General terms and conditions (GTC) of Global Climate Changer GmbH (hereinafter referred to as “Global Changer”), Blumenstr. 43, 10243 Berlin, Germany
I. General provisions
(1) These General Terms and Conditions apply to the supply of goods and services (Consulting, Solutions) by Global Climate Changer GmbH (“Global Changer”) with a business address of Blumenstraße 43, 10243 Berlin, Germany, to entrepreneurs, legal entities under public law and special funds under public law, however not in relation to consumers. These General Terms and Conditions also apply to all future business transactions with the customer insofar as they are transactions of a similar nature.
(2) These General Terms and Conditions shall apply on an exclusive basis. Conflicting provisions or deviating terms and conditions of purchase of the customer will not be recognised, even if Global Changer provides a service with knowledge of any such deviating provisions, unless Global Changer has expressly agreed to the deviation concerned in writing.
(3) Even in the event that a contract is concluded online or by installing and/or using software provided by Global Changer (see Section 2(2) below), the customer agrees to these General Terms and Conditions and accepts them as binding without restriction; in cases where separate conditions for the use of the software and/or software service are included by Global Changer in the conclusion of the contract, such separate terms and conditions will have priority. Otherwise, the customer is not entitled to install or use the software.
(4) Individual agreements made with the customer in individual cases shall always take precedence over these General Terms and Conditions. With the exception of managing directors and authorised signatories, Global Changer employees are not entitled to make verbal agreements which deviate from these General Terms and Conditions or the contract.
2. Contract conclusion
(1) A contract is concluded upon countersignature of the signed Global Changer offer by the customer or any other mutual contractual agreement between the contracting parties.
In the event of an order by the customer which deviates from the offer, the order will only be binding if Global Changer has confirmed such order in writing or if Global Changer executes the order without reservation.
(2) Contracts for certain services can also be concluded online on Global Changer’s website after registration for Global Changer software. Orders that a customer only enters and saves in draft form are not binding on both parties unless and until a final order is placed. Drafts may be deleted by Global Changer without the consent of the ordering party if they have been stored in the system for more than 30 days without being placed to Global Changer.
(3) If a customer creates orders for end customers or other third parties, this does not result in a separate contractual relationship between Global Changer and the end customer concerned. Unless otherwise expressly agreed, Global Changer will perform its services exclusively on behalf of the contractual customer.
3. Performance and cooperation obligations
(1) The scope and nature of the services to be provided by Global Changer are based on the signed offer in conjunction with the scope of work attached to such offer. Changes can only be made by mutual agreement; the written form requirement according to Section 1(4) applies in such cases.
(2) Global Changer’s obligation to perform is subject to satisfaction of the customer’s obligations to cooperate. The customer warrants to Global Changer that data it supplies or enters is correct. Global Changer is not able to verify the accuracy of any data provided to it. Any liability on the part of Global Changer for results that arise from inaccurate data that has been provided or input is expressly excluded.
(3) Global Changer is entitled to subcontract with affiliated companies and subcontractors.
4. Performance deadlines, default in performance and liability for default
(1) Performance dates stated in the contract are only approximate, unless they are expressly indicated as fixed and binding in the contract. In all cases, Global Changer is in default only after a reminder from the customer, even if the time of performance is or can be determined according to the calendar.
(2) Adherence to fixed delivery dates presupposes the agreed or, depending on the type of service, generally required timely cooperation and delivery of documents and information by the customer. If the preceding requirements are not satisfied in time, the term of delivery will be extended accordingly. The customer shall bear any additional costs resulting from the fact that work must be repeated or is late owing to delay, incorrect or incomplete information, or deficient cooperation on the part of the customer.
(3) If failure to comply with applicable deadlines is caused by a force majeure event, the deadlines shall be extended accordingly. ‘Force majeure’ means the occurrence of an event or circumstance which prevents one party from performing one or more of its contractual obligations under the contract if and to the extent that the party affected by the impediment may show that such impediment is beyond its reasonable control, that it could not reasonably have been foreseen at the time the contract was concluded and that the effects of the impediment could not reasonably have been avoided or overcome by the party affected.
