Reuterweg 51-53 – 60323 Frankfurt am Main
Status: January 2025
1.1.1. These General Terms and Conditions (“T&Cs”) apply to all business relationships, sales, deliveries, services, and other legal transactions between the customer (hereinafter “Customer”) and Pink Elephant GmbH (hereinafter “Pink”), unless otherwise agreed. Other contractual terms shall not become part of the contract, even if Pink does not expressly object to them.
1.1.2. Even if no further reference is made to them when similar contracts are concluded in the future, only Pink’s T&Cs, in the version available at www.dm-p.com/de/agb at the time the Customer’s declaration is submitted, shall apply, unless the contracting parties agree otherwise in writing.
1.1.3. Customer’s terms and conditions contradicting these T&Cs shall not apply.
1.1.4 Agreements made in individual cases shall take precedence over these T&Cs. Oral agreements must be confirmed in writing.
1.2. Offer and acceptance
1.2.1. Pink’s offers are subject to change and non-binding, unless the offer is designated as binding in writing. A legal commitment only arises from a contract signed by both parties or from Pink’s written order confirmation, or by Pink
1.2.2. The Customer is bound by its declaration to conclude contracts for two weeks after dispatch. Pink
1.2.3. Pink reserves the right to make changes to services if manufacturer-related product changes result in the originally agreed contractual hardware or software no longer being available, and provided that this does not impair the overall performance of the contractual hardware or software and is reasonable for the Customer, taking into account Pink’s legitimate interests. The Customer will be informed immediately of any product changes.
1.3 Prices, payment
1.3.1. The agreed remuneration is due without deduction after performance of the service and receipt of the invoice by the Customer, and payable within 14 days.
1.3.2. Unless otherwise agreed, Pink’s list prices at the time of order placement apply. Value-added tax is not included in the price.
1.3.3. The Customer may only offset claims acknowledged by Pink or legally established. The Customer is only entitled to a right of retention or a right to refuse performance within this contractual relationship and with regard to undisputed, legally established claims.
1.4. Delivery and shipping
1.4.1. Pink’s compliance with delivery dates is subject to the Customer fulfilling any cooperation and provision obligations required for the performance of services in a timely manner.
1.4.2. Partial deliveries are permissible if they are economically usable by the Customer. They can be invoiced separately.
1.4.3. Delivery and service periods shall be extended by the period during which the Customer is in default of payment under the contract, and by the period during which Pink is prevented from delivery or performance due to circumstances beyond its control, and by a reasonable start-up period after the impediment has ceased. These circumstances also include force majeure and industrial disputes. Deadlines shall also be extended by the period during which the Customer unlawfully fails to provide a cooperative service, e.g., does not provide information, does not create access, does not supply an item, or does not make employees available.
1.4.4. Should Pink fail to meet a delivery deadline, the Customer must set a reasonable grace period, which may in no case be less than two weeks.
1.4.5. The goods are delivered by shipment. Shipping costs shall be borne by the Customer. They include the costs of transport insurance taken out by Pink.
1.5. Limitation of liability
1.5.1. Pink shall pay damages or reimbursement of expenses, regardless of the legal reason, exclusively in accordance with the following provisions.
1.5.2. Liability for intent, gross negligence, fraudulent misrepresentation, and under guarantee is governed by statutory provisions. In cases of gross negligence by simple vicarious agents, the amount of the Customer’s claim for damages is limited to the foreseeable damage typical for the contract, unless it concerns damages resulting from injury to life, body, or health, and in the case of Customer claims under the German Product Liability Act.
1.5.3. In the event of a slightly negligent breach of a cardinal obligation (an obligation whose fulfillment is essential for the proper execution of the contract, on whose observance the contracting party regularly relies and may rely, and whose breach jeopardizes the achievement of the contract’s purpose), Pink shall be liable for the typical damage foreseeable at the time of contract conclusion, however, limited to a maximum of EUR 1,000,000.00 per claim and EUR 1,200,000.00 for all claims arising from and in connection with the contract in total.
