Terms & Conditions

1. Scope of the T&C, Amendments to the T&C

(1) The following General Terms and Conditions apply to all contracts and services of CanMe (hereinafter “CanMe”) in the version valid at the time the respective contract is concluded. However, the agreements made in the respective contract and the service descriptions between CanMe and the customer generally take precedence over the General Terms and Conditions.

(2) Terms of the customer that deviate from or conflict with these T&C are not recognized by CanMe unless CanMe has expressly agreed to them. The performance of the services may not be deemed such consent.

(3) Should deviating or supplementary terms be agreed, they are only effective if there is express written consent on the part of CanMe.

2. Services and Obligations of CanMe

(1) Upon conclusion of a service contract, CanMe undertakes to provide the services specified in more detail in the individual contract. CanMe’s primary performance obligations are determined by the offer/individual contract, where applicable the incorporated specification sheet, and where applicable other concepts, sketches, and drafts incorporated into the contract.

(2) Special knowledge of CanMe regarding the customer’s industry is generally not expected of CanMe.

(3) The provision of services by equally qualified third parties commissioned by CanMe at its own professional discretion is permitted, provided that, from the customer’s point of view, there is no objectively important reason against the person/company of the subcontractor.

(4) CanMe is neither entitled nor obliged to examine the legal compliance of the customer’s use of its services, in particular with regard to data protection law, copyright and media law, competition law, or industrial property rights, and/or to advise the customer in this respect. This applies in particular to the marketing campaigns and advertisements designed for the customer, as well as the use of website, tracking, and analytics tools and cookies.

3. Changes to the Service After Conclusion of Contract by the Contractor

In order to improve the functionality of the services or to adapt the services to the state of the art, CanMe may adapt the services after the start of the contract without the customer’s consent. However, such a change may not result in the customer no longer having access to the originally agreed functionalities or originally agreed requirements being met only in a substantially restricted manner. Changes or restrictions are in any case material and therefore impermissible if they would have led to a poorer evaluation of the services in the award procedure.

4 Services and Obligations of the Customer

(1). Upon conclusion of a service contract, the customer undertakes to pay the agreed recurring costs on time in accordance with the payment terms agreed in the individual contract.

(2). The customer is obliged to protect the systems and software in its possession or the systems and software rented by CanMe that are used for the use of the services, as well as the data used for this purpose including program data, against unauthorized access, manipulation, damage, and loss. CanMe is not liable for damages arising in this context. If no agreements have been made regarding backup services, the customer is fully responsible for backing up its own data.

(3). The customer is obliged to take all necessary measures to prevent unauthorized interference with its own and third-party systems, against the spread of spam and viruses, and to comply with the applicable provisions of telecommunications, data protection, and copyright law. The customer undertakes not to use the services for committing or supporting criminal acts and will, within its area of responsibility, take the necessary measures to avoid criminal use by users belonging to the customer or by third parties.

(4). The customer shall inform CanMe without undue delay of defects, malfunctions, or interruptions of services, systems, or software.

5. Prohibited Uses

(1). Neither the customer nor the users who access CanMe’s services via the customer are entitled to use the services, a) in a manner that is prohibited to the customer by laws (e.g. criminal laws), statutory ordinances, or official orders known to the client, b) in order to infringe the rights of others.

(2). Insofar as the intended use of the service is not explicitly described, use of the service in high-risk areas is excluded (operation of nuclear power facilities, air traffic control systems, weapons of war, life-support equipment, or comparable risk-prone applications in which service disruptions typically lead directly to the death of persons or to major-loss situations).

(3). Violations of the prohibited uses pursuant to § 5 entitle CanMe to suspend the service, provided that it has set the customer a reasonable period to end the violations prior to suspending the service and this period has expired without success. If the customer ends the violation, the service must be resumed without undue delay. Insofar as the services affected by the suspension are suspended for more than 10 hours in the reference period, the customer also owes no remuneration for the suspended service.

