General Terms and Conditions

 

1. General Terms and Conditions for IT Services

1. Scope of Application

 

1.1 All deliveries and services as well as any other legal transactions within the entire business relationship of PERFORMAX PERSONALTRAINING – hereinafter referred to as “PERFORMAX” – shall be carried out exclusively on the basis of these General Terms and Conditions in their respective valid version and shall form an integral part of the contract, unless otherwise expressly agreed in writing in an individual agreement between PERFORMAX and the contractual partner or client.

 

1.2 At the latest upon acceptance of the goods or services, these terms shall be deemed accepted. They shall also apply if they are not expressly referred to in subsequent contracts or services.

 

1.3 Any amendments or supplements to a contract must be made in writing.

 

1.4 Offers made by PERFORMAX are subject to change and non-binding and are made subject to correct and timely self-supply by suppliers.

 

1.5 PERFORMAX shall be entitled to withdraw from contracts if circumstances arise which indicate that the other contracting party lacks creditworthiness.

 

2. Delivery and Performance

 

2.1 Drawings, illustrations, dimensions, weights or other performance data shall only be binding if expressly agreed in writing. Reasonable technical and design deviations from specifications in brochures, catalogues and written documents, as well as changes in models, construction and materials due to technical progress and further development, are reserved and shall not give rise to any claims against PERFORMAX.

 

2.2 PERFORMAX expressly reserves the right to make reasonable partial deliveries or partial services and to invoice them accordingly.

 

2.3 Any agreement to postpone delivery or performance dates must be made in writing.

 

2.4 The scope of work, the methodology and the nature of the work results are determined by PERFORMAX’s offer, unless otherwise regulated in written agreements between the parties. Any changes, additions or extensions require a separate written agreement.

 

2.5 Consulting services within the scope of a contract for work and services shall be deemed fulfilled once the necessary analyses, the conclusions derived therefrom and the recommendations have been prepared and explained to the client. It is irrelevant whether or when the conclusions or recommendations are implemented.

 

2.6 Upon request by the client, PERFORMAX shall provide information on the status of order execution. A comprehensive written report, particularly for submission to third parties, must be agreed separately.

 

2.7 Six weeks after exceeding a non-binding delivery date, the contractual partner may request PERFORMAX in writing to deliver or perform. Upon receipt of such request, PERFORMAX shall be in default. Any claim for damages due to delay caused by slight negligence shall be limited to a maximum of 5% of the agreed remuneration. If the contractual partner withdraws from the contract or claims damages in lieu of performance, PERFORMAX must be granted an additional reasonable period for delivery or performance. Liability shall be excluded if the damage would have occurred even if the delivery date had been met. In the case of exceeding a binding delivery date, no reminder is required. The above provisions shall apply accordingly.

 

2.8 PERFORMAX reserves the right to withdraw from the contract if a delivery or performance delay caused by one of the aforementioned events lasts longer than six weeks and is not attributable to PERFORMAX.

 

2.9 In the event of acceptance delay, PERFORMAX shall be entitled, in addition to its payment claim, to either set a new delivery or performance date or withdraw from the contract. In the event of non-acceptance, PERFORMAX may claim damages amounting to 15% of the contractual remuneration.

 

3. Contract Duration and Termination

 

3.1 The contract duration shall be determined by the agreement between the parties. The contract may be terminated early at any time with eight weeks’ notice by either party if operational reasons of the client so require. In such cases, remuneration shall be governed by Section 649 of the German Civil Code (BGB).

 

3.2 If no specific written agreement exists regarding the use of PERFORMAX’s services, the contract shall be concluded for an indefinite period. It may be terminated by either party with six months’ notice to the end of the calendar year. Termination must be in writing. Service contracts may be terminated with fourteen days’ notice to the end of the month. The right to terminate without notice for good cause remains unaffected.

 

 

4. Remuneration and Payment Terms

 

4.1 Unless otherwise agreed in writing, all invoices are payable immediately upon receipt without deduction. Invoices shall be issued upon delivery or performance. In the event of default, default interest shall be charged at 8 percentage points above the base interest rate pursuant to Section 247 BGB.

 

4.2 All prices are exclusive of statutory VAT at the applicable rate.

 

4.3 Where fixed prices are agreed, one third of the order value shall be due upon conclusion of the contract, one third upon delivery, and one third upon acceptance of the work.

 

4.4 Fees for PERFORMAX’s services shall be based on the rates agreed in the individual agreements, unless otherwise stipulated in special cases.

 

4.5 If the payment terms are not complied with, PERFORMAX may require delivery or performance against cash payment, advance payment or provision of security. All outstanding claims shall become immediately due.

 

4.6 In the case of services, PERFORMAX shall be entitled to reimbursement of expenses incurred in addition to its fees. Reasonable advances may be requested. Objections to work performed do not entitle the client to withhold payment. Set-off is excluded unless counterclaims are undisputed or legally established.

 

4.7 PERFORMAX reserves the right to reasonably increase prices in the event of cost increases, particularly due to supplier price increases or exchange rate fluctuations.

 

4.8 If the client changes or cancels orders or alters the conditions for service provision, the client shall reimburse all resulting costs and indemnify PERFORMAX against third-party claims.

 

4.9 If the client withdraws from the contract before work has commenced, PERFORMAX may charge a reasonable cancellation fee.