1.5.4. Pink is also liable for Customer claims under the German Product Liability Act.
1.6. Non-disclosure agreement
1.6.1. The contracting parties undertake to treat confidentially all items (e.g., software, documents, information) that are legally protected or contain business or trade secrets or are designated as confidential, which they receive or become aware of from the respective other contracting party before or during the execution of the contract, even beyond the end of the contract, unless they become publicly known without breaching the confidentiality obligation. The contracting parties shall store and secure these items in such a way that access by third parties is excluded.
1.6.2. The Customer shall only make the contractual items accessible to employees and other third parties who require access for the performance of their duties. He shall instruct these persons about the need for confidentiality of the items.
1.6.3. Without prejudice to the foregoing provisions, the parties are entitled to comply with their statutory disclosure obligations also with regard to the protected information.
1.6.4. Pink processes the Customer’s data required for business transactions in compliance with data protection regulations. Pink may name the Customer as a reference client after conclusion of the contract.
1.7. Termination of contract
1.7.1. Any termination of further performance exchange (e.g., in case of withdrawal, reduction, termination for good cause, damages instead of performance) must always be threatened by stating the reason and setting a reasonable deadline for remedy (usually at least two weeks) and can only be declared within two weeks after the deadline has expired. In cases mandated by law (cf. Section 323 (2) BGB), the setting of a deadline may be omitted. Whoever is wholly or predominantly responsible for the disturbance cannot demand rescission.
1.7.2. All declarations in this context require written form to be effective.
1.8. Written form
All amendments and/or additions to these GTC, including amendments and/or additions to this clause 1.8, must be made in writing to be effective.
1.9. Changes to the GTC
Pink is entitled to make changes to the applicable T&Cs, which Pink will announce to the Customer in writing in advance (including the objection period), and which will come into force unless the Customer objects to them within two weeks of receiving the announcement.
1.10. Applicable law, place of jurisdiction
1.10.1 The law of the Federal Republic of Germany shall apply, excluding conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).
1.10.2 The exclusive place of jurisdiction for all disputes between the parties is Osnabrück or, at Pink’s discretion, the Customer’s registered office.
1.11. Severability clause
Should a provision of these GTC be or become invalid in whole or in part or not contain a necessary provision, this shall not affect the validity of the remaining provisions. The parties shall replace an invalid provision by immediate agreement with a provision which, as far as legally possible, comes closest to the content of the invalid provision and most closely corresponds to the economic interest of the parties in the invalid provision.
2.1. Scope of application
The following provisions of clause 2 shall apply in addition to the general provisions of clause 1 to all contracts between the contracting parties, insofar as the subject matter of these contracts is the permanent provision of hardware and/or software to the customer.
2.2. Granting of rights for software
2.2.1 The Customer receives a non-exclusive, unlimited right to use the contractual software to the extent described in the order confirmation. The contractual software may only be used simultaneously by a maximum number of natural persons corresponding to the licenses acquired by the Customer. Permitted use includes the installation of the contractual software, loading it into RAM, and its intended use by the Customer. The number of licenses, as well as the type and scope of use, are otherwise determined by the license certificate. In no case does the Customer have the right to rent or otherwise sublicense the acquired contractual software, to publicly reproduce or make it accessible via wired or wireless means, or to make it available to third parties, whether for a fee or free of charge, e.g., by way of Application Service Providing or as “Software as a Service”.
2.2.2. The Customer is entitled to create a backup copy if this is necessary to secure future use. The Customer shall visibly affix the note “Backup Copy” and a copyright notice from the manufacturer to the created backup copy.
2.2.3. The Customer is only entitled to decompile and reproduce the contractual software insofar as this is legally provided for. However, this only applies on the condition that Pink has not made the necessary information available to the Customer upon request within a reasonable period.