6. Prices and Payment Terms

(1). Services are invoiced in advance according to the prices stated in the service offer, unless otherwise regulated in the respective individual contracts.

(2). The contractually agreed prices apply. Unless otherwise agreed, prices are understood as net in EUR. All charges are understood to include the applicable German statutory value-added tax. The payment term is 10 days after invoicing. Invoices that the customer does not dispute by their due date are deemed accepted.

(3). Services requested by the customer for which prices have not been specifically agreed are invoiced according to actual effort at CanMe’s standard rates valid at the time the contract is concluded.

(4). Travel, meal, and accommodation expenses are, unless otherwise agreed, borne by the customer and invoiced separately.

(5). If no payment or only an incomplete payment is made by the end of the payment term, the customer is automatically in default and owes the statutory default interest as well as cost-covering reminder fees and, where applicable, collection costs, including court and attorney fees.

(6). After expiry of the payment term, CanMe is entitled to discontinue the provision of its services and/or to terminate the contract extraordinarily without notice and without compensation.

7. Warranty

(1). The statutory provisions apply to material and legal defects, unless the following provisions provide otherwise.

(2). The services to be delivered, together with adaptation work, are free from material and legal defects if, at the time of the passing of risk, they conform to the requirements set down in writing by CanMe.

(3). If defects occur in the services delivered by CanMe or in the software or other adaptation work, the customer must report these in writing without undue delay, stating the information useful for identifying the defect (description of defect symptoms). If the customer does not report the defect to CanMe in writing without undue delay, all of the customer’s warranty claims lapse.

(4). CanMe is only obliged to remedy a defect if the customer describes the defect to CanMe sufficiently and specifically, errors identified by the customer are reported to CanMe in writing with an error message in the agreed form, the documents required for error remediation are made available to CanMe for inspection, the customer has not interfered with or modified the software or adaptation work in such a way that a defect has thereby arisen, and the software is operated under intended operating conditions in accordance with the documentation.

(5). If the documentation is defective, CanMe will provide the customer with defect-free replacement.

(6). If CanMe is unable to remedy the defect or to provide a defect-free new delivery, it will show the customer workarounds for the error. Insofar as these are possible and reasonable for the customer, they count as supplementary performance. As a result of the rectification or replacement delivery, data collections and data created so far must remain usable for the customer. If the rectification or new delivery carried out necessitates a change to the supplied documentation or other documents, these are also to be amended accordingly by CanMe.

(7). The customer has no warranty claims if (a) the defect is caused by ordinary and normal wear and tear, external influences, or operating errors; (b) the customer makes changes to CanMe’s deliveries or services or has them made by third parties.

(8). Insofar as damages can be claimed where the statutory requirements are met, this claim for damages is limited to 5 % of the value of the delivery or service affected by the defect, but in the case of several claims for damages due to defects, to a maximum of 5 % of the fixed price plus total remuneration to be paid under this contract. In no case does CanMe, in the event of defects, bear liability for damages beyond the limits set out in § 9 (2) to (6). Further claims in the event of defects are excluded. This limitation of liability does not apply in the case of fraudulent concealment of a defect or in the case of intent or gross negligence.

(9). If the defect is attributable to the defective delivery or service of a supplier of CanMe, CanMe’s liability in this respect is limited to the assignment of the defect claims that CanMe has against the supplier.

(10). If CanMe has rendered services after a defect was reported by the customer and CanMe is not responsible for this defect, the customer is obliged to reimburse CanMe for the costs incurred as a result. In calculating the costs, CanMe’s price list applicable at the time the services are rendered is used as a basis.

(11). CanMe may refuse rectification, replacement delivery, replacement performance, and the fulfilment of warranty claims until the customer has paid in full the contractually agreed fixed price / the contractually agreed remuneration plus total remuneration, less the part attributable to the defect-related delivery.

