Pams GmbH (hereinafter referred to as Pams) offers a web-based sales and customer relationship management software (hereinafter referred to as Pams) for small and medium-sized companies on the “Pams” website (hereinafter referred to as Pams).
The following General Terms and Conditions (hereinafter referred to as “GTC”) apply to all user contracts (hereinafter referred to as “contracts”) concluded between Pams and customers who are not consumers within the meaning of § 13 BGB (German Civil Code) or other relevant legal provisions via the “Pams” platform.
Deviating terms and conditions of the customer do not apply to contracts, unless Pams expressly agrees to their application in writing.
Conclusion of Contract, Trial Period
The offer provided on Pams to use the designated and described web-based software does not represent a binding offer by Pams.
The use of the software of Pams requires the creation of a customer account (in the following: account). For the creation of the account, the required data and a password must be specified. By confirming the creation of the account, the customer submits a binding offer to conclude a contract for the free of charge use of the software for trial purposes. Pams can accept this offer by setting up and granting access to the account or by sending a notification to the indicated e-mail address with the login details for the account set up.
By concluding a contract for the free of charge use according to paragraph 2.2 Pams grants the right to the customer to use the software after the granting of the access to the software or the notification of the login details by Pams exclusively for 14-days for trial purposes (trial period). Each customer is only entitled to one trial period. On customer request Pams can extend the trial period. Whether the trial period is extended is at the discretion of Pams. After the trial period has expired, the customer’s account will be blocked. There will be no automatic conversion into a contract for the fee-based use of the software.
After expiration of the trial period according to paragraph 2.3 the customer has the possibility to conclude a fee-based contract with Pams for the use of the software. The customer can choose between the software versions “Essential” and “Professional.
The preparation of an offer and the conclusion of a fee-based contract with monthly or annual billing, the contract is concluded in the account itself. For this purpose the customer must select the appropriate software category and confirm his selection. Then, in addition to the company name and billing address, the customer must also submit his credit card data. By confirming and sending this information, the customer concludes a contract with Pams for the fee-based use of the software with monthly billing.
Scope of Services, Change of Versions
For the duration of the concluded contract Pams provides the customer access to the selected version of the software on a Software-as-a-Service (hereinafter: SaaS) basis via the internet. The scope of functionalities for the booked software version, including any additional functionalities, arises from the description provided on the Pams website. Other services are not part of a contract for the (fee-based) use of the software
In principle the customer can switch between the offered versions of the software as well as the maximum number of employees, that can be administered by a version at any time with effect from the date of the adjustment of the customer access by Pams. The resulting remuneration arises from clauses 7.7 and 7.8 of the General Terms and Conditions.
Customers with a contract for a fee-based use of the software with monthly billing can make this adjustment of the version directly in the account. Customers with a contract for a fee-based use of the software with annual billing must contact Pams’s customer service (support@Pams.net or XYZ) for the adjustment of the version. If the customer changes into a version with a larger scale of features or into a version with a larger number of employees to be administered during a current billing period, the customer may use the additional features of the software or administrate a larger number of employees from the date of the adjustment of the customer access by Pams. If the customer changes to a version with a lower scale of features or with a lower number of employees to be administered, the customer may only use reduced features of the software or administer a lower number of employees from the date of the adjustment of customer access by Pams.
Pams offers 99% availability of the software provided on a SaaS basis on an annual average. Excluded from this are times in which the server cannot be reached due to other technical problems beyond the control of Pams (in particular force majeure, third party negligence). Also excluded are planned maintenance work (e. g. updates to the software) which either take place outside of the normal business hours from Monday to Friday between 9:00 am and 6:00 pm, or were announced in advance in accordance with section 4.2.
Pams is entitled to interrupt the availability of the software for maintenance purposes and due to other technical requirements. Maintenance work will be carried out whenever possible outside of the normal business hours from Monday to between 9:00 am and 6:00 pm. If a maintenance action results in an interruption of more than 30 minutes of use of the software during normal business hours from Monday to Friday between 9:00 am and 6:00 pm, Pams will announce this maintenance work by email.
Any disruption of the system availability must be reported by the customer without undue delay after it has become known. In case of reports and disruptions of the system availability which lead to a total failure of the software and which are received within the support hours (Monday to Thursday between 9:00 am and 6:00 pm), Pams will attempt to ensure a reaction time of five hours from the beginning of the disruption. In case of minor errors that do not lead to a total failure of the software and that occur during ongoing operation, Pams will attempt to respond no later than one working day after receipt of the error message.
