Classmethod (Europe) GmbH Standard Terms and Conditions
Version 1.0 – April 2018
1. General Provisions
1. The following “Standard Terms and Conditions” regulate exclusively the contractual relationship between Classmethod (Europe) GmbH, Krausenstraße 9-10, 10117 Berlin, Germany (hereinafter referred to as “Classmethod Europe GmbH”, “We” or “Us” or “Our”) and you as Our customer (hereinafter referred to as “Customer” or “You” or “Your”).
2. Our Standard Terms and Conditions apply to all prior, current and future business relationships with You. By entering into any relationship with Us, You accept Our Standard Terms and Conditions without any changes and amendments. We hereby object to any of Your terms and conditions wherever contained in or in whatever way provided to Us, which conflict with Our Standard Terms and Conditions. Such conflicting terms and conditions will become only binding to Us if We have expressly approved their existence and validity in writing.
3. The invalidity of individual provisions of Our Standard Terms and Conditions or parts thereof shall not affect the validity of the remaining provisions of Our Standard Terms and Conditions and the parties to a contract undertake, within the bounds of what is appropriate in accordance with the principles of good faith, to replace an invalid provision with a valid one which reflects the commercial intentions of the parties, provided that this does not lead to a significant modification of the contractual content. The foregoing shall also apply to facts and circumstances which are not expressly regulated but where such regulation is required.
4. You will comply with all applicable laws, regulations and orders of any governmental authority in its performance of any agreement with Us and not engage in any illegal, false, deceptive acts or practices with respect to its business activities.
5. You will not assign any rights or transfer any obligations to third parties without prior written consent of Classmethod (Europe) GmbH.
6. Any contract with Us will be governed by, interpreted and construed in accordance with the material laws of the Federal Republic of Germany without reference to its conflict of law provisions. This choice of law is also to be understood as including non-contractual claims within Article 14 (1) (b) of Regulation (EC) No 864/2007. If mandatory foreign laws apply in individual cases, Our Standard Terms and Conditions are to be interpreted in such a way that the economic purpose pursued is as far as possible maintained. Where a German translation of an English word or phrase appears in the text of this Standard Terms and Conditions, the German translation will prevail.
7. Exclusive place of jurisdiction for Classmethod (Europe) GmbH and Customer in respect of all disputes arising out of or in connection with any contract is Berlin, Federal Republic of Germany. For reasons of clarity, this also applies to non-contractual claims under the Regulation (EC) No. 864/2007.
2. Reselling of AWS Services
1. Classmethod (Europe) GmbH is an authorized AWS Premier Consulting Partner to resell Authorized AWS Services amongst others in the European Economic Area.
2. You acknowledge hereby that any use of the AWS Services is subject to the AWS Customer License Terms, a separate agreement between You and Amazon Web Services, Inc. , P.O. Box 81226, Seattle, WA 98108-1226, USA (hereinafter referred to as “AWS Inc.”), a current version of which is located here: https://s3.amazonaws.com/Reseller-Program-Legal-Documents/AWS+Reseller+Customer+License+Terms.pdf . You furthermore acknowledge to promote the AWS Services in a manner that maintains the good name and reputation of AWS Inc. and the AWS Services. In case of any further selling of AWS Services, You will ensure that Your customers will comply with this Classmethod (Europe) GmbH Standard Terms and Conditions including but not limited to the acknowledgments in this Sec. II.2.
3. By clicking any web based acceptance button or ticking any checkbox referring to an acceptance of Our Standard Terms and Conditions, the AWS Customer License Terms or any other AWS terms and conditions, You unconditionally accept those terms and conditions.
4. Classmethod (Europe) GmbH does not make any representations, warranties or guarantees to Customer or any third party with respect to the specifications, features or capabilities of any Authorized AWS Services on behalf of AWS.
5. Regardless of any services carried out by Classmethod (Europe) GmbH as authorized AWS Premier Consulting Partner in respect of reselling the AWS Services, Classmethod (Europe) GmbH including but not limited to the provision of reseller accounts and handling of payment and usage charges, in no way, Classmethod (Europe) GmbH will be any party to any agreement between Customer and AWS Inc. and assumes no warranty, guarantee or liability in respect of any AWS Services. Please note that any terms and provisions You enter into directly with AWS Inc. may be governed by a different governing law and venue than the Standard Terms and Conditions of Classmethod (Europe) GmbH.
3. Classmethod (Europe) GmbH Services
1. Classmethod (Europe) GmbH provides its consulting services, including but not limited to advise to deployment for and use of AWS Services (hereinafter referred to as “Services”) in the agreed scope and time and in line with usual market standards within Our existing technical and operational capabilities. The responsibility for the project and its success remains at Customer who is supported by Classmethod (Europe) GmbH in the agreed scope and frame.
