER and END USER.
The USER may allow its employees or other persons employed by the USER (e.g. freelancers) to use the SERVICES on behalf of the USER to fulfill the USER’s business purposes through the ACCOUNT in accordance with the provisions of this AGREEMENT (“END USER”). The USER must register each END USER as such within the SERVICES by name (Named User License / personal license) and is obligated to pay the usage fee accruing for each END USER pursuant to Section 4.1.
FIXFIRST may subcontract or involve subcontractors with respect to the provision of the SERVICES or parts thereof. The use of subcontractors shall not release FIXFIRST from its sole obligation towards the USER to fully perform the contract. To the extent that subcontractors process personal data of the USER on behalf of FIXFIRST, the provisions of the GCU agreed upon with FIXFIRST (as defined in clause 5.1) shall apply in addition with respect to subcontractors.
FIXFIRST shall endeavor, within the scope of its technical and organizational possibilities, to enable the use of the SOFTWARE during the usual business hours (weekdays between 7:00 a.m. and 10:00 p.m.) on an annual average with an availability of 98.5%. Excluded from this are times during which the SERVICES or individual functionalities are not available or only available to a limited extent due to technical or other problems for which FIXFIRST is not responsible (e.g. disruptions caused by the Internet or due to force majeure), or due to maintenance work of a reasonable scope. As far as possible (i.e. unless the work has to be carried out at shorter notice for justified reasons), FIXFIRST shall inform the USER of maintenance work that affects the functionality of the SERVICES to a more than insignificant extent in the SOFTWARE 48 hours in advance (e.g. by displaying corresponding messages when logging into the SOFTWARE). The SOFTWARE may also be used outside the aforementioned normal business hours, however, no promises of availability are made in this regard.
The scope of the support results from the current description on the website of FIXFIRST (https://www.FIXFIRST.io/) at the time of the conclusion of the contract. The support is available on working days between the times published on the FIXFIRST website. The USER may contact a competent support representative either by chat on the FIXFIRST website or by telephone or e-mail using the contact details provided on the FIXFIRST website or otherwise communicated to the USER by FIXFIRST.
2.1 Rights to use the SOFTWARE.
Subject to the provisions of this AGREEMENT, FIXFIRST grants the USER the non-exclusive, non-sublicensable, non-transferable right, limited in time to the TERM of the AGREEMENT, to use the SOFTWARE designated in this AGREEMENT within the scope of the contractual use of the SERVICES. The USER is not entitled to make the SERVICES available for use by third parties against payment or free of charge, except within the scope of clause 1.7. Thus, the USER is expressly not allowed to sublet, sell or otherwise distribute the SOFTWARE. The USER may only copy the SOFTWARE as far as this is necessary for the intended use of the SOFTWARE according to the applicable SERVICE DESCRIPTION between the PARTIES (e.g. caching of the SOFTWARE in the RAM). Subject to clause 2.5, the USER may not copy, modify or decompile the SOFTWARE. The USER is obliged to ensure that his END USER complies with the restrictions of use.
2.2 Rights of use of the USER DATA.
The contents stored by the USER or his END USERS on the storage space designated for him may be protected by copyright and data protection laws. The USER hereby grants FIXFIRST the right to make the USER DATA accessible to the USER and to the END USERS registered for his ACCOUNT when they make queries via the Internet and, in particular, to reproduce and transmit them for this purpose, to reproduce them for the purpose of data backup and also to use them otherwise to the extent necessary for the performance of this AGREEMENT. The USER hereby assures that he has all the rights to the USER DATA necessary for the aforementioned granting of rights or has had these granted to him by third parties (including his END USERS) to the extent necessary.
2.3 Feedback and suggestions.
If the USER or an END USER submits to FIXFIRST any suggestions, recommendations or ideas (collectively, “Suggestions”) as to how the SERVICES could be improved, FIXFIRST and its licensees may use such Suggestions without any restriction and without the obligation to pay any compensation to the USER or END USER worldwide and for an unlimited period of time (including but not limited to the implementation of such Suggestions within the SERVICES).
