GTC

General terms and conditions of
Color Alliance GmbH (limited liability company [LLC])

Hereafter referred to as “CA”
Effective: December 2016

 

  • 1 General – Scope of application
  1. The following General Terms and Conditions (GTC) apply to all deliveries of goods and services of whatever kind delivered by Color Alliance to the customer. Customers in terms of business relations are entrepreneurs (fully-qualified traders). Delivery of goods in terms of the following general terms and conditions also includes the delivery of software of any kind.
  2. Differing, conflicting or supplementary GTC of the customer shall not, even upon knowledge thereof, become part of the contract, unless their validity is expressly agreed in writing. They shall also not form part of the contract in case CA executes an unreserved delivery, despite being aware of the customer's conditions. This also applies to all future delivery of goods and services to the customer.
  3. Even if the customer did not receive the current GTC neither along with the respective offer from CA nor at another time before or at the signing of the respective contract, the GTC shall still be considered as valid in case the customer was or should have been aware of them due to a former or different business relation.
  4. CA is entitled to collect, save, process or utilize information and data of the customer and to forward this data to third parties in particular for the purpose of claims collection or the outsourced debtors management for storage, processing and utilization.

 

  • 2 Conclusion of contract
  1. Offers made by CA are nonobligatory – especially in terms of prices, quantity, delivery deadline, availability, and supplementary services. The right to make technical modifications is reserved within reasonable limits. An explicit assurance of characteristics is subject to a written confirmation by CA.
  2. The scope of services to be provided by CA is exclusively specified in the written contracts. The contractual obligations of CA are limited to the delivery of goods, unless CA explicitly committed to other services regarding contracts concerning the delivery of goods. In case of doubt CA shall not be considered obligated to additional services especially those concerning the setup, installation, consultation or other services relating to the putting into operation of delivered goods.
  3. By placing an order, the customer makes a binding declaration of his intent to purchase the ordered article. CA is entitled to accept the contractual offer which is part of the order within two weeks of its receipt by CA. Acceptance can be declared either in writing (also an invoice or delivery note) or by the delivery of goods to the customer.
  4. In case the customer orders electronically, CA will confirm the receipt of the order. The acknowledgement of receipt does not represent a binding acceptance of the order. The acknowledgement of receipt can be combined with the declaration of acceptance. In case the order was placed electronically, CA will store the contract and send it to the customer via e-mail and along with the current GTC upon request.
  5. A fixed delivery deadline does not exist. In case, notwithstanding the preceding statement, a fixed delivery deadline is agreed on, and the delivery is the delayed, the customer has to grant a reasonable grace period of normally four weeks. The conclusion of contract is subject to the correct and timely self-delivery of CA’s suppliers. This shall only apply in case the non-delivery is not represented by CA, especially in case of conclusion of a congruent covering transaction with the supplier of CA. Due to capacity shortages it can not be precluded that the products offered by CA or ordered at CA may not be available at the expected delivery time – resp. for a prolonged period. Therefore, offers and acknowledgement of receipt are subject to product availability. In the event of long-term non-availability, the customer shall be informed without delay. The consideration shall be reimbursed.
  6. Delivered software will be installed by CA on the hosted server of the Hoehne AG. The individual customization or parametrization of standard-software is the responsibility of the customer unless CA explicitly agreed to services concerning the installation, customization or parametrization. The same holds true for converting the software to another operating system, another hardware system or another programming language; in case of doubt, CA shall not be considered obligated to assist.
  7. The customer is offered a training course for the usage of the “CA Smart Shop Version xx” software. Starting the day after the training the customer is given a four-week grace period (change period) during which he has to inform CA regarding requested changes for the “CA Smart Shop Version xx” software. Regarding the deadline, please refer to §§187 et seqq. German Civil Code. Upon expiry of this change period the software is considered as accepted.

In case of doubt, CA is not obligated to advise, brief or train the customer regarding the use of the delivered software.

Upon delivery of the software and when in doubt, the service obligations of CA shall be limited to the installation on the hosted server of the Hoehne AG, the delivery of the user documentation corresponding to the program, and to the granting of a non-exclusive right of use in accordance with section 8 of this GTC. Object of agreement is the software per program documentation valid at the time of signing of contract. Ca may not be obligated to deliver updates (changes, add-ons, and improvements).