 

 

5. Factoring

 

5.1 Only PERFORMAX’s delivery and payment terms shall apply. Deviations shall only apply if expressly agreed in writing.

 

5.2 PERFORMAX is entitled to assign claims arising from its business relationships.

 

5.3 The contractual relationship shall be governed exclusively by German law.

 

5.4 Place of jurisdiction is Mainz.

 

5.5 If the buyer is in default, all claims shall become immediately due.

 

5.6 Enforcement of retention of title rights does not require withdrawal from the contract, unless the debtor is a consumer.

 

5.7 Payments shall be made to VR FACTOREM GmbH, to whom PERFORMAX has assigned its claims. PERFORMAX will send separate confirmation details.

 

5.8 Set-off and retention rights are excluded unless counterclaims are undisputed or legally established.

 

 

6. Retention of Title

 

6.1 Contractual products remain the property of PERFORMAX until all claims have been settled.

 

6.2 In the event of default or insolvency, PERFORMAX may withdraw from the contract and reclaim the goods.

 

6.3 Assertion of retention of title shall not constitute withdrawal from the contract if the client is a merchant.

 

6.4 Goods delivered for testing or demonstration purposes remain the property of PERFORMAX.

 

 

7. Warranty

 

7.1 The parties acknowledge that software and hardware errors cannot be completely excluded under all conditions.

 

7.2 PERFORMAX warrants that the products correspond to their general descriptions.

 

7.3 No warranty is given that the products will meet the client’s specific requirements.

 

7.4 Warranty excludes damage caused by misuse, wear and tear, incorrect operation, force majeure or unauthorised modifications.

 

7.5 Warranty claims are non-transferable.

 

7.6 Manufacturer warranties shall be passed on in full.

 

7.7 Goods must be inspected immediately and defects reported in writing within six calendar days.

 

7.8 PERFORMAX may choose repair or replacement. Further claims are excluded.

 

7.9 Labour costs for rectification shall be borne by PERFORMAX; other costs by the client if reasonable.

 

7.10 If no defect is found, PERFORMAX may invoice all incurred expenses.

 

 

8. Limitation of Liability

 

8.1 Liability for slight negligence is limited to foreseeable typical damages arising from breach of essential contractual obligations.

 

8.2 If damage is covered by insurance, PERFORMAX shall only be liable for disadvantages incurred.

 

8.3 No liability exists where defects result from the client’s specifications or lack of cooperation.

 

8.4 Claims for damages outside warranty exist only in cases of intent or gross negligence.

 

8.5 Personal liability of managing directors, agents and employees for slight negligence is excluded.

 

8.6 Claims arising from consulting services shall lapse after two years.

 

 

9. Client’s Duty to Cooperate

 

9.1 The client shall support PERFORMAX and provide all necessary information and documentation.

 

9.2 Accuracy and completeness must be confirmed in writing upon request.

 

9.3 Work results may only be used for the client’s own purposes.

 

9.4 Failure to cooperate entitles PERFORMAX to terminate the contract after notice.

 

9.5 Other service providers may only be involved with PERFORMAX’s consent.

 

9.6 PERFORMAX shall treat all confidential information with strict confidentiality.

 

9.7 Change requests shall be implemented where reasonable and invoiced accordingly.

 

9.8 Until changes are agreed in writing, work shall continue unchanged.

 

 

10. Interpretation Aid Regarding Freedom from Defects

 

10.1 Interim documents shall serve as interpretative guidance unless promptly objected to.

 

 

11. Completion of the Contract

 

11.1 The contract shall be deemed completed upon delivery and acceptance or lack of objection within four weeks.

 

 

12. Delay and Force Majeure

 

12.1 After expiry of a reasonable grace period, the client may withdraw from the contract.

 

12.2 Force majeure entitles PERFORMAX to postpone performance.

 

 

13. Industrial Property Rights and Copyrights

 

13.1 Software shall be provided in accordance with the respective licence terms.

 

 

14. Loyalty Obligation

 

14.1 Mutual loyalty is required. Poaching of staff within 12 months is prohibited and subject to a contractual penalty of EUR 10,000.

 

14.2 The client undertakes not to recruit PERFORMAX staff for one year.

 

 

15. Right of Retention and Document Storage

 

15.1 PERFORMAX retains documents until full payment.

 

15.2 Documents shall be returned after settlement of claims.

 

15.3 Retention obligations expire after specified periods.

 

 

16. Protection of Intellectual Property

 

16.1 Work results may only be used for contractual purposes.

 

16.2 Breaches entitle PERFORMAX to additional remuneration.

 

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17. Confidentiality and Data Protection

 

17.1 All information shall be treated as strictly confidential.

 

17.2 Electronic storage and processing is permitted in compliance with data protection law.

 

17.3 Processing of personal data shall comply with the GDPR.

 

 

18. Final Provisions

 

18.1 Assignment of claims requires prior written consent.

 

18.2 Offers are valid for thirty days.

 

18.3 German law applies. Place of performance and jurisdiction is Mainz.

 

18.4 Data processing is carried out using automated systems.

 

18.5 Personal data shall be processed in accordance with the GDPR.

 

18.6 Should any provision be invalid, the remaining provisions shall remain effective (severability clause).