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Note

Protecting your personal data is of the highest importance for DAM GmbH. Our data protection procedures conform to the provisions of the German Data Protection Act (BDSG) and other regulations for data protection on the Internet. 

Use and limitation on use of personal data 

The storage of personal data via our contact form is subject to your consent. You alone decide whether you want to disclose the data required for registration. 

To request/cancel general information 

If you request information about DAM, you will be sent news about the company by e-mail and, where applicable, by postal mail. According to applicable law, you can cancel these informational mailings at any time. 

Transmission of personal data to third parties 

DAM does not transmit your personal data to third parties. Collection and/or transmission of personal data to government organizations and agencies takes place only within the provisions of applicable law. 

Right to inspect your profile  

You are entitled, by request and at no charge, to obtain information about the data stored concerning you. Furthermore, you have the right to have incorrect data or any of your data corrected, deleted or disabled.

Liability notice 

Despite careful review of the content, we cannot be held liable for the content of external links. The operators of linked websites are exclusively responsible for their content.  

General Terms and Conditions of DAM GmbH for Goods and Services 

1    Applicability

DAM GmbH sells, creates, supplies and installs goods, including software and hardware (subject matter of the contract) based exclusively on these Terms and Conditions of Business. These Terms and Conditions shall apply for all future business relationships, even insofar as they are not again expressly agreed. Customer's Terms and Conditions of Business or Purchasing shall apply only insofar as DAM has expressly agreed to them in writing. The Terms and Conditions herein only apply to companies, legal entities of public law and special estates under public law.  

2    Quotations, conclusion of the contract 

2.1  Quotations and price lists of DAM are always without engagement.

2.2  The contract concerning the goods and services which represent the object of the contract shall arise from the written order confirmation from DAM for an order placed by Customer based on the DAM quotation, unless Parties agree on a different procedure. If Customer's order deviates from the quotation from DAM, these deviations shall be deemed agreed only if DAM accepts them expressly in its order confirmation. The order confirmation can also take place via fax, e-mail or another type of electronically transmitted declaration from DAM. 

3    Delivery item, delivery deadlines  

3.1  1 The content and scope of the goods and services owed (hereinafter referred to as "Services") shall, unless otherwise agreed in writing, be based on the order confirmation from DAM, subordinately on the quotation from DAM and, as a supplement hereto, on these Terms and Conditions of Business.

The contractual qualities of the good/service owed shall be based on the written agreement; in the absence of such an agreement, it shall be based on the following, applied in the order of precedence in which they are listed here: the order confirmation from DAM, the quotation from DAM, and the specification of services of DAM valid at the time of the quotation. The quality description shall determine the use set forth in accordance with the contract. 

DAM shall be entitled to supply goods and Services of higher value at Customer's cost, unless this is economically unreasonable for Customer. 

Technical data, specifications, product and/or software descriptions, quality descriptions or other specifications of services shall not be construed as warranties or guarantees of quality.

3.2  The installation of the delivery, instruction and/or training are not owed or included in the price (e.g. for software) unless these Services are expressly agreed in writing. If DAM renders such additional Services at Customer's request, the prices set forth in the DAM price list valid at the time the service is rendered shall be applicable.  

3.3  Deliveries shall be made ex works, from DAM to the delivery address specified, at Customer's cost and risk. DAM shall be entitled to make partial deliveries unless these are not economically reasonable for Customer. Acceptance is a material contractual obligation of Customer.

3.4  Delivery dates, delivery periods and/or delivery time frames following an agreed-upon event (delivery times) shall be binding only if they have been confirmed as binding by DAM expressly and in writing. 

The prerequisites for compliance with the desired delivery times for deliveries are timely receipt of Customer's order and, in any event, the timely and proper performance of all provisions of materials, cooperation and, in particular, prepayments by Customer. If these and other agreed-upon requirements are not fulfilled, the delivery times shall be extended accordingly, plus a reasonable restart time, unless DAM is responsible for the delay. The legal rights of DAM in the event of delays in cooperation and Services from Customer shall remain unaffected.

3.5  The prerequisites for compliance with the desired delivery times for deliveries are timely receipt of Customer's order and, in any event, the timely and proper performance of all provisions of materials, cooperation and, in particular, prepayments by Customer. If these and other agreed-upon requirements are not fulfilled, the delivery times shall be extended accordingly, plus a reasonable restart time, unless DAM is responsible for the delay. The legal rights of DAM in the event of delays in cooperation and Services from Customer shall remain unaffected.