2.4 Customer references
The USER allows FIXFIRST to use the following information as customer references, free of charge and royalties: Company logo, quotes and image and sound recordings made during the joint cooperation (introductory phase and beyond). Furthermore, the USER allows FIXFIRST to use said customer references for marketing purposes in the context of presentations, publications on the website http://www.FIXFIRST.io and in the channels of social media used by FIXFIRST as well as in press releases (print and online). FIXFIRST shall utilize and store corresponding data in accordance with applicable data protection provisions.
2.5 Marketing activities
2.6 Mandatory law.
Mandatory regulations of the copyright law (if and as far as they are applicable to the SOFTWARE) remain unaffected by this AGREEMENT.
3. further obligations of the user
3.1 User account.
In order to use the SERVICES, the USER must create and maintain a user account (“ACCOUNT”) when registering for the SERVICES. The USER agrees to keep access data such as the combination of login data and password strictly confidential, not to disclose this information to third parties and to oblige his END USERS to do the same. The USER is responsible to FIXFIRST for all activities carried out in his ACCOUNT with the help of his login data or the login data of an END USER.
3.2 Obligations of the USER.
The USER shall ensure that (i) all information provided by the USER to FIXFIRST upon registration or as part of the SERVICE is accurate and up to date, and that USER keeps this information up to date during the TERM, (ii) that USER transmits and processes all personal data of third parties that USER transmits or otherwise processes as part of the SERVICES only in accordance with the applicable law, (iii) that USER’s use of the SOFTWARE and other SERVICES does not violate any agreements with third parties that USER has entered into, including, without limitation, agreements with the operator of the APP STORES where USER downloaded the APP (“APP DOWNLOAD PROVIDER”), and (iv) neither the SOFTWARE nor the SERVICES or any part thereof is used in any manner not expressly permitted by this AGREEMENT.
3.3 Passing of Duties to END USER.
USER shall pass on all obligations arising from this AGREEMENT for the use of the SERVICES to its END USERS and oblige them to comply with them. In relation to the END USERS, the USER shall ensure that the END USERS comply with these obligations.
3.4 Responsibility of the USER for the END USERS.
The actions of the END USERS in relation to the SERVICES shall be attributed to the USER. The USER shall be responsible to FIXFIRST for ensuring that all END USERS use the ACCOUNT and the SERVICES only in accordance with the provisions of this AGREEMENT. The USER shall be liable to FIXFIRST for any violation of the provisions of this AGREEMENT by his END USERS as for his own violation. As soon as USER has knowledge of a violation of the obligations under this AGREEMENT by an END USER, USER shall immediately suspend the access of this END USER to the USER DATA and to the SERVICES.
3.5 Authorization Policy.
The USER may assign various authorizations to the END USERS to perform actions within the scope of the functionalities of the SERVICES (e.g. restricting the possibility to make declarations or issue invoices on behalf of the USER). The USER is responsible for granting the END USERS only those rights within the scope of the functionalities of the SERVICES that they are supposed to exercise within the scope of their respective activity for the USER.
3.6 No representation.
The USER acts in his own name and for his own account. He has no authority to legally represent or bind FIXFIRST to third parties, nor may he give such an impression.
4.1 User fee.
The USER is obligated to pay the usage fee for the USER and all END USERS plus statutory VAT during the CURRENT PERIOD in accordance with the provisions of Section 4.2. Unless otherwise agreed, the usage fee and the billing period shall be based on the prices shown on the FIXFIRST website at the time of the conclusion of the contract.
4.2 Payment terms.
The usage fee shall be paid in advance by the USER at the beginning of the billing period, either monthly or annually, depending on the agreement (by the third banking day at the latest). For this purpose, the USER shall choose a payment method offered by FIXFIRST (depending on the corresponding offer on the part of FIXFIRST) when registering for the SERVICES.
5. data protection
5.2 The USER shall be responsible for its own compliance with all provisions of the applicable data protection laws, including compliance with disclosure and information obligations towards its END USERS, employees, customers and other data subjects, as well as compliance with relevant deletion periods. The USER must ensure that it is authorized to process the personal data of its END USERS, employees, customers and other data subjects within the scope of the SERVICES. If required for the contractual use of the SERVICES, the USER shall obtain all necessary rights (including, if applicable, required consents) for the corresponding processing of the personal data of its END USERS, employees, customers and other data subjects.
5.3 FIXFIRST shall not be responsible if the USER or the END USERS use the SERVICES in a way that violates applicable data protection law. Any corresponding liability of FIXFIRST is excluded.