2. In the usual course of business, We provide You with a non-binding proposal or quote of Our Services. The scope of Services to be provided shall be determined exclusively by Our written order confirmation as well as any written attachments thereto. Unless a specific result is expressly agreed separately in a particular case in writing, Our performance shall in principle be a provision of Services under a service agreement (Dienstvertrag, §§ 611 et. seq. German Civil Code) and not under a contract or works (Werkvertrag, §§ 631 et. seq. German Civil Code). Unless expressly agreed otherwise, We shall not accept any responsibility for the achieving of particular results or for a specific type of success in relation to the provision of any performance. We are entitled to arrange for performance by way of subcontract (subcontractors, suppliers). The parties are free to agree otherwise in a separate contractual agreement.
3. Requests of the Customer to change the agreed scope of Services require a mutual written agreement. Customer will provide its change request in writing to Us. We will then examine the requested changes, its feasibility and costs and provide the Customer in case of a positive result of the change request examination with a proposal of Our changed Services. In case Customer does not accept the proposal, the prior scope of the Services continues to apply.
4. Classmethod (Europe) GmbH will designate an individual at Classmethod (Europe) GmbH as point of contact for Customer that will handle communications and scheduling, route technical inquiries and requirements to the appropriate teams.
5. The place of performance of any Services will be the premises of Classmethod (Europe) GmbH unless otherwise expressly agreed separately in a particular case in writing. Classmethod (Europe) GmbH may in its discretion involve third parties for the performance of Services, including but not limited to affiliates of Classmethod (Europe) GmbH in Japan, Canada and other countries pursuant to §§ 15 et seq. Aktiengesetz (German Stock Corporation Code, hereinafter referred to as “Affiliates”). In case on-site work at the Customer´s location is required, all travel costs and expenses will be charged to Customer.6. Any timelines, milestones and goals stated by Us are non-binding and only best effort commitments. Any timeline and deadline for the completion of performance shall only be binding if such a binding nature is expressly agreed in writing. In any case such expressly agreed deadlines shall be subject to mutual agreement of all matters related to the performance of an order as well as a requirement of prompt cooperation as well as technical support on the part of the Customer.
6. Customer will provide Classmethod (Europe) GmbH with all information and data necessary to carry out the agreed Services including but not limited to personal information and the correct system requirements and the scope of its system and data. In case Customer fails or is in delay to provide any information, any increased fees or timely delays is at Customers´s expense and Classmethod (Europe) GmbH is not liable for any costs and damages.
7. In the event of any unforeseen or unavoidable events in the provision of the performance as well as in the event of any hindrances, such as force majeure, labour disputes or any other disruptions in our own operations or in the operations of Our Affiliates or in the operations of Our suppliers or AWS Inc. or any Affiliates of AWS Inc. as well as in case of any delayed delivery or delayed performance by our subcontractors, We are entitled to extend any performance deadline by a period corresponding with such hindrance. The Customer shall be notified as soon as possible as to the commencement and end of such circumstances.
8. In case any agreed Services are not in line with usual market standards as proven by the Customer, Classmethod (Europe) GmbH has the right, in its discretion, to rectify or to re-perform the Services with at least two attempts. Any details contained on Our webpages, in Our catalogues, printed materials, type lists, and other advertising materials in respect to Our Services shall not constitute in any event be understood as binding statement constituting a warranty or guarantee. We also do not provide any service levels or other warranty commitments. The general limitation period for all claims of the Customer shall be 24 months from the time of the provision of performance.
9. Any work results arising out of Services shall become and remain the sole right property of Classmethod (Europe) GmbH and Customer shall be granted a non-exclusive, non-transferrable, non sub-licensable right to use the work result including any documentation exclusively in connection with the agreed Service worldwide without time restrictions. In case We provide Services to the Customer that are exclusively designed to the need of Customer and therefore Customer specific, We will transfer the sole right of property to the Customer or in case a transfer of property cannot be made under applicable law (such as under German copyright law), the Customer will receive an exclusive, transferrable, sub-licensable right to use the work result including any documentation exclusively in connection with the agreed Service worldwide without time restrictions.
10. Contractual term for any Services shall be the term provided for by Classmethod (Europe) GmbH in its offer and if nothing is explicitly provided for, the terms ends with the provision of all Services by Classmethod (Europe) GmbH. In case the contractual term expressly allows for an ordinary termination without cause, such ordinary termination shall be made in writing with a notice period of four weeks before the termination date. In case of ordinary termination, Customer shall compensate Classmethod (Europe) GmbH for all Services to be provided until the termination date regardless whether provided or not. In case Classmethod (Europe) GmbH and Customer have agreed on a fixed package price, the compensation shall be calculated pro rata and in case of time and material calculated on average working time.The right to extra-ordinary termination with cause for Customer and Classmethod (Europe) GmbH shall not be affected.