3.6  Delivery times shall be extended for DAM in the event of disruptions due to force majeure or other obstacles for which DAM is not responsible, insofar as such disruptions or obstacles have a significant impact on the service of DAM (for instance strikes, lockouts, war, disruptions in the supplies of suppliers, or operational disturbances) by the amount of time for which the obstacles persist, and by a reasonable restart time (but no more than three business days) after the obstacle is removed. If the delivery becomes impossible or unreasonable over the long term, each Party to the contract shall be entitled to withdraw from the contract effective immediately.

3.7  DAM is not obligated to take out an insurance policy for transport of the goods. At Customer's request and cost, the delivery of the goods will be insured against breakage, transport damage and fire damage.  

3.8  If the shipment is delayed at Customer's request or for reasons that are Customer's responsibility, the risk of performance and risk of remuneration shall pass to Customer at the time of notification of readiness for shipment. DAM shall be entitled to charge Customer storage charges in the amount of 0.5% of the price for each month or partial month beginning at the time of notification of readiness for shipment, but no more than a total of 5% of the net price. Both parties to the contract shall reserve the right to prove that storage costs were higher or lower.

4    Delay of the delivery

4.1  Within the provisions of the law, Customer shall be entitled to withdraw from the contract if the good/service from DAM is faulty or DAM, by its own fault, infringes on other contractual obligations.  

4.2  If DAM is delayed in only part of the delivery, Customer shall only be entitled to declare its withdrawal from the respective portion of the contract, unless the remaining portions of the goods and services are not economically useful on their own.

4.3  Customer shall be obligated, if demanded by DAM, to declare within a reasonable period whether it will withdraw from the contract due to a delivery delay for which DAM is at fault, demand compensation for damages instead of the good/service and/or reimbursement for expenses, or insist on fulfillment of the agreed-upon delivery.  

5    Prices and payment terms  

5.1  Unless otherwise agreed in writing, the prices and license fees shall be based on the order confirmation, subordinately on the quotation from DAM and, as a supplement hereto, the price list of DAM applicable at the time of conclusion of the contract.

5.2  All prices are listed net in euro, ex Stuttgart, Germany, plus legally applicable value added tax and other duties and taxes and plus transport and packing costs. If Customer desires the delivery to be insured (Section 3.8), the corresponding costs and fees shall be to Customer's account. No discount shall be granted unless this is expressly agreed in writing. 

5.3  If partial deliveries are rendered in accordance with Section 3.3, Sentence 2 of these Terms and Conditions of Business, DAM shall be entitled to segregate each of these and invoice them separately.

5.4  Prices and compensation shall be due at the time of service delivery/shipment. Payments shall be deemed made only when the monetary amount has been received by DAM and is freely available. 

5.5  The interest rate for interest on the due date, interest on use, interest for deferred payment and/or interest on late payments shall be 8 percentage points over the base interest rate. This does not exclude the enforcement of additional claims for damages.

5.6  Customer shall be entitled to offset only those claims which are undisputed or which are legally established. This shall apply correspondingly for Customer's rights of refusal of performance and rights of retention, whereby such rights can be asserted only insofar as they are based on the same contractual relationship.  

5.7  DAM shall be entitled to make Services contingent on partial or full prepayment of the claims for payment if, after conclusion of the contract, it becomes evident to DAM that its claim to compensation is endangered by Customer's inability to pay. This shall apply particularly if indications of a substantial deterioration of Customer's financial situation exist or if Customer is in default with payment of some or all of a claim for payment. The legal rights of DAM shall

6    Retention of title

6.1  Until complete payment of all claims of DAM arising from the business relationship with Customer, the delivered goods/rendered services shall remain the property of DAM (goods subject to retention of title). If the value of the goods subject to retention of title exceeds the total value of all secured claims by more than 20%, DAM shall be obligated, at Customer's request, to release the portion that exceeds 120%; the portion to be released shall be of its own choosing. 

6.2  In the event of a breach of duty on the part of Customer, particularly in case of payment default, DAM shall be entitled, even without first setting a deadline, to demand surrender of the goods subject to retention of title and/or to withdraw from the contract; in this case, Customer shall be obligated to surrender the goods immediately. The demand for surrender shall not be construed as a withdrawal from the contract by DAM unless an express declaration of the withdrawal is made.

6.3  Customer shall not be permitted to sell the goods subject to retention of title, pledge them as collateral, assign them as security, or transfer them to third parties. If the goods subject to retention of title are accessed by third parties, Customer shall be obligated to point out that they are the property of DAM and to notify DAM immediately in writing. All defense and prosecution costs arising in conjunction with such third-party access to the goods subject to retention of title shall be the sole responsibility of Customer.  