(12). Claims for defects — with the exception of claims for damages — become time-barred within a period of 12 months. The provisions in § 9 apply exclusively and conclusively to claims for damages.

8. Liability, Claims for Damages

(1). CanMe is liable for damages in accordance with the statutory provisions — irrespective of the legal grounds — in the case of intent and gross negligence, in the case of simple negligence for damages arising from injury to life, body, or health, in the case of assumption of a guarantee, in the case of fraudulent concealment of a defect, as well as in the case of customer claims under the Product Liability Act.

(2). Notwithstanding the provisions in the preceding § 9 (1), CanMe is liable in the case of simple negligence for other damages arising from the breach of a material contractual obligation; material contractual obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the partner regularly relies and may rely, and which protect contractually essential legal positions of the customer. In this case, liability is limited to compensation for the foreseeable, typically occurring damage.

(3). In the case of liability for slight negligence pursuant to § 9 (2), the obligation to compensate for property damage and resulting further financial losses is limited to the contractually typical and foreseeable damage, but to a maximum of 80% of the invoice value per case of damage and, for all cases of damage per calendar year, to a maximum of 100% of the annual total order value, even if it concerns a breach of contractually essential obligations.

(4). In the event of data loss or data destruction, CanMe is only liable insofar as the loss or destruction was caused intentionally, through gross negligence, or due to a breach of a material contractual obligation. CanMe’s liability is limited in amount to the damage that would have arisen for the restoration of the data even in the case of proper and regular backup of the data.

(5). CanMe is not liable for the data content and the data consistency of the customer’s data.

(6). The strict liability of CanMe pursuant to § 536a (1), 1st alt. BGB on account of defects that already exist at the time the contract is concluded is excluded, insofar as the defect does not relate to a characteristic warranted by CanMe.

(7). The customer’s claims for damages and claims for reimbursement of futile expenses become time-barred within one year. This does not apply to claims under § 9 (1).

(8). In all other respects, the liability of CanMe is excluded, to the extent legally permissible, in particular for consequential damages, such as liability for lost profit or for third-party claims — irrespective of the legal grounds. In particular, CanMe is not liable for damages caused by criminal activities of third parties such as phishing, DoS attacks, hacking, or malware.

(9). Insofar as the liability of CanMe is limited or excluded, this applies accordingly to legal representatives, employees, freelancers, and other vicarious agents of CanMe.

(10). With regard to any liability of the customer towards CanMe, the customer must accept attribution of fault on the part of end customers and affiliated companies.

9. Release from the Obligation to Perform, Force Majeure

(1). The contracting parties are not liable to each other for the breach of contractual obligations insofar as the breach is based on force majeure. “Force majeure” is understood to mean in particular wars, civil wars, disasters, acts of terrorism, epidemics, quarantine, and government measures; furthermore, other unforeseeable events that lie outside the control and responsibility of the affected party and that prevent the affected party from rendering the service despite the deployment of all economically reasonable measures to maintain its performance capability. In particular, a strike that does not take place within the customer’s collective bargaining area is not regarded as force majeure.

(2). The affected party will, without undue delay after the occurrence of the force majeure event, inform the other party in writing about the event, the time of occurrence, and the expected effects on its ability to fulfil its contractual obligations.

(3). As long as a force majeure event continues, the affected party is released from its obligation to render the service, provided that it has taken all reasonable measures to resume rendering the service and has continuously informed the other party about the circumstances underlying the continuation of the performance obstacle.

(4). If the resumption of the service involves unreasonable costs for the party obliged to render the service, the parties will, before resuming the service, reach an agreement on bearing these costs. If no agreement is reached up to three calendar days before the resumption of the service, CanMe has the right to determine the bearing of costs at its reasonable discretion, taking into account the customer’s interests.

(5). If the interruption caused by the force majeure event lasts longer than two weeks, CanMe has an extraordinary right to terminate the affected service slip or the entire contractual relationship.