  • 3 Force Majeure

In the event of force majeure or other unusual circumstances which were not foreseeable by CA the delivery and service deadline shall be adjusted accordingly. In case the delivery and/or acceptance is/are delayed by more than eight weeks, both parties are entitled to withdrawal. In the event of partial or complete loss of the supply sources, CA is not obligate to obliged to obtain replacements from pre-suppliers.

  • 4 Shipment

CA reserves the right to choose the kind and method of shipment. Additional charges arising due to special shipment requests made by the customer shall be paid by the customer.

 

  • 5 Reservation of title
  1. Ownership of the goods delivered by CA is demised to the customer only after the purchase price has been paid in full. In case the customer maintains an ongoing business relation with CA, the full payment of the purchase price is replaced by the defrayal of all claims arising from the current business relation, including additional costs, claims to damages, and cashing checks. The reservation of title shall remain effective even if individual claims are added to the current bill and even if the balance has been settled and acknowledged. The customer has to report any ownership and address changes without delay.
  2. The customer is obligated to immediately notify CA of third parties having access to the goods, e.g. in case of attachment of property, as well as in case of damaging or destruction of the goods.
  3. In case of customer behavior contrary to contract especially in case of default or the infringement of a duty as outlined in section 2 of this provision, CA is entitled to withdraw the contract and to demand the return of goods. Though, enforcement of the reservation of title alone does not represent a declaration to withdraw the contact. A possible recovery of goods only occurs as a precaution; it does not represent – even if installment payments were subsequently granted – the withdrawal of contract.
  4. The customer is entitled to resell the goods as part of proper business routine. Already now he assumes all receivables from CA that occur during the resale to third parties and up to the amount invoiced. CA accepts this transfer of liability. After the transfer, the customer is entitled to collect claims. CA reserves the right to collect claims as well, as soon as the customer is not able to meet his payment obligations properly anymore and is in default.
  5. If CA deems the realization of its claims at risk, the entrepreneur has to notify his customers of the transfer of liability and grant CA access to all required information and documents which may be required for the immediate enforcement of its rights.
  6. In case the value of the collaterals CA is entitled to exceeds the secured claims against the customer by more than 20%, CA is required to release the collateral upon customer request. Selection of the collateral to be released shall be made by CA.
  • 6 Payments
  1. Unless agreed otherwise, all prices for goods and services offered by CA are net prices ex stock, plus sales tax. Shipping costs are charged in accordance with actual expenditure. The customer may settle the purchase price by means of cash on delivery (COD) or against an invoice.
  2. Payment must be made net and immediately within the in the contract individually agreed dates of payment. The customer is considered as “in default” if payment is not received by the agreed dates of payment.
  3. In the event of default, the customer shall pay a money debt of 8% more than the basic interest rate for the duration of default. CA reserves the right to demonstrate proof of higher damages of default and to claim it.
  4. Checks are only accepted as a conditional form of payment and are subject to return at any time and to the exclusion of any liability in respect of proper presentation or protesting. Checks are only considered as payment when they have been implicitly credited by the bank of CA. Changes are not accepted.
  5. The customer may only charge up against undoubted or valid claims resp. charge them up against claims of CA. The right of reservation of title may only be executed by the customer in case his counterclaim is undisputed or validly determined by a court order.
  • 7 Passing of risks
  1. All agreements made between CA and the customer regarding the quality of the goods to be delivered by CA as well as all other statements made my CA relating to the quality of such goods shall not be considered as a guarantee as defined in § 433 of the German Civil Code, unless CA provided the customer with a separate written statement declaring that it will explicitly provide such kind of guarantee. The same holds true for the assumption of any procurement risk by CA.
  2. All deliveries are made at the expense and risk of the customer.
  3. The handing over of goods is not influenced by any delay in the customer’s reception.
  • 8 Terms of license

Provided that the computer programs (software) mentioned in the acknowledgement of order is considered software, which is produced by CA directly, the following terms of license of CA apply.

Ca grants the customer the simple, and non-excluding and timely limited right to use the software mentioned in the acknowledgement of order in the object code according to the following conditions. Grating of rights beyond the following conditions is not connected to the transfer of the software. CA in particular reserves all distribution, exhibition, demonstration, performance and publication rights of the software.

Unless otherwise agreed on in writing, the customer is entitled to the software usage for only one hardware component. CA installs the software on the hosted server of the Hoehne AG and grants the customer access. CA provides the customer with the required access key.

The re-translation of the program code into other code forms (de-compilation) as well as other forms of re-indexing of the different manufacturing levels of the software (reverse-engineering) are only allowed according to §69e copyright law.