7    Rights of use 

7.1  DAM grants Customer the nonexclusive right to use the contractually owed software, supplied documentation and other Services protected by copyright, for an indefinite time and in the scope set forth in the agreement for its own purposes; this right is contingent on full payment of the due compensation. Unless otherwise agreed in writing, the usage rights for software shall pertain only to the version and release of the software expressly specified in the order confirmation and/or to the version and release supplied by DAM. Software is supplied in object code form only; retranslation (decompilation) of the program code into another display format is prohibited.

The scope of the usage rights granted (capacity-based or user-based) shall be determined by the agreed-upon specification of services or, in the absence of such an agreement, by the order confirmation from DAM. If these do not include any specification, for standard software, the scope shall be deemed to be that allocated in the DAM price list to the compensation to be rendered by Customer for software in accordance with the agreement. 

Customer shall not be entitled to modify, copy or distribute the software, tamper with the program code, or combine it with other software.

7.2  For granting usage rights to third-party software, the respective supplier's software terms and conditions (license terms) shall apply. As far as possible, DAM will point this out at conclusion of the contract and/or before use of the software.  

7.3  The software may be copied, reproduced or transmitted via a computer network only to the extent necessary for operation in accordance with the agreement and/or for archiving and backup purposes.

7.4  No rights to rent out or lease the software or comparable rights of assignment to third parties are granted. No rights to use the software to process data for third parties are granted.  

7.5  Any transfer to third parties of the usage rights granted shall require prior written consent of DAM, which DAM shall not be entitled to refuse without good reason. Companies affiliated with Customer are also third parties for the purposes of this provision.

7.6  Trademark and copyright notices in or on the software must be retained and not removed, even for copies 

7.7  Documentation and other materials must not be reproduced.

8    Material and legal defects

8.1  The limitation period for material and legal defects shall be one (1) year from delivery unless otherwise agreed in writing. This shall not apply for personal injury, liability in accordance with product liability law or in the event of fraudulent failure to disclose a defect. The duty of inspection and duty to give notice of defects in accordance with Section 377 of the German Commercial Code (HGB) shall be unaffected by this. 

8.2  No defect claims shall exist in the event of immaterial deviations from the agreed-upon qualities, immaterial defects, immaterial impairment of usability for the agreed-upon purpose and nonreproducible software errors.

Defect claims shall likewise not exist if Customer or third parties modify the service; install, repair or use it improperly; expose it to unsuitable environmental conditions; or if Customer makes excessive use of the service, unless Customer proves that these circumstances did not cause the defect that is the subject of the claim and that this will not make remedial action unreasonably difficult. Normal wear and tear shall not be construed as a defect.  

8.3  Customer shall notify DAM of any material defects, specifying the exact circumstances in which they became evident as well as their effects; this notification shall be detailed, traceable and in writing. If Customer claims or suspects any legal defects, or in the event of any reminders or claims of third parties in conjunction with a claimed legal defect, notification of these shall likewise be provided to DAM, providing evidence where possible.

8.4  When duly notified of any defects, DAM shall immediately verify and analyze such defects and then carry out rectification within a reasonable time, usually a period of up to twenty-one (21) days, unless it is entitled to refuse rectification according to the applicable legal or contractual provisions. This rectification period shall be extended accordingly if rectification within this period is impossible or unreasonable for DAM. In determining the reasonable time period, it is necessary to consider, in particular, the complexity of the goods supplied/services rendered, the remedial action or delivery free of defects, as well as the duration of the performance and any necessary deliveries from sub-suppliers.  

Customer shall enable DAM to search for and analyze the cause of the defect, provide DAM reasonable support during this process and grant it access to documents that may provide more information about a defect that has occurred or is claimed to have occurred. If the review of a defect claim determines that no warranty claim exists, DAM shall be entitled to demand reimbursement by Customer of the costs and expenses incurred by DAM according to the terms and prices of the respective applicable DAM price list, unless Customer could not have determined with reasonable efforts that no defect existed.

8.5  DAM shall be entitled to provide rectification by, at its option, eliminating the defect or by supplying an item/good that is free of defects. For software, subsequent improvement can also be carried out by supplying a new version, update or release, or by a workaround solution (patches). For legal defects, DAM shall also be entitled to eliminate the defect by obtaining corresponding usage rights from the third party for Customer or by modifying the Services such that the legal defect no longer exists. 

8.6  If rectification is not successful within a reasonable period set by Customer in writing, usually no more than 21 days, or if setting a deadline is unnecessary or unreasonable for Customer, if the legal prerequisites are in place, Customer shall be entitled to decrease the compensation by a reasonable amount or withdraw from the contract and demand compensation for damages instead of the good/service or reimbursement for expenses in its stead.

In particular, setting a deadline shall be unnecessary if DAM expressly refuses rectification or if rectification has failed. Rectification shall be deemed to have failed no earlier than after the second attempt.  