5. Remuneration, taxes and liability for late payment
(1) The respective remuneration for supplies of goods and services by Global Changer depends on the individual order. Unless otherwise agreed, all prices are ex works, Global Changer’s registered office. All prices are quoted in euros and are subject to applicable value added tax. Any withholding taxes, import duties, levies and customs duties that may be levied for services provided by Global Changer are to be borne by the customer. If the customer is legally obliged to deduct or withhold taxes from remuneration payable under these terms and conditions, such remuneration payable hereunder must be increased in such a way that, after all necessary deductions and/or withholdings have been made, Global Changer will receive an amount corresponding to the amount that Global Changer would have received without such deductions or withholdings.
(2) Expenses and travel costs are not included in the remuneration and will be invoiced separately.
(3) Unless otherwise agreed, technical support and advice will be invoiced separately.
(4) Invoices are to be paid by bank transfer to an account indicated in the invoice. Invoices from Global Changer are due for payment without deduction no later than 15 days after the invoice date. Global Changer is entitled to apply payments to the oldest outstanding amounts due from the customer to Global Changer.
(5) Default interest at the statutory rate shall be charged on outstanding amounts if the customer is in default of payment.
(6) If, despite reminders, the customer is in default with regard to significant payment amounts, or if circumstances arise which noticeably affect the creditworthiness of the customer, e.g. application for the opening of composition or insolvency proceedings, Global Changer is entitled to temporarily suspend any further services to which Global Changer has committed itself, to declare all outstanding amounts due immediately and to provide further services only in exchange for advance payment or the provision of security.
6. Intellectual property
(1) All intellectual property rights to Global Changer’s goods and services are retained by Global Changer. This applies, in particular, to software, know-how, written or electronic information material, marketing documents, logos, labels and media-related data products and all other values created by Global Changer.
(2) The customer’s rights of use shall be governed exclusively by the respective agreement between the parties and in accordance with these General Terms and Conditions.
(3) Copyright notices, serial numbers or other features intended to identify the software may not be removed or changed.
7. Software services and licences
(1) Unless otherwise agreed, Global Changer will provide software, or software services as applicable, in the then-current release version from Global Changer (hereinafter referred to collectively as: ‘software’) within the area over which Global Changer as control (from the interface between the data centre and the internet) for use by the customer via the internet (Software as a Service or Cloud Service Model as applicable). The scope of services, the quality, the intended purpose and the conditions of use of the contractual services are set out in the respective service description. The customer has familiarised itself with the essential functional features of the software and bears the risk of whether this corresponds to its wishes and needs; if it has any doubts, it should seek the advice of Global Changer or an informed third party prior to the conclusion of a contract.
Any additional supplies of goods and services, such as the development of customer-specific solutions or necessary modifications, require a separate contract. In particular, any integration of software into the systems and/or software environment of the customer, or direct integration into the customer’s website for use by end users, shall only be performed if separately agreed in the respective individual order.
Establishing a functioning hardware and software environment for the contractual products – including consideration of the additional load adequately dimensioned by the contractual products and, for example, an adequate internet connection – is the responsibility of the customer.
Global Changer does not guarantee uninterrupted availability of the software. In the event of interruptions to availability for reasons for which Global Changer is responsible, Global Changer will make every technically and economically reasonable effort to restore availability in a timely manner. The customer is not entitled to assert claims based on defects in the case of minor reductions in suitability of goods and services for their contractual purpose; deficient availability of the software of up to five full days per contract year are deemed to be a minor defect in suitability. Strict liability of Global Changer for defects that already existed at the time the agreement was concluded is excluded.
(2) In the case of a relevant individual order (Section 2), the customer may access the software via the internet during the term of the Agreement after activation or, if agreed, after full payment of all fees, and use the functionalities associated with the software in accordance with the Agreement by means of a browser or – if a service component – another suitable application (e.g. mobile ‘app’). The software may only be used by the customer, or the agreed maximum number of users, and only for the purposes agreed in the contract. The customer is not granted any further rights, in particular to the software or any infrastructure services provided in the respective data centre. Any further use requires the prior written consent from Global Changer.
(3) In particular, the customer may not use the software beyond the agreed scope of use or permit its use by third parties or make it accessible to third parties. In particular, the customer is not permitted to reproduce, sell or temporarily transfer, rent or lend software or parts thereof. The customer must take suitable precautions against unauthorised access by third parties. In particular, access codes must be kept secret. Furthermore, the customer must refrain from any actions which unreasonably burden the stability of the infrastructure used by Global Changer for the operation of the software, in particular the installation of automated call procedures and the execution of load tests, etc.