6 Changes to the Services
6.1 Changes to the SERVICES.
The SERVICES may be updated and continuously developed over time. FIXFIRST may change the SERVICES without prior consent of the USER, provided that the change is reasonable taking into account the interests of the USER. In particular, a change is reasonable for the USER if it is necessary to adapt the SERVICE to changed conditions in terms of technical developments, market requirements or changes in applicable law, as well as in case of addition of new features, functions or services to the SERVICE. The USER is granted a right of use only for the version of the SERVICES current at the relevant time. The USER shall be notified of significant changes to the SERVICES in an appropriate manner (e.g. by displaying corresponding messages when logging into the SOFTWARE) fourteen (14) calendar days in advance. If a change in the SERVICES is not reasonable for the USER, the USER shall be entitled to terminate the AGREEMENT by giving notice with effect from the notified date of the change becoming effective. In this case, any overpaid monthly usage fee shall be refunded to the USER on a pro rata basis.
6.2 Changes to the APP.
FIXFIRST may from time to time provide the USER with an updated version of the APP free of charge. Such updated versions of the APP shall be made available in the same way as the version of the APP originally downloaded by the USER or the END USERS through the APP STORE, the use of which shall be subject to separate agreements between the USER or the END USERS on the one hand and the APP DOWNLOAD PROVIDER on the other hand, and the availability and functionalities of which shall not be the responsibility of FIXFIRST. If the APP DOWNLOAD PROVIDER offers such functionality and the USER’s or END USER’s device is configured accordingly, updated versions of the APP may be installed automatically; otherwise, manual installation by the USER and END USERS in accordance with the APP DOWNLOAD PROVIDER’s instructions is required. Notwithstanding the foregoing, FIXFIRST provides the SERVICES to users of the most current version of the APP and cannot ensure support for older versions.
7. material defects
FIXFIRST shall, to the extent technically feasible, remedy any defects in the SOFTWARE as set forth below. A defect exists if the SOFTWARE does not fulfill the functions specified in the DESCRIPTION OF SERVICES, so that its use is impossible or limited. The elimination of errors by FIXFIRST shall be carried out as follows:
a) The elimination of serious errors (i.e. the use of the SERVICES or significant parts thereof is no longer possible or is significantly restricted) shall take place immediately upon FIXFIRST’s knowledge or information by the USER.
b) In all other cases, the elimination of errors shall take place within a reasonable period of time via updates within the framework of normal release planning.
8. relationship with the app download provider
For the avoidance of doubt, the PARTIES state that the APP DOWNLOAD PROVIDER is not a party to this AGREEMENT and is not subject to any obligations under this AGREEMENT. In particular, the APP DOWNLOAD PROVIDER shall have no obligation to provide maintenance or support for the SOFTWARE or the SERVICE, nor shall it be subject to any warranty or product liability obligations with respect thereto. The APP DOWNLOAD PROVIDER is also not responsible for any third party claims arising from the fact that the APP or the SERVICE or their possession and use by the USER or the END USERS infringe the intellectual property rights of third parties.
9 Term and Termination
9.1 This AGREEMENT is concluded for an indefinite period of time. The period for which this AGREEMENT is in force is the “TERM”. Unless otherwise agreed, the AGREEMENT may be terminated by either PARTY upon (thirty) 30 days’ ordinary notice to the end of the RUNNING TIME. If a MINIMUM TERM has been agreed in the AGREEMENT, termination is possible only after the expiry of the MINIMUM TERM. If the AGREEMENT has not been terminated, the RUN TIME shall be automatically extended by the agreed MINIMUM RUN TIME. If no minimum term and no deviating provision has been agreed, the RUN TIME shall be automatically extended by one year.
9.2 Furthermore, the USER may terminate the right of use for individual END USERS by giving (thirty) 30 days’ notice to the end of the RUN TIME or MINIMUM RUN TIME. When the termination takes effect, the right of use of the respective END USER to the SERVICES shall expire. The total usage fee to be paid by the USER shall be reduced by the usage fee for the terminated END USER(s) as soon as the termination of the END USER’s right of use takes effect. Despite termination of the right of use for a FINAL USER, the USER shall be obliged to pay the corresponding usage fee until the terminated FINAL USER has actually stopped using the SERVICES.