In case of error reports, which are received outside the support hours, the fault elimination begins on the following working day. Delays of the incident elimination, that the customer is responsible for (e. g. due to unavailability of a contact person on the customer side or belated notification of the disruption), are not credited towards the incident elimination time.
Cooperation of the Customer
The following participation services are major obligations of the customer and are not only to be classified as secondary obligations or duties.
During the trial period according to sections 2.2 and 2.3, the customer is obliged to review the functionalities and the general condition of the software and to notify Pams about possible defects and other deviations from the requirements before concluding a fee-based contract for the use of the software. The customer cannot invoke defects and other deviations from the requirements, which were already known or present during the trial period, but were not reported before the conclusion of a fee-based contract for the use of the software.
The customer is obliged to provide a qualified contact person together with a deputy, who is entitled to make all necessary decisions, that are required for the contractually agreed performance of services or to immediately bring about such decisions without undue delay. The customer is obliged to inform about any changes of the contact person (including deputy without undue delay.
The customer is solely responsible for the content and data processed within the software. The customer hereby undertakes to use Pams’s software only in accordance with the contract and within the framework of the applicable statutory provisions and not to infringe any rights of third parties during use. The customer will inform Pams immediately and without undue delay in writing, about: (i) the misuse or suspicion of misuse of the contractually agreed service; (ii) a danger or suspicion of a danger for the compliance of data protection or data security which occurs within the scope of the provision of the contractually agreed service; (iii) a danger or suspicion of a danger for the service provided by Pams (e. g. by loss of login details or hacker attack).
The customer is obliged to ensure the technical requirements himself.
The connection to the internet in adequate bandwidth and latency is the customer’s responsibility.
The customer is responsible for taking state-of-the-art IT security measures within his own organization.
The customer is further obliged to ensure the confidentiality of the identification and authentication data assigned to his users as well as interface login data.
The customer is responsible for the professional setup and administration of the account. This applies regardless of whether Pams supports the customer setting up the account in whatever form. In Particular, this includes: (i) the professional setup of the account, in particular the migration of data, configuration of processes and products; (ii) the technical setup of Integrations in the Pams Account (iii) the administration of the account, in particular the creation of users and roles and the assignment of access to the account.
The customer is obliged to inform Pams in text form about occurring service disruptions (defects in the services, lack of availability) without undue delay and to transmit comprehensible information about occuring service disruptions. In case of occuring service disruptions the customer will support Pams to a reasonable extent in the identification and correction of errors. Pams is entitled to show temporary error-avoiding-possibilities to the customer and to eliminate the actual cause later by adaptation of the Pams software, provided that this is reasonable for the customer.
Grant of Rights
Pams grants the customer a non-exclusive, simple, non-transferable and time-limited – to the term of the (fee-based) contract – usage right for the booked software. For rights of use to Third-Party Systems and Partner Integrations, the provisions of the respective provider will apply.
The customer undertakes to use the software only in accordance with the contract and not to provide it to third parties to use.
Compensation, Payment Method and Terms of Payment
The prices stated at the time of order as listed on the website of Pams will apply. The prices listed there are monthly net prices in Euros, plus sales tax at the respective statutory amount where applicable. The amount of monthly remuneration for the use of the Software may depend on the following factors:
the selected number of users,
the selected software category (Essential, Professional) also referred to as “Plan” or “Package”.
The customer has the choice between monthly or annual billing. All payments are due in advance upon invoicing.
In case of monthly billing, the billing period begins on the day of the conclusion of a contract for the fee-based use of the software through the account and ends with the expiry of one month. Payments for contracts for the fee-based use of the software with monthly billing shall be made monthly in advance by credit card. The credit card will be charged on the due date. When paying with a credit card, Pams reserves the right to check the validity of the card, the transaction limit for debits and the address details. In case of a material reason Pams isentitled to reject the credit card as a means of payment. In case of monthly billing, an invoice in electronic form will be made available to the customerin his or her profile for retrieval by Pams and sent by email.