(4) Global Changer is entitled to take appropriate technical measures to protect against non-contractual use. Contractual use of the software may not be impaired to more than a minor extent as a result.
(5) In the event that a user exceeds the scope of use in breach of the contract, or in the event of unauthorised third-party use, the customer must immediately provide Global Changer, on request, all the information available to it to assert claims for use in
breach of the contract.
(6) Global Changer may revoke the access authorisation of the customer and/or terminate the contract if the customer significantly exceeds the use permitted to it or violates rules intended to protect against unauthorised use. In this context, Global Changer can interrupt or block access to the contractual services. Global Changer must generally grant the customer a reasonable grace period to remedy the respective situation. Revocation of access authorisation by itself shall not be deemed termination of the contract. Withdrawal of the access authorisation without notice can only be maintained by Global Changer for a reasonable period of not more than three months.
(7) Global Changer’s claim to payment for usage beyond the agreed term of use remains
(8) The customer has the right to regain access authorisation and access after it has proven that it has stopped use in violation of the agreement and prohibited future use in violation of the agreement.
(10) For sake of clarity, the parties note that the customer is no longer entitled to use or access the software at the end of the contract.
8. General liability for compensation
(1) Global Changer is not liable for damages or reimbursement of expenses, regardless of the legal basis, in particular due to defects, breach of duties arising from the contractual obligation and tort. This applies in particular, but without limitation, to claims for damages due to loss of turnover or profit and financing costs.
(2) This exclusion of liability provided in Section 8.1 does not apply in the case of a) intent or gross negligence, b) liability for guaranteed characteristics, c) liability based on the Product Liability Act and d) culpable injury to life, limb or health. In all other cases, Global Changer is liable on the basis of applicable laws, including in the case of the breach of essential contractual obligations, i.e. contractual obligations are those contractual obligations which must be fulfilled for the agreement to be properly performed and the observance of which the customer regularly relies upon and is entitled to rely upon.
(3) To the extent that Global Changer is not liable for intent or gross negligence, injury to life, limb or health, for guaranteed characteristics or under the Product Liability Act, Global Changer’s liability for breach of essential contractual obligations is limited to foreseeable damage typical to the contract.
(4) To the extent that liability is excluded or limited under the terms of this Section 8, this shall also apply to the personal liability of Global Changer’s employees, representatives, executive bodies and vicarious agents.
(5) Limitations periods applicable to claims for damages and reimbursement of expenses shall be governed by applicable statutory provisions.
(6) Unless otherwise provided in writing in the contract, Global Changer is only liable under the contract to the customer and, if applicable, to a third party specified by name in the contract. Liability to other third parties is excluded with the exception of liability in tort.
9. Contract term and termination of the contract
(1) The term of the respective contract depends on the individual order. Unless otherwise
specified in the individual order, the contract shall be automatically extended by the period of time specified in such individual order if the contract is not terminated in writing on four (4) weeks’ notice to the end of the contract term. If a period of more than one year is provided for in the individual order, the contract shall be extended by one year in each case if the contract is not terminated in writing on four (4) weeks’ notice to the end of the contract term.
(2) Contracts concluded for an indefinite term may be terminated by either party on three months’ notice prior to the end of a calendar month. This is without prejudice to the
right of termination without notice for good cause.
(3) Notice of termination must be provided in writing.
(4) Global Changer will, to the extent that the creation and provision of documents has been agreed in the individual order, supply them to the customer voluntarily no later than upon termination of the contract; in the case of extraordinary termination, in the respective state of completion.
10. Confidentiality and referring to the customer as a reference, inclusion in databases
(1) With regard to all internal technical and commercial information (e.g. prices, costs, etc.), including information exchanged or made available within the scope of using the services and/or within the scope of providing options for accessing services (hereinafter collectively referred to as ‘Information’), the parties undertake to use such Information solely for the purposes described in, and in accordance with, the provisions of these General Terms and Conditions, however to keep such Information confidential for all other purposes and not to disclose such Information to third parties without the prior written consent of the other party.