9.3 The right of each PARTY to terminate this AGREEMENT for good cause if the legal requirements are met shall remain unaffected. In particular, FIXFIRST shall be entitled to terminate without notice if the USER fails to make due payments despite a reminder and a grace period or violates the contractual provisions regarding the use of the SERVICES and fails to remedy the violation within a reasonable period of time despite a request by FIXFIRST.
9.4 The termination must be made in writing or in text form. In case of termination of the AGREEMENT, the USER shall cease using the SOFTWARE, remove all installed copies of the SOFTWARE from its equipment and ensure that its END USERS do the same.
10 Liability of FIXFIRST
10.1 FIXFIRST shall be liable without limitation for damages resulting from injury to life, body or health, as well as for any other damages caused by intent or gross negligence on the part of FIXFIRST, its employees, officers, legal representatives or agents.
10.2 In the event of a slightly negligent breach of an essential contractual obligation, the liability of FIXFIRST shall be limited to the amount of the damage which is foreseeable and typical at the time of the conclusion of the contract in accordance with the type of transaction governed by this AGREEMENT. Material contractual obligations are such obligations which form the basis of the AGREEMENT, are decisive for the achievement of the purpose of the contract and on the fulfillment of which the USER may rely.
10.3 Liability for damages caused by a defect of the SERVICES which already existed at the time of the conclusion of the AGREEMENT shall be excluded, provided that the damages were not caused negligently or intentionally by FIXFIRST.
10.4 Furthermore, FIXFIRST shall not be liable for the loss of data to the extent that the damage is due to the USER’s failure to perform adequate data backups and thus to ensure that lost data can be restored with reasonable effort (§ 254 BGB).
10.5 Mandatory statutory provisions, in particular the provisions of the Product Liability Act, shall remain unaffected.
10.6 Any liability of FIXFIRST for damages suffered by the USER (irrespective of the legal nature of the claim, whether in contract, tort or otherwise) beyond the scope of clauses 10.1 to 10.5 shall be excluded.
10.7 The above limitation of liability shall also apply to the personal liability of FIXFIRST’s employees, officers, legal representatives and vicarious agents.
Notwithstanding any other existing liability of the USER, the USER shall indemnify and hold harmless FIXFIRST upon first request from any damages and costs arising out of or in connection with any third party claim relating to a breach by the USER of the obligations under clauses 1. 6.2, 2.2 sentence 3, 3.2 or 5.2. The same obligation shall apply to the USER for a breach of the obligations under clauses 1.6.2 or 3.2 (in conjunction with clause 3.3) by a FINAL USER. Sentences 1 and 2 shall not apply if the USER is neither wholly nor partially responsible for the respective breach.
12.1 Both PARTIES undertake to keep confidential the CONFIDENTIAL INFORMATION received from the respective other PARTY in the course of the preparation or execution of this AGREEMENT even after the termination of this AGREEMENT. This means, in particular, that the PARTY bound to secrecy (the “CONFIDENTIAL PARTY”) shall not disclose such information to third parties, either itself or through employees, or otherwise use it for purposes other than those contractually agreed between the PARTIES. For the purposes of this AGREEMENT, “CONFIDENTIAL INFORMATION” shall mean all information which is clearly marked as confidential information, described as such or otherwise made recognizable as such, or which is to be regarded as confidential due to its content, in particular business or trade secrets.
12.2 This obligation to protect CONFIDENTIAL INFORMATION does not include such information that has
was demonstrably already accessible to the CONFIDENT prior to its disclosure or became or will become publicly known through no fault of the CONFIDENT during the term of this AGREEMENT;
The INSURED has obtained or independently developed, as evidenced by written records or otherwise, and that no obligations set forth in this AGREEMENT have been defeated;
obtained by the CONFIDENT from a third party authorized to make full disclosure of such information; or
have been expressly released by written statement of the PARTY disclosing the CONFIDENTIAL INFORMATION to the PARTIAL.
12.3 Each PARTY shall be entitled to disclose CONFIDENTIAL INFORMATION to the extent it is required to do so by law or governmental order, has notified the other PARTY in writing of the intended disclosure (to the extent permitted), and has taken such precautions as are required by law and are reasonable to minimize the extent of the disclosure.