2.2.4. The Customer is entitled to permanently transfer the acquired copy of the contractual software to a third party by handing over the license certificate and documentation. In this case, he shall completely cease using the program, remove all installed copies of the program from his computers, and delete or hand over to Pink all copies located on other data carriers, unless he is legally obliged to retain them for a longer period. Upon Pink’s request, the Customer shall confirm in writing the complete implementation of the aforementioned measures or, if applicable, explain the reasons for a longer retention period. Furthermore, the Customer shall expressly agree with the third party to observe the scope of the rights granted in accordance with this provision. Splitting acquired license volume packages is not permitted.
2.2.5. If the Customer uses the contractual software to an extent that exceeds the acquired usage rights qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of acquired licenses), he shall immediately acquire the necessary usage rights for the permitted use. Should he fail to do so, Pink will assert its rights.
2.2.6. Copyright notices, serial numbers, and other features serving program identification may not be removed or altered from the contractual software.
2.3. Retention of title
Ownership of the delivered goods and rights shall not pass to the customer until the contractual remuneration has been paid in full.
2.4. Guarantee
Product descriptions, representations, test programs, etc., are service descriptions, but not guarantees. A guarantee requires a written declaration by Pink.
2.5. Warranty
2.5.1. If the Customer demands supplementary performance due to a defect, Pink has the right to choose between rectification, replacement delivery, or substitute performance. If the Customer has set Pink a further reasonable grace period after a first period has expired without success, and this period has also expired without success, or if a reasonable number of attempts at rectification, replacement delivery, or substitute performance have been unsuccessful, the Customer may, under the statutory conditions, at his discretion, withdraw from the contract or reduce the price and demand damages or reimbursement of expenses. Supplementary performance may also, under certain circumstances, be effected by handing over or installing a new program version or a workaround.
2.5.2. Defects must be reported in writing by providing a comprehensible description of the error symptoms, proven, where possible, by written records, hard copies, or other documents illustrating the defects. The notice of defect should enable the reproduction of the error. Statutory inspection and notification obligations of the Customer remain unaffected.
2.5.3. The limitation period for defect claims is 12 months from the transfer of risk. This does not apply if Pink is liable without limitation in accordance with Section 1.5. For licensed items, the limitation period begins with the delivery of the first copy of the licensed item, including the user manual. In the case of delivery of updates, upgrades, and new versions, the period for these parts begins with their respective delivery.
2.5.4. The Customer shall immediately inspect the delivered items for any transport damage or other external defects, secure the corresponding evidence, and assign any recourse claims to Pink upon submission of the documents.
2.5.5. Claims for damages are subject to the limitations of Section 1.5.
3.1. Scope of application
3.1.1. The following provisions of Section 3 apply in addition to the general provisions of Section 1 for all contracts between the contracting parties, insofar as they concern the temporary provision of hardware and/or software to the Customer.
3.2. Rights of the customer to software
3.2.1. The Customer is only entitled to process his own data with the program in his own operations for his own purposes. Pink hereby grants him the necessary authorizations for this use as a simple right of use for the duration of the contract. The usage restriction to the respective number of workstations ordered must be observed.
3.2.2. The Customer is not entitled to pass on the software or parts thereof to a third party, or to enable a third party to use or take cognizance of it, or to use the software for a third party.
3.3. Contract duration
3.3.1. Unless otherwise expressly stipulated, the contract begins with delivery.
3.3.2. The contract can be terminated by the Customer with three months’ notice to the end of the contract term.
3.3.3. The contract can be terminated by Pink with 3 months’ notice to the end of the contract term.
3.3.4. Termination for good cause must first be threatened in writing with a notice period of at least two weeks, stating the reason for termination.
3.3.5. Any termination requires written form to be effective in accordance with Section 126 BGB.
3.3.6. Upon termination of the contract, the Customer shall return all items provided to Pink or confirm in writing that they have been deleted, and shall delete or destroy all copies of software and confirm in writing that this has been done.