10. Secrecy/Confidentiality, Data Protection

(1). The parties are obliged to treat confidentially, and not to make accessible to any third party, the confidential information made accessible to them by the respective other party on the basis of the contract concluded between them, as well as knowledge that they obtain on the occasion of the cooperation under the contract regarding confidential matters of the respective other party. Information of a technical, commercial, or organizational nature is deemed “confidential” if it is either expressly marked as confidential or its confidentiality results from the nature of the information or the circumstances of its disclosure. Confidential information includes in particular all internal business information of the parties and others involved in the performance of the contract, all data to which the parties gain access under the contract, as well as the content of the contract.

(2). This obligation includes in particular experiences, knowledge, and information of the parties concerning fundamentals, working methods, manufacturing, production processes, procedures, product range, new developments, customers, suppliers, contract conditions, as well as systems including electronic data processing, including all documents, drafts, drawings, recordings, sketches, plans, specifications, formulations, materials, samples, data, measurement results, calculations, prototypes, specimens, and articles.

(3). The parties guarantee that within the company, access to confidential information is granted only to those persons who are absolutely necessary for the preparation and performance of the activity/cooperation, and will likewise oblige their employees, as well as third parties to be engaged where necessary after consultation with the respective other party, to maintain secrecy to the extent regulated here.

(4). The parties undertake to protect confidential information with the greatest possible care against unauthorized knowledge by third parties as well as by persons within the company not directly affected by the activity. Under no circumstances will the parties pass on confidential information to third parties without the prior written consent of the respective other party.

(5). The parties further undertake to use or reproduce the confidential information that has come to their knowledge only within the scope of the activity for or at the respective other party. Any other use of confidential information, whether for one’s own purposes or those of third parties (in particular competitors), is excluded even after the end of the cooperation. The use of the confidential information covered by this paragraph is limited to use within the scope of the contract.

(6). CanMe is further authorized to use the names and marks of customers as well as the agreed services of CanMe for reference purposes. Further advertising and publications about project-specific services require the customer’s consent.

(7). If a confidentiality agreement (a so-called Non-Disclosure Agreement, NDA) has been concluded, then the provisions mentioned here apply only supplementarily and the NDA takes precedence.

(8). EXCEPTIONS: The confidentiality obligation does not apply to information that (a) the other party has demonstrably lawfully received or receives from third parties, (b) was demonstrably already generally known at the time the contract was concluded or subsequently became generally known without a breach of the obligations contained in this framework agreement, (c) has demonstrably been developed independently by the other party, or (d) must be disclosed due to mandatory legal or official regulations. Reliance on points (a)–(d) is only possible if the receiving party notifies the relevant circumstance within an exclusion period of 14 days from receipt. The receiving party bears the burden of proof for the exceptions named in this clause.

(9). CONTINUED VALIDITY: The confidentiality obligations under this § 11 remain in effect for both parties beyond the termination of the respective contract for a further three (3) years from the end of the contract.

11. Liability for Breaches of Confidentiality

For each case of an attributable breach of the provisions of these terms, the disclosing party may demand from the receiving party the payment of a reasonable contractual penalty, which the disclosing party may determine at its reasonable discretion and which, in the event of a dispute, is reviewed by the competent court. Claims for damages going beyond this remain unaffected. A contractual penalty that has been paid is to be offset against any claims for damages, whereby the contractual penalty represents the minimum damage.

12. Data Protection

(1). The parties process the data of the respective other party required for the conduct of business in compliance with data protection regulations.

(2). If personal data is collected, processed, or used on behalf of CanMe, CanMe will, at the customer’s request, conclude an agreement on commissioned processing that complies with the statutory provisions.

(3). CanMe ensures that all persons entrusted by it with the processing or fulfilment of the contract comply with the statutory provisions on data protection. The commitment to data secrecy required under data protection law is to be made at the latest before the activity is first taken up and to be evidenced to the customer on request.