12.4 Each PARTY shall disclose CONFIDENTIAL INFORMATION to its employees or consultants only to the extent required by the contractual purpose of this AGREEMENT and to the extent the recipient is also bound by confidentiality.
13. general provisions
13.1 Entire Agreement.
The AGREEMENT is the entire agreement between the PARTIES with respect to its subject matter and supersedes all prior written and oral agreements with respect thereto. There are no other oral or written agreements, understandings or undertakings relating to the subject matter of the AGREEMENT. The Annex (GCU) is an integral part of this AGREEMENT.
13.2 No deviating terms and conditions of the USER.
The general terms and conditions of the USER shall not become an integral part of the AGREEMENT. This shall also apply if FIXFIRST unconditionally provides the SERVICES to the USER in the knowledge of the USER’s conflicting general terms and conditions.
13.3 Severability clause.
If any provision of this AGREEMENT is or becomes invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions. The PARTIES shall replace any invalid or unenforceable provision or loophole with a valid and enforceable provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision.
13.4 Amendments to the AGREEMENT
13.4.1 FIXFIRST reserves the right to amend or supplement the AGREEMENT at any time with effect for the future. Any change or amendment shall be notified to the USER in writing at least two (2) weeks before it takes effect by e-mail and/or display in the ACCOUNT or the SOFTWARE, as the case may be, and shall indicate the effective date of such change or amendment. The USER is obliged to keep himself informed about any notifications within the scope of the SERVICES on an ongoing basis.
13.4.2 The USER shall be entitled to object to any change or amendment to the AGREEMENT within two (2) weeks after receiving the notice of such change or amendment. If the objection is made in time, either PARTY shall be entitled to terminate the AGREEMENT for cause; such termination shall take effect on the effective date of the change or amendment that gave rise to the objection. If the USER does not object within the objection period, the change or amendment shall be deemed accepted by the USER and shall become part of the AGREEMENT.
13.4.3 In its notification, FIXFIRST shall inform the USER of the aforementioned right to object within two (2) weeks, the right of both PARTIES to terminate the AGREEMENT in the event of such an objection, and the legal consequences of failure to object.
13.4.4 Alternatively, the USER may be offered an amended AGREEMENT for acceptance or rejection in the course of his next registration via the SOFTWARE. If the USER rejects the amendment, FIXFIRST shall have the right to terminate the AGREEMENT by giving notice in accordance with clause 9.1.
13.5 Applicable law and jurisdiction.
This AGREEMENT and its interpretation shall be governed exclusively by the laws of the Federal Republic of Germany, excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The exclusive place of jurisdiction for all disputes arising out of or in connection with this AGREEMENT shall be, to the extent legally permissible, Frankfurt am Main, Germany, however, FIXFIRST shall also have the option to file suit at the registered office of the USER.
13.6 Provisions on electronic commerce.
Insofar as this AGREEMENT is concluded by means of telemedia, § 312i para. 1 sentence 1 nos. 1 to 3 and sentence 2 BGB are hereby waived.
Neither PARTY may assign the AGREEMENT or any rights or obligations hereunder to any third party without the prior written consent of the other PARTY. Notwithstanding the foregoing, (a) either PARTY may assign monetary claims to a third party without the consent of the other PARTY subject to the requirements of Section 354a of the Commercial Code; and (b) FIXFIRST may assign the entire AGREEMENT to a third party as part of a merger or sale of all or substantially all of its assets, or a sale or other transfer (e.g., as part of a reorganization) of substantially all of its business related to the SERVICE. In the case of subparagraph (b), the USER may terminate the AGREEMENT at the end of the next month within two (2) weeks after receiving notice of the transfer.
The set-off of the USER against FIXFIRST shall only be permissible with an undisputed or legally established counterclaim of the USER; the same shall apply accordingly to the exercise of any rights of the USER to refuse performance or rights of retention against FIXFIRST. The exercise of any right of retention of the USER additionally requires that his counterclaim is based on the same contractual relationship.
Annex: Order Processing Agreement (AVV)
This Order Processing Agreement (AVV) specifies the obligations of the PARTIES for the protection of personal data resulting from the order processing necessary as a consequence of the AGREEMENT within the meaning of Art. 28 of the General Data Protection Regulation (DS-GVO). It applies exclusively to services provided by FIXFIRST in relation to the AGREEMENT.