The customer is not allowed to rent out the software or the user handbook for commercial usage. Additionally, the customer is only allowed to pass on the software and the user handbook in case the third party has agreed to the continuing existence of the license conditions according to section 8 in writing. When passing on, the customers loses his right of the program usage. The customer is obligated to send the name and complete address of the third party to CA.

The customer is not entitled to remove or change copyright notices, serial numbers or any other features of the software used for identification purposes.

  • 9 Third-party manufacturers’ terms of license

Provided that the software mentioned in the acknowledgement of order is considered software, which is not produced by CA directly, the terms of license of CA as outlined in section 8 still do apply and additionally the terms of license of the corresponding manufacturer do also apply, as long as no different agreements were made in the acknowledgement of order.

  • 10 Object of contract for maintenance contract / support contract
  1. CA assumes the maintenance of the programs outlined in the acknowledgement of order / invoice. The definition is part of this contract. Add-ons to the programs need to be added to the contractual agreements as separate appendices. Attention! Without support/maintenance contract the delivered software may stop working within a really short time. This results from the changes of suppliers and third-party suppliers for CA (e.g. browser and operating system) make.
  2. The maintenance includes
  3. a) the removal of errors in the program.
  4. b) the deployment of updates for upgrading the standard software of the ca¦smartSHOP’s (Shop component of the ca¦smartEDITOR’s (HTML5 Editor) and within the Joomla Version (CMS system).
  5. c) the exchange of enhanced standard software along with the documentation (upgrading, updating). Upgrades especially for the CMS-system Joomla for improvements and additional features is excluded. Additionally, the maintenance of the server on which the standard software is installed is excluded.
  6. The maintenance also covers the documentation pertaining to the programs as well as the files and database material which is currently covered by the performance range of the standard software.
  7. The removal of failures and damages which were caused due to inappropriate handling by the customer, influence of third parties (also so called hacker attacks) or caused due to force majeure are not part of the contract but can be agreed on on an individual basis and for additional payment. The same applies to damages or interference caused by environmental conditions at the set-up location, caused by failures or nonperformance of power supplies, defective hardware or other impacts not to be represented by CA
  8. Scope of services
  9. a) CA is required to examine errors concerning the software reported by the customers and, if possible, to provide the customer with advice on how to remove the consequences of the errors. In case of severe software errors, CA is required to fix the error during one of the following new program versions. A requirement for the troubleshooting and for the corrective actions is the cooperation duty of the customer according to §3. CA will offer updates to fix severe software errors to the best of its ability. Though specific reaction or reset times are not guaranteed.
  10. b) CA is required to inform the customer resp. the customer’s employees about the kind and extend of the performed work once.
  11. c) Additional issues only need to be fixed if they can be fixed with reasonable work. This is not the case if a new programming of substantial parts of the program would be necessary.
  12. d) The maintenance work is done via remote servicing, after the software was installed and is working.
  13. e) The employees of CA are not employed by the customer. The customer only issues instructions concerning issues for and against CA to the responsible employee nominated by CA.
  14. f) During the maintenance of the standard software ceded by CA, CA regularly publishes new program versions (especially for the ca¦smartSHOP(shop component of ca¦smartEDITOR (HTML5 Editor) and within the currently installed Joomla Version (CMS System)) the customer is using. The upgrading itself is done by the customer and can, if necessary and if agreed against payment of a fee, be installed by CA. In this case, only this program version will be maintained. Likewise, CA will adjust the corresponding documentation. The customer recognizes that CA can only test updates for standard installations. Especially side effects caused by changes in the software add-ons or due to the manual change of configuration data besides the mechanism provided by the software can’t be tested.

The promise that a certain update will always leave the way the software functions in every situation unaffected is specifically not granted.

Claims of the customer relating to the legal warranty or guarantee are not affected.

  1. h) Additional services (e.g. charged upgrades, a.o. Joomla and software modules, which are not subject to the specific service extend of the standard software, as well as the plug ins of third parties, such as payment providers, hosting providers, and other related services) not covered by the contract can be performed by CA upon request of the customer and upon addition payments, in case sufficient maintenance workers are available when the service is requested. Payment is based on the valid hourly rate at CA at the time of service performance and the required time effort is also taken into consideration.
  2. i) Response time for the standard support is defined as 3 business days on average. Shortening the reaction time in case of additional payments is not possible.