(4). If the customer processes or discloses personal data within the meaning of the data protection act in the course of using CanMe’s services, the customer will obtain the necessary consent of the respective data subjects in advance.

13. Term and Termination

(1) If no end of the respective contract term is agreed in the respective individual contract, it may be terminated in whole or in part with a notice period of three (3) months to the end of a calendar month, but at the earliest to the end of an agreed minimum contract term. A contract for continuously rendered services (service contract) with CanMe lasts, unless otherwise agreed, at least 6 months. A different term and notice period may be agreed in the individual contract.

(2). In addition, the individual contract may be terminated in whole or in part by either contracting party, in the presence of good cause — without observing a notice period — within a reasonable time from knowledge of the reason for termination. Good cause exists if facts are given on the basis of which, taking into account all circumstances of the individual case and weighing the interests of the contracting parties, the continuation of the contract can no longer be reasonably expected of the terminating party. If the good cause consists of the breach of a contractual obligation, termination is only permissible after the unsuccessful expiry of a period set for remedy or after an unsuccessful warning, unless the setting of a period is dispensable pursuant to § 314 in conjunction with § 323 (2) BGB. In the event of termination for good cause, CanMe is entitled to remuneration for the services rendered under the contract up to the point at which the termination takes effect. However, the remuneration does not apply to those services for which the customer demonstrates that they are of no interest to it due to the termination.

(3). Upon termination of the contract, the customer’s right to access CanMe’s servers expires without undue delay after the expiry of the notice period.

(4). Every termination requires the written form to be effective. Customers may also terminate by email if it complies with the electronic form of § 126a BGB (so-called qualified electronic signature).

14. Third-Party Claims

(1). CanMe warrants that all contractual services are free from third-party property rights and that no other third-party rights exist in them that restrict or exclude the contractual use.

(2). If a third party asserts claims against the customer on account of the services delivered by CanMe arising from patents, copyrights, or other industrial property rights or other legal positions, CanMe will, at its own expense, assume the representation of the customer in every legal dispute conducted against it. This applies, however, only if the customer a) informs CanMe in writing without undue delay of all claim letters from third parties and details of any legal disputes, b) leaves all decisions to CanMe regarding the legal defense as well as the negotiation or conclusion of a settlement, c) any claims for legal defects are not time-barred, d) the legal defect is not based on an instruction of the customer, and e) the infringement was not caused by the customer having unilaterally modified the delivery item or used it in a manner not in accordance with the contract.

(3). If the use of the service leads to the infringement of industrial property rights or copyrights in Germany, CanMe will, at its own expense, in principle procure for the customer the right to continued use or modify the service in a manner reasonable for the customer in such a way that the infringement no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the customer is entitled to terminate the contract. Under the stated conditions, CanMe is likewise entitled to terminate the contract. The stated obligations on account of legal defects are subject to the reservation pursuant to § 15 (2) and §§ 8 and 9 and are conclusive for CanMe.

(4). Claims of the customer going beyond this on account of defective transfer of rights exist to the extent provided by law, with the restrictions provided for in these T&C, in particular in §§ 8 and 9.

15. Rights of Use

(1). Upon provision, CanMe grants the customer the non-exclusive right, limited in time to the contract term, ordinarily terminable in accordance with the contractual agreement and otherwise terminable or suspendable only extraordinarily, non-transferable, to use the service including any access software physically provided for using the service, taking into account any quantitative metrics provided for in the contract such as number of users, volume, etc. — that is, also to temporarily store and load the software provided, to display it, and to run it, insofar as this is necessary for the intended use of the service. This also applies insofar as reproductions become necessary for this purpose. The right of use exists worldwide except for those countries in which CanMe does not generally offer the respective service due to state legal acts (for example export restrictions) and access to the services is not possible as intended. Access is not possible as intended if, in the case of correct geolocation, access for all customers in the relevant country is blocked due to state legal acts. CanMe will, upon request, name to the client without undue delay the countries in which CanMe does not make the services available due to the aforementioned regulation.