1 Scope, duration and specification of the commissioned processing.
1.1 The commissioned processing is specified as follows:
The GCU includes the processing of:
Basic data (such as names, contact details, etc.),
Contract data (such as scope of the order),
Appointment data (such as date, location, time),
call data (within the chat function of the SERVICES) and
insofar as these are processed within the functionalities of the SOFTWARE or SERVICES by FIXFIRST as a service for the USER.
Purpose of data collection, processing or use:
Provision of the SERVICES as described in the AGREEMENT, in particular processing of documents uploaded or created in the SOFTWARE (e.g. for quotation preparation, order documentation, billing support), as well as the order-related chat function between the different employees of the same craft business.
Group of data subjects to whom the processing of personal data relates:
The USER and its employees (including END USERS), as well as the end customers of the USER.
1.2 The term of this GCU shall be governed by the term of the AGREEMENT, unless the provisions of this GCU expressly impose obligations that go beyond it.
2 Scope of application and responsibility
2.1 FIXFIRST processes personal data on behalf of the USER. This includes the activities listed and specified in the AGREEMENT and in its scope of services. Each PARTY shall comply with all mandatory laws, legislation and regulations applicable to it in the performance of this AGREEMENT. The USER shall be the responsible party.
2.2 The instructions given by the USER to FIXFIRST in relation to the Processing shall be initially specified in the AGREEMENT. The USER shall be entitled to modify, supplement or replace individual instructions. Instructions that go beyond the scope of services specified in the AGREEMENT shall be treated by the PARTIES as a request for a change in services.
3 Duties and Responsibilities of FIXFIRST
3.1 FIXFIRST may collect, process and use Data of Data Subjects only within the scope of the Services and the instructions of the USER, unless it is required to do so by the law of the Union or the Member State to which FIXFIRST is subject; in such case, FIXFIRST shall notify the USER of such legal requirements prior to the Processing, unless the relevant law prohibits such notification due to an important public interest (Art. 28 para. 3 sentence 2 lit. a DS-GVO).
3.2 FIXFIRST will design the internal organization in its area of responsibility in such a way that it meets the requirements of the GDPR and the special requirements for the protection of personal data. It will implement and maintain technical and organizational measures for the adequate protection of the USER’s data.
3.3 FIXFIRST shall provide the USER, upon the USER’s request, with an overview of the persons authorized to access the data, unless the USER is able to obtain it himself.
3.4 FIXFIRST warrants that the employees involved in the processing of the USER’s data have undertaken to comply with the data protection principles and have been duly instructed with regard to the respective regulations. The data secrecy shall continue to exist even after the termination of the aforementioned activities.
3.5 FIXFIRST shall inform the USER immediately in the event of serious violations by FIXFIRST or the persons employed by it of regulations concerning the protection of the USER’s personal data. It shall carry out the necessary measures to secure the data and to mitigate possible adverse consequences for the data subjects and shall consult with the USER on this without delay. FIXFIRST shall support the USER in fulfilling his duties to inform the competent supervisory authority as well as the duties mentioned under Art. 32 to 36 DS-GVO.
3.6 FIXFIRST shall name the contact person to the USER for all data protection issues arising within the scope of the AGREEMENT.
3.7 FIXFIRST shall not use the provided data for any purpose other than the fulfillment of FIXFIRST’s obligations under the AGREEMENT.
3.8 FIXFIRST shall correct, delete or block the Data subject to the AGREEMENT if the USER so instructs. Unless otherwise agreed in the AGREEMENT, FIXFIRST shall, at the individual request of the USER, destroy the data carriers and other related materials in such a way that the data contained therein cannot be restored. Upon the USER’s instruction, FIXFIRST shall archive these data carriers and other related data and/or return them to the USER.
3.9 Data, data carriers as well as all other related materials shall be either surrendered or deleted by FIXFIRST upon the USER’s request after termination or termination of the AGREEMENT, unless there is an obligation to store the personal data under Union law or the law of the Member States.
4 Duties of the User
4.1 The USER shall immediately and fully inform FIXFIRST if it detects any errors in the order results of FIXFIRST or any irregularities with regard to the implementation of data protection regulations.