 

  1. Duty to collaborate
  2. a) The customer will report occurring errors to CA immediately and support CA during the error investigation and error removal as much as possible. This especially means to provide CA upon request with a written deficiency report and to provide the company with other data and protocols which may be beneficial for the analysis of the error.
  3. b) The customer needs to grant the maintenance personal of CA access to the hosted server and to the software installed there. He also keeps technical installations required for the execution of maintenance up and running.
  4. c) The customer nominates an experienced employee who can provide CA during maintenance with the required information, can make decisions on his own or demand them.
  5. d) It is the customer’s responsibility to have the provider company perform proper data backup of the hosted server and to properly maintain and care for the software and hardware environment of the software.
  6. Support
  7. a) The person responsible for the system as nominated by the customer in this contract and his representative will receive support via e-mail from CA in case of software issues and during operation problems. The “hotline” is available from 09:00 to 17:00 on workdays (Mondays through Fridays) via the e-mail This email address is being protected from spambots. You need JavaScript enabled to view it. or the link http://www.ca-web-to-print.com/ticketsystem.
  8. b) The customer is then contacted by the expert personal of CA. Additional maintenance work requires additional agreements.
  9. Person responsible for the system
  10. a) The customer has to nominate a person, responsible for the system, and inform CA accordingly.
  11. b) The person responsible for the system and the representative are the contact persons for CA when it comes to all questions concerning the implementation of contract as well as for all technical contacts, support requests and solution offers resp. mail contacts. It is mandatory that the person responsible for the system undergoes training at CA.
  12. Reimbursement for maintenance
  13. a) Remuneration for services provided by the CA are due according the last valid agreement made according to the contract. It needs to be adjusted when the programs to be maintained are extended or changed.
  14. b) Reimbursements for maintenance need to be paid either monthly or in advance at the beginning of each calendar year. In case of monthly payments, the customer needs to agree to a direct-debit authorization.
  15. c) The flat price according to §3 section 1 does not include maintenance work which arose due to wrong handling or negligent resp. deliberate damaging or changing of the programs. This kind of work will be charged according to the generally valid hourly wage of CA at the time of requesting the service and according to the time needed.
  16. d) The corresponding and valid sales tax is also added to the charged fees.
  17. Data protection
  18. a) Both parties are required to maintain silence on all business and company intern issues they are aware of and to treat all information relating to the implementation of this contract even after it has expired as confidential. The same holds true for data related to persons which is covered by the regulations of the data privacy act.
  19. b) CA is required to neither record, nor store or duplicate or to use or utilize the information, documents or data according to §7 sec. 1 in any way.
  20. c) CA is obligated to inform the personal accordingly and to convent the employees regarding the complying with the agreement according to §7 sec. 1.
  21. Easements
  22. a) The customer is granted a timely not limited and nonexclusive right of use for the contractual items. This right is offered by CA as part of the maintenance obligations of this contract (e.g. updates, additional program manuals)
  23. b) If the customers uses the contractual items, which are supposed to replace older ones, the easements concerning the replaced contractual items are no longer valid.
  24. Contractual period
  25. a) The contract becomes effective as soon as both parties sign it.
  26. b) The contract is concluded for the duration of the ultimate contractual period and will be renewed for an additional year unless it is canceled within 3 months to the end of the contractual period by one party in written form.
  27. c) The contract can be terminated with immediate effect by each party in case one or more engagement was broken by the other party and if the other party was encouraged to behave differently in writing and did not do so within 14 days culpably. Termination without notice is also possible without the prior request to behave differently in case a continuation of the contract can not be expected from the party terminating after taking all individual aspects into consideration and after considering the interests of both party.
  28. d) Every termination needs to be submitted in written form to become effective.
  29. Miscellaneous
  30. a) Should any clause of this contract be or become ineffective or should a specific issue not be addressed, then the validity of the other clauses shall remain unaffected. Both parties agree, that the invalid clause shall be replaced with an alternative solution, which is as close to fulfilling of the desired success as possible and a solution which both parties would have agreed on if they had known that the original clause was invalid.
  31. b) Changes and appendixes related to this contract are only valid in written form and when referring to the contract. Additionally they need to be signed by both parties.
  32. c) Place of performance and place of jurisdiction concerning all issues of this contract is the place of business of CA as long as the customer is a merchant or juristic person governed by public law.
  • 11 Copyright related utilisation rights

 

Provided that the customer received copyright related utilization rights upon delivery of the software in accordance with aforementioned sections 8 and 9 against a onetime payment, the granting of rights shall not take effect, until the customer has paid the full amount due (§ 158 sec. 1 German Civil Code). In case the customer is involved in an ongoing business relation with CA, the full payment of the fee due shall be replaced by the settlement of all due receivables arising from the current business relation. Until the payment is received in full resp. – in case of an ongoing business relation – until the settlement of all due receivables of CA arising from the ongoing business relation, the customer shall not be entitled to transfer the utilization rights of the delivered software to third parties.

