Conditions of the ProDigital Consulting GmbH
The following terms and conditions of ProDigital Consulting GmbH (hereinafter referred to as "ProDigital") shall apply to all services offered by ProDigital, in particular brokerage and consulting, unless other terms have been agreed in writing. If the customer (hereinafter referred to as "customer") has his own terms and conditions, these shall only apply if ProDigital expressly agrees to them. Otherwise the conditions of the customer are not included in a contract conclusion and are therefore invalid. The terms and conditions are valid for all offers of ProDigital, no matter if consulting or mediation, between ProDigital and customer. ProDigital does not accept deviating contractual conditions of the customer, even if ProDigital does not expressly contradict such purchase and contractual conditions.
2. offer / conclusion of contract
Contracts become legally binding through written confirmation by ProDigital. Any subsidiary agreements or other verbal agreements require written confirmation from ProDigital to be valid.
All indicated prices are in EURO (€) if not explicitly stated otherwise, plus value added tax in your legal amount on the day of invoicing. If stated, packaging, cable, other travel and transport costs will be added to the stated consulting prices. All prices are always valid for the individual order only, i.e. they are neither retroactive nor do they provide a reference point for future orders, unless a cooperation agreement has been concluded. With this, the fixed price is valid for the period stipulated in the contract. All shipments are for the account and risk of the client. After the conclusion of the contract ProDigital has the possibility to increase the prices as follows. The price can only be increased in connection with official orders or due to wage, material or other cost price increases of more than 5% in total, and if ProDigital does not provide its service until four months after the conclusion of the contract. If the price increase exceeds the cost of living between order and delivery, the customer has the right to withdraw from the contract. In the case of special order constellations, mediation costs may also be shown as consulting costs on an invoice or the consulting costs may also include mediation costs without prior agreement.
If ProDigital refers a customer to another (service) company (hereinafter referred to as "company"). Thus, by paying the resulting consulting invoice, the customer agrees to continue to handle the referral through ProDigital for future projects resulting from this project and not to contact the company directly. If the customer acts contrary to this point of the contract, he is liable to the amount of the loss of sales for ProDigital (plus any court and administrative costs). The company reserves the right, also in addition to the brokerage commission of ProDigital, to issue its own invoice to the customer and to assert its own contractual clauses upon conclusion of the contract vis-à-vis the customer. With the completed mediation of the two parties, ProDigital withdraws from the contractual relationship and is not liable for any resulting losses or loss of profit. The mediation is considered completed as soon as the customer and the company have concluded a direct contract with each other. If it becomes known that a customer and the mediated company have bypassed ProDigital, this will be legally pursued up to a limitation period of 10 years after the invoice date. This circumvention can be prosecuted with a refund payment in the amount of the administrative costs plus 5% above the base interest rate of the German Federal Bank and any accruing court and administrative costs
5. Transfer of risk
In the case of delivery, the risk is transferred to the customer, at the latest with the dispatch of the readiness for shipment or after the goods have been segregated, at the time the goods leave the warehouse. This also applies to partial deliveries by ProDigital where other services such as installation or transport are included in addition to shipment.
6. project completion deadline
If a project completion deadline has been agreed, this begins with the date of the order confirmation from ProDigital. However, this does not apply if the information required by the client has not been fully clarified. If compliance with a delivery or project completion deadline is prevented by circumstances for which ProDigital is not responsible, the deadline is automatically extended to a reasonable extent; this point also includes delayed order placement. If ProDigital has placed congruent orders with reliable suppliers but does not receive them, ProDigital shall not be held responsible for the delay. ProDigital will notify the customer of delays as it deems appropriate. If by an event on which ProDigital has no influence, a performance on the part of ProDigital becomes impossible, ProDigital is released from the corresponding obligation. In the event of force majeure on the part of ProDigital or its suppliers or the intermediary companies, no obligation shall arise until the cause of the disruption has been rectified. If the disturbance is not eliminated within a reasonable period of time, the contractual relationship and the associated obligations shall be cancelled by both parties. The parties cannot assert any claims against each other. In case of delay in delivery the customer only has the possibility to withdraw from the contract if he has set a reasonable extension of time of at least 3 weeks in writing after the beginning of the delay and announces his withdrawal within the legal period. If ProDigital acts negligently with regard to a possibility to fulfill the contract in time, ProDigital is liable for 50% of the foreseeable damage, up to a maximum of 50.000 EURO. The customer is obligated to formally accept the service of ProDigital immediately upon its request, as soon as the functionality has been proven to him. This acceptance is to be confirmed in writing.