(2). Insofar as individual services are agreed, CanMe grants the customer, in each case upon performance, the non-exclusive, locally unrestricted right — exercisable in any hardware and software environment, transferable, permanent, irrevocable, and non-terminable — at the respective services (e.g. configuration services) to use, amend, translate, edit, or otherwise reshape the individual services in the original or in an amended, translated, edited, or reshaped form, to store, reproduce, exhibit, distribute in physical or non-physical form on any known medium or in another way, to publish (with the exception of any source code provided), to have used by third parties as intended, to have operated for the client, to use not only for its own purposes but also for the provision of commercial and non-commercial services to customers pursuant to §§ 99 to 101 GWB as well as non-commercial services to other third parties.

(3). If and insofar as data, databases, or database works or other results (e.g. software, documents) arise through the customer’s use of the services, the customer is entitled to all rights under § 16 (2) in the works newly generated by it, with the proviso that it holds these rights exclusively and that the restrictions of the customer’s rights agreed there, in particular for publication and for use also for services to third parties, do not apply.

(4). Insofar as the works newly generated by the customer comprise services of CanMe as an integral component or the exercise of the rights in the works requires the use of services of CanMe, the respective rights pursuant to § 16 (1) or § 16 (2) remain in place with regard to the use of such CanMe services. The customer grants CanMe, in the works newly generated by the customer with which it uses the service or which it brings into the service, rights limited at most to the contract term to use these works exclusively for the fulfilment of the contract and to the extent necessary for this purpose.

(5). The customer grants CanMe and the third parties involved in rendering the services the rights necessary for rendering the services in the data and software contributed by the customer.

16. Set-off, Right of Retention, and Transfer of Rights and Obligations

(1). The customer is only entitled to set-off with undisputed or legally established claims.

(2). The customer is only entitled to exercise rights of retention with undisputed or legally established claims from the same legal relationship.

(3). The customer may transfer and assign rights and obligations under this contract to third parties only with the prior written consent of CanMe.

17. Amendments and Supplements, Miscellaneous

(1). Amendments and supplements to the contract require the written form to be effective. The requirement of written form can only be waived in writing. Compliance with the written form is a prerequisite for the effectiveness of the declaration. Transmission in text form, in particular by email, is sufficient to comply with the written form.

(2) CanMe is entitled to make changes to the service description or the general terms and conditions and other conditions. CanMe will carry out these changes only for valid reasons, in particular due to new technical developments, changes in case law, or other equivalent reasons. If the change significantly disturbs the contractual balance between the parties, the change is omitted. In all other respects, changes require the customer’s consent.

(3). Should one or more provisions of these general terms and conditions prove to be void or invalid, this does not affect the remaining provisions. These remain unchanged and retain their validity. The void provision(s) is (are) to be replaced by lawful provisions that are as equivalent as possible.

(4). The customer undertakes, during the term of the contract and for two years thereafter, neither to poach for itself nor for others the employed staff and auxiliary persons of CanMe who are or were involved in the conclusion or execution of the contract, nor to induce them in any other way to give up their employment relationship. In the event of a breach, a contractual penalty in the amount of a past annual salary of the affected employee becomes due.

(5). CanMe reserves the right to amend these general terms and conditions at any time. The new terms are notified to the customer in writing. If CanMe changes the T&C to the disadvantage of the customer and the customer does not agree with the changes, it may terminate in writing in accordance with the ordinary notice period; otherwise the new T&C come into force upon expiry of the notice period.

(6). The contract and these terms and conditions are subject to German law. In the event of disagreements, an amicable settlement is to be sought before calling upon the courts. The exclusive place of jurisdiction is Hof, Germany. CanMe is entitled to take action against the customer also at its place of residence or registered office.