  • 12 Warranty
  1. The quality of the goods to be delivered by CA is exclusively derived from either the corresponding agreements between CA and the customer or from the conditions stated in § 434 sect. 1 sen. 2 German Civil Code, excluding conditions defined in § 434 sec. 1 sen. 3 German Civil Code. Trade samples of the goods to be delivered by CA are only used to represent an approximate description of the goods.
  2. CA shall initially correct the defects of delivered goods by repairing or replacing the defective goods at its own discretion.
  3. In case the supplementary performance fails, the customer may demand, at his own discretion, a remuneration decrease (reduction) or rescission (avoidance of contract). If the breach of contract is only considered of minor nature – especially when it comes to minor defects – the customer is not entitled to rescission.
  4. The customer must immediately inform CA in writing about obvious defects, stating the invoice number and product name along with a description of the deficit, but latest within a week upon receiving the goods; otherwise assertion of claims concerning the warranty are excluded. The notice period is sufficiently observed in case of punctual sending of the notice. The full onus lies with the customer concerning all conditions of entitlement, especially concerning the defect itself, for the time the defect was discovered, and for the timeliness of the complaint.
  5. In case the customer decided to terminate the contract after failed supplementary performance because of a legal or material defect, he is not additionally entitled to compensation claim based on the defect.
  6. the warranty period is defined as six months from the moment the goods were delivered.
  7. In general the quality of goods is defined as the product description published by CA. Public statements, blurb or commercials of the manufacturer do not represent additional information concerning the quality of goods.
  8. CA does not present the customer with guarantees in the legal sense. This does not affect manufacturer guarantees. CA emphasizes the fact that software programs cannot be produced without any faults or errors at all.

CA is only obligated to comply with guarantees when delivering software, if the software does not meet the contractual agreed on characteristics or shows faults which prevent the proper software from proper use according to use outlined in the contract or if the software does not exhibit the regular quality the customer can expect from this type of software (§ 434 sec. 1 GCC)

CA does not issue any warrant according § 443 GCC.

  • 13 Limitation of liability
  1. In case of slight breach of duty, the liability of CA is limited to the predictable, typically for the contract, and immediate average damages which are typical for the kind of goods involved. That also applies to a slight breach of duty involving the legal representatives or vicarious agents of CA. Damage claims made by the customer – even those of a non-contractual nature – in case of a slight breach of duty caused by a legal representatives or vicarious agents of CA shall be excluded, unless the violation refers to a duty which is of mandatory meaning for meeting the purpose of the contract.
  2. The aforementioned limitations of liability do not refer to damage claims made by the customer concerning product liability. Additionally, limitations of liability do not apply in case of non-attributable bodily injuries or injuries to heath or in case of loss of life of the customer.
  3. Damage claims made by the customers resulting from a defect shall become time-barred one year after the delivery of the goods. This does not apply if CA can be accused of fraud.
  • 14 Final clauses
  1. The place of jurisdiction for all disputes is the business location of CA. Even if at the time actions are filed by CA the customer does not have a general place of jurisdiction in the Federal Republic of Germany or if the seat, domicile or fixed residence is unknown, the place of jurisdiction will still be the business location of CA. The place of fulfillment 32758 Detmold.
  2. The contractual relationship between the parties shall be governed solely by German law, the UN Convention on Contracts for the International Sale of Goods (UNCITRAL, CISG) of 11. April 1980 shall be excluded.
  3. The regulations of the UN Convention on the Assignment of Receivables in International Trade shall apply from their entry into force.
  4. Should any clause of this contract be or become ineffective or should a specific issue not be addressed, then the validity of the other clauses shall remain unaffected. Both parties agree, that the invalid clause shall be replaced with an alternative solution, which is as close to fulfilling of the desired success as possible.
  5. The same applies to closing a gap in the contract with the customer or in these general terms and conditions.

Additional General Terms of Service concerning SaaS (Software as a Service)

Effective: December 2016

The following terms of service govern the provision of the Web-to-Print Software “ca ¦ smartSHOPxx” (hereafter referred to as “Software”) created by CA GmbH. 'ca ¦ smartSHOP' offers the customer technical options and entitlements to access software applications that are hosted on a central server via telecommunications links (e.g. the internet) and to make use of the functionality of the software applications as provided under this contract.