A warranty claim arises only with products, which have a warranty from the manufacturer. All other contracts are service contracts and do not require the successful implementation of the project, unless otherwise agreed in the contract, these contracts are excluded from any warranty. To receive his warranty claim, the customer must make his complaints about incomplete performance or externally visible defects directly to the manufacturer. A warranty obligation also does not arise if damage to the delivery item occurs as a result of improper handling, excessive use, insufficient maintenance, faulty programs or the influence of third-party equipment of the customer. These regulations apply to all ProDigital employees.
8. total liability
ProDigital is only liable up to a maximum amount of 50.000€. Liability for personal injury, property damage or financial loss involving PCs, networks, controllers, drivers, software of any kind is excluded regardless of the legal nature of the claim. Should intentional negligence be proven, ProDigital's liability is also limited for its employees. Furthermore, ProDigital is not liable for the conduct, regardless of type and scope, of simple vicarious agents. If ProDigital mediates the customer to another company, the liability lies with these parties with the conclusion of the contract of the customer and the company, and ProDigital is not liable. ProDigital is only liable for costs incurred by a faulty mediation. In all other cases ProDigital is liable only insofar as they are actually insured against such a risk.
All invoices from ProDigital are to be paid immediately and without invoice deduction (discount) no later than two weeks from the invoice date. Offsetting with counterclaims other than those that are undisputed or legally established is not permitted. If the customer is an entrepreneur, he is not entitled to the benefit of the right of retention, unless this is based on legally binding claims. In the event of non-compliance with the payment deadline, ProDigital is entitled to charge interest on arrears in the amount of 5% above the base interest rate of the German Federal Bank; or from 01.01.2002 above the corresponding interest rate of the European Central Bank in relation to the final invoice amount. The customer is at liberty to prove to ProDigital that the damage incurred is less than the interest charged.
10. security and retention of title
Until full payment of the price for the services rendered by ProDigital, the goods/project remain the property of ProDigital. Only upon fulfillment of all claims that ProDigital has against the customer and that ProDigital is entitled to under the contract, ownership is transferred to the buyer. ProDigital has the option to insure the property against all insurable risks at the customer's expense until all outstanding invoice items have been settled, unless the customer can provide evidence of such insurance coverage. Delivery items may not be resold or processed after cessation of payment. If the customer is an entrepreneur, he shall assign to ProDigital all claims to which he is entitled, including ancillary rights. If the value of a security exceeds the claim by more than 20%, the customer may demand the release of a security of ProDigital's choice.
11. place of performance and jurisdiction
Unless otherwise agreed, the place of performance for all payment and other contractual obligations to merchants is the registered office of the GmbH. The place of performance for deliveries shall be the place of dispatch.
For all legal disputes with merchants, including bill of exchange and check proceedings, the exclusive place of jurisdiction is the registered office of ProDigital - Ulm. However, ProDigital reserves the right to sue the customer at his place of business. The law of the Federal Republic of Germany shall apply to the contractual relationships. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. These General Terms and Conditions shall remain binding in the remaining parts even if individual points are legally invalid.
12. copyright and right of use
The customer grants ProDigital the right to use the work results produced in the order as a reference and for self-promotion. The templates and design elements provided by the customer are used under the condition that the customer has the necessary rights.
ProDigital is entitled to name the customer as a reference customer after the end of the acceptance period, unless the customer forbids this in writing for an important reason.
14. intellectual property
All ideas, solutions, project paths etc. remain the intellectual property of ProDigital even after conclusion of the contract. The customer may freely dispose of the software and also change it. However, he is not allowed to enrich himself with the intellectual property of ProDigital and to redistribute it in any form, unless there is a written confirmation from ProDigital. If the customer disregards this, he is liable with his full earnings which he has received from the intellectual property of ProDigital and related products or services, plus any court and administrative costs and a claim for damages by ProDigital. In addition to this reimbursement payment, interest will be charged at a rate of 5% above the prime rate of the German Federal Bank. ProDigital provides its intellectual property to the customer free of charge as long as it is used for its intended purpose. ProDigital as the intellectual owner, however, is allowed to use the solutions for other customers. This is excluded if the use of the solution involves a direct profit reduction of the customer. The use of the intellectual property is valid until written adjustments are available.