In case of annual billing, the billing period begins with the day the account is activated and ends after the expiry of one year. The invoice amount arises from the 12x monthly remuneration for the ordered software (section 7.1), minus the discount noted on the website of Pams for annual advance payment. Payments for contracts for the fee-based use of the software with annual billing must generallybe made by bank transfer annually in advance. In case of annual billing, an invoice for 12 months will be sent to the customer in electronic form by email. The payment is due two weeks from the invoice date.
The customer additionally has the option of direct debit payment for monthly and annual billing. If a direct debit payment method is selected, we use the SEPA Direct Debit Scheme.
In the case of a return debit (in particular due to lack of necessary coverage of the account, due to account expiry, unauthorized objection by the account holder or incorrect entry of account data), the customer authorizes Pams to submit the debit for the due payment obligation one more time. In such a case, the customer is obliged to pay the costs arising from the return debit. Pams reserves the right for further claims.
If the price category of the version with monthly billing increases due to an upgrade of the software category by the customer, Pams will invoice the difference between the advanced payment already made and the changed price until the end of the billing month either immediately or with the following invoice for the next billing month. If the price category of the version with monthly billing decreases due to a downgrade of the software category by the during the billing period, the customer is not entitled to a (pro rata) refund of the advance payment already made.
If the price category of the version with annual billing increases during the billing period due to an upgrade of the software category Pams will additionally invoice the difference between the advance payment already made or the amount already invoiced and the amount based on the changed price up to the end of the annual period (daily pro rata billing). If the price category of the version with annual billing decreases due to a downgrade of the software category during the billing period, the customer is not entitled to a (pro rata) refund of the advance payment already made.
In case of a payment default of the customer, provided that no payment was made even after expiration of a set deadline of one calendar week after the due date to the customer, Pams is entitled to block the customer’s access to the software immediately. Pams will inform the customer of this blocking in advance, setting a further deadline of one calendar week. In this case the customer remains obliged to continue paying the agreed remuneration plus any default interest due. Any damage to the customer caused by blocking the customers access to the software cannot be claimed from Pams. In case of default, the statutory provisions of §§ 286, 288 BGB or other relevant statutory provisions shall apply.
Contract Duration and Termination
As soon as the customer receives his access data, a free 14-day trial period begins (see sections 2.2 and 2.3). After this 14-day trial period has expired, the term will not be extended automatically. After the end of the trial period the customer can decide whether he wants to conclude a contract for a fee-based use of the software.
In case of contracts for the fee-based use of the software with monthly billing, a minimum term of one month shall apply. After the expiry of the minimum term, the contract shall be extended by extension periods of one month in each case, unless the customer terminates the contract before the beginning of the extension period.
In case of contracts for the fee-based use of the software with annual billing, a minimum term of one year shall apply. After the expiry of the minimum term, the contract shall be extended by extension periods of one year in each case, unless the customer terminates the contract with a notice period of three months prior to the beginning of an extension period. For the extension of contracts on the fee-based use of the software with annual billing, Pams will provide a new annual invoice to be transferred to the customer at the latest at the beginning of the new extension period.
Pams has the right to terminate fee-based contracts for the use of the software with monthly billing within a period of two weeks and to terminate fee-based contracts for the use of the software with annual billing within a period of three months to the end of the respective billing period.
Notification of termination must be given in textual format. The account of the customer will be locked as soon as the termination comes into effect.
The following terms and conditions contained in par. 9.2 through 9.5 apply, irrespective of the legal cause, to Customer’s claim for damages and/or reimbursement for wasted expenditure.
Liability for data loss is limited to the expenses that are typically incurred in the restoration of data in cases where backup copies have been made at regular intervals by means which are determined based on the risk involved. In addition, § 254 BGB (German Civil Code) shall apply if Customer has failed to make sufficient backup copies.
Statutory liability in the case of paid service provision. In the case of paid service provision Pams is liable according to the statutory provisions for damages resulting from the injury of life, of the body or health and for other loss due to a breach of duty resulting from intent, gross negligence and fraudulent intent. In addition Pams is liable according to the statutory provisions towards customers with a fee-based contracts for the use of the software for damages covered by liability under mandatory statutory provisions such as in the case of assumption of guarantees, fraudulent concealment of a defect or according to Product Liability Law (Produkthaftungsgesetz). Guarantees by Pams are only given in written form and in case of doubt are to be interpreted as such, only if they are referred to as “guarantee”.