(2) The obligations set out above do not apply to such Information for which the receiving party proves that
(a) They were aware of it prior to receipt; or
(b) It was publicly available prior to receipt; or
(c) It was made available to the public following receipt at no fault of theirs; or
(d) It was made available to them by a third party at any point in time without being subject to a confidentiality obligation; or
(e) It had already been developed by the receiving party, whereby independent development must be verified in writing.
(3) The preceding secrecy and non-disclosure obligations shall continue to apply after the termination of a contract.
(4) The customer grants Global Changer the revocable right to use activity and emission data obtained from the customer on the occasion of the use of services in anonymised form even after the end of the contract, in particular to record such data in Global Changer databases and to exploit such data commercially. The parties state expressly that Global Changer’s data protection obligations under these General Terms and Conditions remain unaffected.
(5) Furthermore, the customer grants Global Changer the right to include the customer in Global Changer’s reference customer lists and to refer to the customer as a reference. For such purposes, the customer grants Global Changer a simple licence to use the customer’s company name and logo. The customer may revoke this right in relation to Global Changer at any time with prospective effect.
11. Data protection
(1) To the extent that Global Changer has access to personal data of the customer, or from the customer’s sphere of influence, Global Changer will act exclusively as a processor and will process and use such data only for the purpose of performing the contract. Global Changer will follow instructions of the customer for the handling of such data. The customer shall bear any adverse consequences on the performance of the contract related to such instructions. The customer will reach agreement with Global Changer regarding Global Changer’s handling of customer data in accordance with applicable data protection laws and regulations.
(2) The customer remains the controller both with regard to the general contractual relationship and for purposes of data protection laws and regulations. If the customer processes personal data in connection with the contract (including collection and use), it is responsible for ensuring that it is entitled to do so in accordance with the applicable provisions, in particular provisions of data protection law, and shall indemnify Global Changer against claims by third parties in the event of a breach.
(3) The following applies with regard to the relationship between Global Changer and the customer: With regard to data subjects, the customer is responsible for the processing (including the collection and use) of personal data, unless Global Changer is responsible for any claims asserted by data subjects due to a breach of duty for which it is responsible. The customer will assume responsibility for reviewing, processing and responding to any enquiries, requests and claims from data subjects. This also applies if a data subject asserts a claim against Global Changer. Global Changer will support the customer within the scope of its duties.
(4) To the extent agreed otherwise, Global Changer warrants that customer data will be stored exclusively within the territory of the Federal Republic of Germany, a member state of the European Union or in another state party to the Agreement on the European Economic Area.
12. Final provisions
(1) The place of performance for all supplies of goods and services by Global Changer is the location of Global Changer’s registered office, unless expressly agreed otherwise in the respective individual order.
(2) To the extent permitted by law, all communications between Global Changer and the
customer shall be by electronic means. Global Changer reserves the right to choose a different form in individual cases, e.g. the written form.
(3) German law applies to the exclusion of the UN Sales Convention with regard to all contractual relationships between Global Changer and the customer.
(4) If the customer is a merchant, the sole court of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the location of Global Changer’s registered office.
(5) The invalidity of one or more provisions of this contract shall not affect the validity of the contract as a whole. The contracting parties undertake to replace any such ineffective contractual provisions with an effective provision that comes as close as possible to the economic purpose of the ineffective provision concerned. Until such time as such a provision has been agreed upon, the invalid provision shall be replaced by a provision which comes closest to the economic purpose of the invalid provision. The same applies in the case of a gap in the contract that needs to be filled. Ineffective provisions of these General Terms and Conditions are to be replaced by the applicable statutory provisions.
(6) Changes and additions to the respective individual order are only effective if they have been expressly agreed upon by both parties (Global Changer and customer); the provisions of Section 1(4) apply in such cases.
(7) Global Changer expressly reserves the right to amend the provisions of its general and special terms and conditions at any time and without need to indicate the grounds. Global Changer will inform the customer of the change in the terms and conditions by email on a timely basis prior to the effective date of the respective changes. The changes shall be deemed to have been accepted unless the customer objects to the modified conditions within six weeks. When providing the notification email, Global Changer will inform the customer specifically about the six week period and the legal consequences of acceptance in the absence of objection.