11. Classmethod (Europe) GmbH´s liability for Services, regardless of the legal basis, shall be subject to the following limitations and exclusions and such shall also apply to Our personnel, agents and contractors and other third parties with which We work in relation to in the performance of Our Services: We shall be only liable to pay compensation for damage caused by us only if We have acted willfully (vorsätzlich) or in a grossly negligent manner (grob fahrlässig). In relation to simple negligence (einfache Fahrlässigkeit), we shall be liable to pay compensation only in cases of injury to life, body or health or damage due to the breach of a material term (wesentliche Vertragspflicht), i.e. an obligation essential for the performance of the Services on which Customer has relied and objectively could rely on. However in case of a breach of a material term (wesentliche Vertragspflicht) Our liability shall be limited, however, to compensation for foreseeable, typical damage occurring and be limited to the amount of the price of the respective order for Services. These limitations of liability shall not apply insofar as We have fraudulently concealed any defect, in the event that an expressed guarantee has been provided in relation to the quality of Services, in relation to any claims by the Customer under the German Product Liability Act or if any personal injury or damage to health is caused.
4. Prices and Payment Terms
1. Classmethod (Europe) GmbH provides a fixed package price for its Services taking into account each case and the needs and requirements of Customer and. We have a right to a reasonable advance payment for any completed self-contained parts of the performance as well as upon completion of any project phase (e.g. commencement of the contract, the initial part performance). If invoicing is made on the basis of time and materials, travel time shall be invoiced as work time. Any travel costs and expenses will be invoiced separately.
2. An invoice for payment for AWS usage charges handled by Classmethod (Europe) GmbH and payment for Services will usually be provided at around the 10th calendar day of the month following the month wherein the AWS Services have been provided to Customer by AWS and/or Services by Classmethod (Europe) GmbH. Payment of the invoice shall be made without any deductions to one of Our bank accounts within 45 calendar days of date of invoice. An invoice shall be deemed to have been received within 3 calendar days after dispatch unless the Customer is able to prove otherwise. The Customer shall be deemed to be in default in relation to any payment as soon as the Customer is in delay in relation to any payment date unless payment has been delayed as result of circumstances for which the Customer is not responsible. The Customer shall not be entitled to exercise any right of set-off or retention in relation to any counter- claim except unless such a claim has been confirmed by way of a final binding court judgment of a competent court or unless such a claim is undisputed.
Classmethod (Europe) GmbH and the Customer agree to keep confidential all technical and commercial information received from each other, not to use such information for any other purpose than within the business relationship and not to disclose it to any third party. Disclosures to affiliated companies pursuant to §§ 15 et. seq. Aktiengesetz (German Stock Corporation Act) shall be permitted on a need to know basis. This shall apply also after the ending of a contract. This obligation shall not apply to information already known to the receiving party by legitimate means at the time of receipt without any duty of confidentiality, or to any information which the receiving party later becomes aware of by legitimate means without any duty of confidentiality or, to any information which – without a breach of contract by any of the parties – is or becomes generally known. The disclosing party shall retain its title of ownership and any rights to documentation and data carriers made available by that party. Any copying or passing on of such documentation or data carriers is permitted only with the prior written approval of the disclosing party.
6. Data Handling
Classmethod (Europe) GmbH will use Your business data that We have received from You only for the purpose of Our business relationship and will not use any data for other purpose including marketing and sales activities. Classmethod (Europe) GmbH may further process personal data of individuals in course of its business relationship with You. We will process personal data only for the purpose of Our business relationship and adequate, relevant and limit the use of data to what is necessary in relation to such purpose. We will keep any personal data accurate and where necessary up to date. Personal data will be kept in confidentiality and integrity. All data including personal data will not be stored longer than it is necessary to comply with contractual or statutory obligations. We will remove data from Our systems and records unless We need to keep information, including personal data, to comply with legal or regulatory obligations to which We are subject, e.g. statutory retention periods from 6 to 10 years, or if We need it to preserve evidence within the statutes of limitation. If necessary for the purpose of Our business relationship with You, including but not limited to services, We transfer personal data to one of Our affiliated companies inside and outside the EU/EEA where We have necessary safeguards in form of standard data protection clauses adopted by the European Commission in place. In case of a declared consent for any personal data processing activities, such consent can be withdrawn at any time with future effect. Such a withdrawal will not affect the lawfulness of the processing prior to the consent withdrawal. In case You or any individuals working for You want to exercise any legal rights including but not limited to request access to personal data, request rectification of personal data; request erasure of personal data, request restriction of processing of personal data; request data portability, and object to the processing of personal data please contact Us under the contact information provided for in the impressum under https://classmethod.de. Individuals also have the right to lodge a complaint with the competent data protection supervisory authority. You will inform Your employees about the data handling by Classmethod (Europe) GmbH contained in this clause.