  • 1 Scope of services
  1. CA makes the „“CA Smart Shop Version xx” software for usage via the internet as a service solution (SaaS) available.
  2. The customer's connection to the internet, maintenance of the network connection, as well as the procurement and deployment of the hardware and software required by the customer are not part of this contract.
  3. The functionality of the software, as well as the conditions necessary for using the hardware and software on the side of the customer can be derived from the (downloadable) documentation provided to the customer when the offer was prepared. CA reserves the right to modify the functionality insofar as this does not significantly reduce the value of the software.
  4. The customer is given the technical capability and entitlement to access the contractual software via the internet and use its functionality as provided under the contract.
  5. The software provided for by the contract is available around the clock seven days a week ('uptime'). An average availability during the uptime can’t be guaranteed, as CA is not available for the server performance. The general terms of service of the hosting company (Hoehe AG) apply. There is no guarantee for a 100% usage. In case maintenance work becomes necessary during the uptime and the application is not available for that reason, then CA will inform the customer of this if possible.
  6. CA shall provide the customer with storage capacity and it is responsible for the backup of the transmitted data. CA will use virus scanners and firewalls to disrupt or prevent unauthorized access to the customer's data and the transmission of harmful data, especially viruses, as far as this is reasonably possible in terms of financial and technical effort. The customer is aware though that complete protection against harmful data is not possible. If the elimination of a risk by other means is not reasonably possible or promising in terms of financial and technical effort, CA is entitled to erase any data of the customer that has harmful content. In this case CA will notify the customer. The customer himself is responsible for complying with retention periods as outlined in commercial and tax legislation.
  7. If the customer transmits data – regardless of form – to CA, the customer shall also create backups of such data on his own data media. CA will back up its server regularly and protect it against manipulation by unauthorized parties as far as this is reasonably possible in terms of financial and technical effort. However, in case data is lost, the customer will transfer the affected data free of charge to the CA server again. The customer himself is responsible for complying with retention periods as outlined in commercial and tax legislation.
  8. CA is responsible for the maintenance of the contractual software, especially when it comes to the diagnosis and removal of defects within reasonable time. Defects are defined as significant deviations from the contractually agreed specifications. Additional maintenance services may be agreed on top of that and may be performed by CA upon additional payment.
  9. In so far as not explicitly stated above, CA is not responsible for any other services. In particular, CA is not required to render services relating to installation, set-up, consulting, customization, and training or to create or provide individual programming resp. additional programs.
  10. In case a recovery of the customer's data resp. a reorganization of the customer's server is necessary and if the customer is liable for such services, he also shall reimburse CA with the arisen costs. The customer is required to proof CA that he is not responsible. The same holds true for so called “hacker attacks” which may lead to a reorganization of the servers.
  • 3 Conclusion of agreement
  1. The contract with CA is concluded by acceptance of your order and when you receive our acknowledgement of order.
  2. All offers sent by CA are non-binding unless the offer explicitly states differently. CA reserves the right to make slight technical deviations even after the offer was accepted by the customer.
  • 4 Duration of contract, payments
  1. The contract is concluded for the duration of the ultimate contractual period and can be canceled in written form within the termination period outlined in the contract.
  2. In case the contract is concluded for a limited period of time, it will be renewed for the corresponding time period unless it is canceled within 1 month to the end of the contractual period by one party in written form.
  3. Invoices are issued on a monthly base and in advance. Debit authorizations are binding.
  4. Monthly prices can be found in the current price list unless other special agreements have been made. All prices are considered as net prices plus the currently valid sales tax.
  5. CA may adjust the prices and terms of payment with a three months’ notice if the scope of services offered is extended. Such adjustments shall be considered as accepted if CA does not receive a written objection within that period.
  6. In case of default payment, CA is entitled to block access to the software. The monthly obligation to pay will continue and is not be affected by that incident.
  • 5 Customer’s rights and obligations