Limitation of liability in the case of paid service provision. In case of slight negligence for paid service provisions, Pams is only liable for damages caused by Pams and which are due to such essential breaches of duty, which endanger achieving the purpose of this contract or to breaches of duties, whose fulfillment enables the proper execution of this contract in the first place and whose compliance the customer may rely on (cardinal duty). In these cases the liability of Pams is limited to 100% of the contract value.
Liability for free service provision. In the case of free service provision (e. g. within the test period) Pams is responsible only for damages, of gross negligence as well as fraudulent intent.
Confidentiality and Storage
Pams collects and uses the personal data of the customer only within the framework of the respectively applicable statutory provisions.
None of the contracting parties are entitled to transmit confidential information of the respective other contracting party to third parties without express consent (in textual form). This applies both to customers with contracts for free of charge use and contracts with a fee-based use. Any information, no matter whether written or oral, which (i) by its nature is confidential or subject to secrecy or (ii) which the contracting party, whom the information is transmitted to, must have recognised as confidential and a subject to secrecy because of exceptional circumstances. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties take at least the same precautions as they do in regards to their own confidential information. Such precautions shall at least be reasonable to prevent disclosure to unauthorized third parties. In addition both contracting parties are obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing of any misuse of confidential information. Furthermore, the confidentiality obligation applies beyond the duration of the contract until twelve months after the effective termination date of the contract.
Term and Termination
Pams has the right to change these general terms and conditions at any time or to amend regulations for the use of any newly introduced additional services or features of the software. Changes and amendments to the general terms and conditions shall be announced to the customer by email to the indicated email address not later than four weeks before the scheduled coming into force. The customer’s consent to the change of the general terms and conditions will be deemed granted if the customer does not object to the amendment in textual form within a period of two weeks.
Pams reserves the right to modify the software or to offer deviating functionalities. If significant changes of the software supported workflow of the customer and/or limitations in usability of so far generated data go along with the provision of a modified version of the software or a change of functionality of the software, Pams will announce this to the customer in textual form at the latest four weeks before the effective date of such a change. If the customer does not object to the change in textual form within a period of two weeks upon receipt of the notification of change, the change shall become part of the contract.
Pams further reserves the right to modify the software or to offer deviating functionalities, (i) to the extent necessary to make the services offered by Pams compliant to the law applicable to such services, in particular if the legal situation changes; (ii) to the extent Pams complies with a court order or authority decision addressed to Pams; (iii) to the extent necessary to eliminate security vulnerabilities of the software; (iv) due to significant changes in the services or contractual conditions of third-party providers (e.g. Integration Partners) or subcontracting companies (e.g. in the case of additional functionalities), or (v) to the extent that this is predominantly beneficial for the customer. Pams especially reserves the right to restrict or discontinue the provision of additional functionalities or Integrations if the technical partners for these additional functionalities or the providers of the Third-Party Systems significantly change or limit their services or terms of service and Pams can therefore no longer reasonably be expected to continue providing the above, such as if the additional expense due to Pams’s involvement would be disproportionately high.
Pams is entitled to adjust the prices for the fee-based contractual services to compensate personnel cost or other cost increases annually in an appropriate amount. Pams will announce these price adjustments and the time of effectiveness of the price adjustments to the customer in textual form. If the price increase is more than 10% of the previous price, the customer may object to this price increase within a period of two weeks from notification. A change in the price resulting from a change in the scope of features or the number of employees to be administered shall not be deemed a price adjustment within the meaning of this section 11.4.
If the customer objects to a change within the meaning of this section 11 in due form and due time, the contractual relationship continues under the previous conditions. In this case Pams reserves the right to terminate the contractual relationship extraordinarily with a notice term of one month.
Amendments to these general terms and conditions must be made in textual form.
If individual provisions of the general terms and conditions have not become an integral part of the contract as a whole or as a part or have become ineffective, the remaining contract stays effective. Insofar as provisions have not become an integral part of the contract or are ineffective, this part of the contract shall be governed by statutory provisions.
The contractual relationship between the contracting parties is exclusively subject to the law of the Federal Republic of Germany with explicit exclusion of the UN Convention on Contracts for the International Sale of Goods. Exclusive place of jurisdiction is the Stuttgart district Court.
These terms and conditions shall take precedence over the provisions of any other bilateral agreements or contracts or arrangements.