4.2 FIXFIRST and the USER are each obliged to keep a register of processing activities which fall within their responsibility in the sense of Art. 30 DS-GVO.
5 Requests from data subjects
5.1 If, on the basis of applicable data protection laws, the USER is obliged vis-à-vis a data subject to provide information on the collection, processing or use of data of this data subject, FIXFIRST shall support the USER in providing this information, if possible, by means of suitable technical and organizational measures. This presupposes that the USER has requested FIXFIRST to do so in writing or in text form and that the USER reimburses FIXFIRST for the reasonable costs and expenses incurred as a result of such assistance. FIXFIRST shall not answer any requests for information and shall refer the data subject to the USER in this respect.
5.2 If a Data Subject contacts FIXFIRST with requests to correct, delete or block data, FIXFIRST shall refer the Data Subject to the USER.
6. duties of verification
6.1 The USER shall be entitled to check the technical and organizational measures of FIXFIRST prior to the commencement of data processing and thereafter on a regular basis, not more than once every twelve months. For this purpose, the USER may either
obtain the necessary information from FIXFIRST, or
obtain from FIXFIRST a certificate or attestation attesting to the result of a corresponding examination of FIXFIRST’s technical and organizational measures carried out by FIXFIRST or by an independent expert appointed by FIXFIRST.
6.2 FIXFIRST undertakes to provide the USER with all the information necessary to prove compliance with the obligations set forth in Article 28 of the GDPR and this GCU and to enable and contribute to audits carried out by the USER or another auditor appointed by the USER.
6.3 FIXFIRST shall inform the USER without undue delay if it is of the opinion that an instruction of the USER violates applicable data protection law.
7.1 The USER authorizes a transfer of personal data by FIXFIRST to subcontractors for the provision of services to the USER. FIXFIRST shall maintain a list of the subcontractors currently engaged by FIXFIRST, which shall be made available to the USER by FIXFIRST upon the USER’s request prior to the conclusion of the contract and during the term of the contract. FIXFIRST shall notify the USER in text form of any intended change with regard to the involvement or replacement of subcontractors. The USER has the right to object to such a change. The USER must declare any objection immediately in text form, at the latest before the expiry of fourteen (14) days after receipt of the notice of the change. If the USER does not object or does not object in time, the amendment shall be deemed approved. If the USER objects, the USER and FIXFIRST shall negotiate in good faith in order to take appropriate measures to address the USER’s justified concerns about the intended change.
7.2 FIXFIRST shall carefully select subcontractors according to their suitability. If FIXFIRST awards services to subcontractors, it shall be incumbent upon FIXFIRST to transfer its obligations under this GCS to the subcontractors. Sentences 1 and 2 shall apply in particular to the confidentiality, data protection and data security requirements agreed between the PARTIES. By written request, the USER shall be entitled to obtain from FIXFIRST comprehensive information about the obligations of the subcontractors relevant to data security and data protection, if necessary also by inspecting the relevant contractual documents.
7.3 A subcontractor relationship subject to approval shall not exist if the USER commissions third parties with the provision of ancillary services; these ancillary services include in particular the provision of external contractors, postal, shipping and receiving services and maintenance. FIXFIRST shall conclude agreements with these third parties to the extent necessary to ensure adequate data protection.
8. information obligations, written form clause, choice of law
8.1 Should the USER’s data at FIXFIRST be subject to search and seizure, an attachment order, confiscation in the context of insolvency or bankruptcy proceedings or comparable events or measures of third parties, FIXFIRST shall immediately inform the USER thereof. FIXFIRST shall immediately inform all relevant parties in this context that the sovereignty, responsibility and ownership of the data lie exclusively with the USER as the responsible party.
8.2 Amendments to these GCU and/or its components – including any representations and warranties made by FIXFIRST – shall only be legally valid and binding if they are made in writing and then only if such amendment expressly states that it is an amendment to the provisions of these GCU. This shall also apply to the waiver or amendment of this written form requirement.
8.3 In the event of any contradictions, the provisions of these GCS shall take precedence over the provisions of the AGREEMENT. Should individual provisions of this GCU be invalid or unenforceable, this shall not affect the validity of the remainder of the Order Processing Agreement.