  1. The customer will comply with all duties and obligations that are required for execution of the contract. He especially will maintain silence when it comes to the usage and access rights assigned to him or other users, he will protect it against access by third parties, and not pass usage on to unauthorized users. These data shall be protected by appropriate and usual measures. The customer will inform CA without delay in case he assumes that the access data and/or passwords may have been forwarded to unauthorized parties.
  2. Additionally, he will not retrieve or have someone else retrieve any information or data without authorization, manipulate or have someone else manipulate programs operated by CA or intrude in or support intrusion into the CA data networks.
  3. The customer will also indemnify CA against claims of third parties that are based on its wrongful use of the offered software pursuant as outlined in section 2 of this contract or that arise from litigation in connection with data protection, copyright or other disputes caused by the customer, which are connected to the use of the software.
  4. The customer will obtain the consent of any affected party required as outlined in section 8 if he plans to collect, process or use personal data and in case there is no legal requirement for the aforementioned.
  5. The customer will immediately notify CA of deficiencies relating to the contractual services especially when it comes to deficiencies in performance. If the customer fails to give timely notification for reasons for which he can be held responsible, then this represents a contributory cause or contributory negligence. Insofar as CA is not able to provide a remedy following the failure to notify or the delay in notification, the customer shall not be entitled to reduce the contractual payment in whole or in part, shall not be entitled to demand compensation for the occurred damage because of the defect or shall not be entitled to cancel the contract without notice because of the deficiency. The customer is additionally obliged to pay the agreed remuneration timely. The customer is also required to ensure that the API keys used by him are also used legitimately in respect to the use of the CA software. The customer shall indemnify CA against possible claims of third parties in this matter.
  6. The CA software may exclusively be used via the web interface provided by CA. Any other use, especially automated queries, is not authorized and shall result in the access being blocked.
  • 6 Easements
  1. The customer receives the non-exclusive easement to use the the software functions via the internet. The easement is limited by the usage period resp. the duration of contract. The customer shall not receive any additional rights. The contractual software is not assigned to the customer. In case CA publishes new versions, updates or upgrades for the contractual software during the usage term, the same rights as for the previous versions shall apply. CA though is not obliged to provide new versions, upgrades or updates unless they would be absolutely necessary to fix a defect or unless it is agreed on somewhere else in the contract.
  2. Aside from the usage outlined in this contract, the customer is not entitled to use, reproduce, download or make the contractual software or other data, which are not his own, available to third parties outside the agreed group of users.
  3. The customer is required to pay compensation in every individual case in which he can be held responsible for damages caused by him allowing third parties to use the contractual software. The compensation shall be in the amount of the remuneration that would, in the event of the conclusion of a proper contract for a regular term of two years, accumulate for each individual user. The customer reserves the right to provide proof that no or significantly less damage has occurred. Any other rights of CA shall remain unaffected by the aforementioned clause.
  4. The provision of the software is non-binding and can be stopped any time.
  5. CA is entitled to transfer all or some of the rights and obligations corresponding to this contract to affiliated companies or third parties. In such cases, this agreement shall continue to prevail and remain to be binding. In the event of a transfer to third parties, the customer will be notified within 14 days and may cancel the contract immediately.
  • 7 Liability
  1. In cases of intent or gross negligence, each party shall be liable to the other party for all losses caused by the first party, its legal representatives or vicarious agents fully.
  2. In cases of slight negligence, the parties shall be liable for loss of life or injury to body or health fully.
  3. In every other case a party shall be considered liable only if it infringes an essential contractual obligation (fundamental obligation). In such cases, liability shall be limited to compensation for predictable, typically occurring damage. Liability for single cases of damage is limited to the amount of remuneration per contract month.
  4. Additionally and as an advanced factor, CA’s liability due to slight neglect for damage compensation and reimbursements – regardless of legal grounds – shall be limited to 100% of the remuneration per contract month agreed on when the contract was entered. Liability in accordance with section 1 and 2 of paragraph 7 is not affected by this.
  5. CA’s liability regardless of culpability concerning compensation for damage (section 536a GCC) regarding defects existing upon entering the contract shall be excluded. §6 sec. 1. and 2. shall remain unaffected.
  6. A liability according to the product liability law remains also unaffected.
  • 8 Data protection