As a result of a defect, Customer shall only be entitled to declare its withdrawal from the contract with respect to the defective portion of the goods/services, unless the remaining portions of the goods/services are not economically useful for Customer on their own.

8.7  For legitimate defect claims, payments of Customer may be withheld only to an extent that is reasonably proportionate to the material defect. Customer shall be entitled to withhold payments only if asserting a defect claim, the legitimacy of which is beyond doubt or that has been recognized in writing by DAM. 

8.8  DAM shall be entitled to demand that expenses and costs for transport, travel time, labor and materials incurred because the delivered goods/rendered services have subsequently been moved to a location other than Customer's delivery address be reimbursed by Customer according to the terms and prices of the respective applicable price list, unless the movement corresponds to the agreed-upon use.  

8.9  Further claims or other claims than those set forth in this Section 8 and in Section 9 against DAM or the persons employed by it to perform the contract due to a material or legal defect shall be excluded.

9    Liability

The liability of DAM arising from and in conjunction with the conclusion and performance of the contract shall be limited as follows independently of the actual or legal basis, whether arising from contract or law:  

9.1  In cases of deliberate damage, liability for personal injury or liability in accordance with product liability law, the legal provisions shall apply.

9.2  In cases of damage due to gross negligence, the liability of DAM shall be limited to the typical damage that was foreseeable by DAM at the time of conclusion of the contract. This limitation of liability for damages caused by gross negligence shall not apply if the damage was caused by an organ or executive of DAM or in case of a breach of a material contractual obligation.  

9.3  In cases of simple negligence, DAM shall be liable only insofar as the damage was caused by a breach of material contractual obligations or in cases of delay or an impossibility for which DAM is responsible. In these cases, the liability of DAM for pecuniary and property damages shall be limited to the typical damage that was foreseeable by DAM at the time of conclusion of the contract.

9.4  In cases of liability due to assumption of a warranty for the qualities of the subject matter of the contract or due to an event of impossibility, during which DAM was in default with the performance of its primary contractual duties, liability shall be limited to the foreseeable damages and those typical for this type of contract.  

9.5  The prerequisite for liability of DAM for a loss of data shall be that Customer has carried out a data backup with the required frequency and diligence, but at least once a day, and that these backed-up data can be used to restore the data. Liability of DAM shall always be limited to the extent of costs for restoring the unavailable data from a proper, specifically machine-readable, data backup.

9.6  For all cases not governed by Section 9.1, liability arising from and in conjunction with the conclusion and performance of the contract and independent of the actual or legal basis shall be limited to the liability amount agreed upon between Customer and DAM. 

10     Confidentiality

10.1 Insofar as in the course of performance of this Contract, either Party to this Contract obtains knowledge of confidential information (particularly technical information as well as business and operational matters) of the other Party to the contract or that of the respective persons employed to perform the contract, that Party shall be obligated to treat this as confidential.  

10.2 Quotations from DAM, cost estimates, proposals and specifications of services and comparable documents shall be deemed confidential information. These or the contents thereof may be passed on to third parties only after the prior express written consent of DAM is obtained.

10.3 In the event of a culpable breach of the aforesaid duties of confidentiality by Customer, DAM shall be entitled to demand a penalty for breach of contract from Customer, to be determined with equitable discretion. 

10.4 The duty of confidentiality in accordance with this Section 10 shall remain valid even after termination or fulfillment of the contract for a period of three (3) further years. Trademark rights (e.g. copyrights etc.) shall remain unaffected.

11    Other provisions

11.1 In performing its contractual duties, DAM shall be entitled to use, at its own discretion, employees, freelancers or other vicarious agents and persons employed to perform the contract; DAM shall also be entitled to have Services rendered by subcontractors.  

11.2 DAM shall be entitled to refuse fulfillment of duties arising from this Contract if doing so would violate export regulations.

11.3 Unless another exclusive place of jurisdiction is stipulated, Stuttgart shall be the jurisdiction for all legal disputes between DAM and Customer. The place of performance for the Services of both parties is the registered office of DAM GmbH in Stuttgart. 

11.4 This Contract is subject to the material law of the Federal Republic of Germany for domestic business affairs. The uniform UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (UNCITRAL sales law) is excluded.

11.5 If an individual provision of this Contract proves completely or partially invalid, this shall not affect the validity or enforceability of the remaining provisions of the contract. In this case, the Parties shall agree on respective replacement provisions that are closest to their corresponding original provisions economically and in their regulatory intent. The aforesaid shall apply correspondingly for unintentional gaps or loopholes.

11.6 Modifications and amendments to this Contract and these Terms and Conditions of Business must be in written form to be effective. This also includes any waivers of this requirement of written form.