Regulations concerning the data protection are outlined in the appendix of this GTC.

  • 9 Final clauses

      1. subsidiary agreements to these terms of contract must be in written form to be legally binding.

  1. Should any clause of this contract be or become ineffective, both parties agree, that they will come up with an alternative solution, which is as close to fulfilling of the desired success as possible
  2. The parties agree on the exclusive application of the laws of the Federal Republic of Germany.
  3. The place of jurisdiction for any dispute in connection with this contract or any specific transaction concluded in the course of its execution is the business location of CA.

 

Appendix GTC “Data protection“

  1. The parties will observe the applicable provisions for data protection, especially those valid in Germany, and impose an obligation on their staff employed in connection with the contract and its execution to maintain confidentiality in accordance with Article 5 Federal Data Protection Act in so far as they have not already generally been placed under a corresponding obligation.
  2. Subject of the ordered data processing is the object of contract (software as a service, i.e. hosting, maintenance, operation, and provision of the online access of the CA “Smart Shop Version xx“ . software). The duration corresponds to the term of the contract.
  3. In case the customer collects, processes or uses personal data, he shall also be able to be held responsible for these actions and he shall also be responsible that he acts according to applicable provisions, especially data protection provisions, and shall, in the event of any breach, indemnify CA against any claims made by a third party. Collected data processing is evident in cases where the data that needs to be processed is personal data and in this case CA will act in accordance with the legal requirements for data contractual data processing and the instructions of the customer (e.g. to comply with erasing or blocking obligations). Such instructions must be voiced in writing and in a timely manner. In case CA believes that an instruction made by the customer is unlawful, the customer will be informed accordingly. The customer's right to voice instructions is only for the parameterization/ operation/ and use of „CA Smart Shop Version xx“. CA is entitled to further develop and adapt „CA Smart Shop Version xx“ as appropriate. In case of instructions which are due to SaaS not possible or only possible with extensive effort, CA is entitle to cancel the contract with a 2-week grace period at the end of the upcoming month.
  4. It shall be emphasized that the customer remains the owner of the data (§11 BDSG) according to the common contract relation as well as according to the data protective interpretation. The customer is the only person entitle to disposal and rights of ownership in respect of any customer-specific data (entered, processed, stored, and downloaded data). CA does not execute any controlling measurements whatsoever of data and content stored on behalf of the customer with regards to the legal admissibility of collection, processing and use; this is the customer’s sole responsibility.
  5. CA takes technical and organizational security precautions and measures referred to in the Appendix to § 9 BDSG. CA especially shall protect the services and systems lying within the area of its accessibility and also the application data and, where possible, other data stored by the customer or relating to the customer on the server against any non-authorized disclosure, storage, modification or other non-authorized instances of access or attack – whether by means of technical measures, by means of viruses or other harmful programs or data or by means of physical access – by staff members of CA or third parties, regardless by which means they were made. To do so, CA shall take the appropriate and standard measures necessary, especially, virus protection and protection against similar harmful programs, as well as other measures to secure its facilities, including protection against burglary by using current industry standards.
  6. The correction, deletion, and blocking of data happens within the general operation/use of „CA Smart Shop Version xx” and through the customer. In case the event of a duty or obligation violation or in case of customer’s default payment, CA is entitled to block or erase the data but only after prior written notice in a timely manner. Though the data will only be erased if the customer is able to recover the data or if CA has stored it at a trustee before deletion.
  7. The customer cannot demand access to the facilities where the servers for „CA Smart Shop Version xx“ are hosted. This does not apply to the access rights for the customer's data protection officer for verifying compliance with the requirements of the Appendix to § 9 BDSG and this does not apply to other handling of personal data by CA within the context of the operation of „CA-Web2Print“ according to contract.
  8. CA will only collect and use customer-related data to an extend necessary with the content of the contract. The customer agrees to the collection and use of the data to the extent necessary.
  1. The obligations according to sec. 1, 3, 4, 6, and 7 apply as long as the application’s data remains within CA's area of influence, even after the contract has ended. The obligation pursuant to section 7 also applies even after the contract has ended and for an indefinite period of time.
  2. In case the contract is terminated, CA is not entitled to use the data any longer. CA has to erase and delete all data within 30 days afterwards. The data can be passed on to the customer in a standard format on a data medium if the company is reimbursed accordingly.
  3. CA has the right to outsource services to a sub-contractor within Germany or abroad, but it must agree on obligations appropriate to the aforementioned clauses (sections 1 to 9) with the sub-contractor.
  4. If CA performs data processing in a non-EU member state or relocates it there, it will notify the customer of this circumstance in writing before doing so. If the customer agrees to the relocation, the 'Standard contractual clauses for the transfer of personal data from the Community to third countries' (Commission Decision of 5. February, 2010; 2010/87/EC) applies.
  5. CA is only obligated to inform and support the customer in case of the statutory obligation to register according to § 42a BDSG.

 

Legal mandatory details:

Color Alliance GmbH

Address: Am Gelskamp 14; 32758 Detmold; Germany

Executive directors: Rainer Esters, Thomas Schurzfeld

Amtsgericht Lemgo, HRB 8713

www.color-alliance.com