Terms and Conditions
§ 1. General
- These terms and conditions apply only to entrepreneurs within the meaning of Section 14 BGB, legal entities under public law or special funds under public law. They apply not only to the contractual relationship in which they were included, but also to all future business relationships, if we do not refer to any other terms and conditions.
- Divergent, conflicting or supplementary terms and conditions of the customer, even as far as we know, do not become part of the contract, unless their validity is expressly agreed. These terms and conditions apply even if we perform the service to the customer without reservation in the knowledge of conflicting or deviating from our terms and conditions or additional conditions.
§ 2 Conclusion of contract
- Our offers are subject to change. By accepting an offer, the customer makes a binding declaration that he wants to order the specified services. We are entitled to accept the contract offer made with the customer's order within one week of receipt. Acceptance can be declared either expressly or by the start of processing the order.
- As shown in the offer, third-party services are the subject of the order, these are subject to self-delivery. Should the services not be available for reasons that were unforeseeable for us at the time the contract was concluded, or should we not be supplied by a supplier through no fault of our own, we have the right to withdraw from the contract in this respect.
- As part of the quality of our service, only the information in our offer and any attachments to it shall be considered as agreed. Public statements, promotions or advertising that differ from this do not represent an indication of the quality of the service in accordance with the contract.
§ 3 Deadlines
The specified delivery or service dates are non-binding, unless they are expressly described as binding by us. If there is a risk of failure to comply with agreed deadlines, we will immediately inform the customer of this, giving the reasons and the possible duration of the delay.
§ 4 Optimization of websites and advertising measures, advice
- For services aimed at improving the placement of a website in search engines or optimizing advertisements, we owe a concrete effort to the best of our knowledge and belief and the generally accepted state of the art, but do not owe any concrete success. The placement of search results within a search engine service is at the discretion of the respective search engine operator and may change at any time by rebalancing or changing ranking factors. In our work, we will take into account the factors known to us accordingly for weighting search results or displaying advertising, but cannot rule out the possibility that a change in ranking factors may result in a change in the ranking factors at any time.
- Unless otherwise agreed, contracts referred to in paragraph 1 shall have a minimum duration of 12 months. They are extended by a further 12 months if the contract is not terminated with a notice period of 3 months before the end of the contract period. Otherwise, the right to cancel is excluded. The right to cancel for good cause remains unaffected.
§ 5 Delivery of software and websites
- If the delivery of software or a website (together “software”) has been agreed on the basis of a specification, delivery is based on this. In addition, depending on the order, a list of requirements for the software that is sufficient in our opinion will be prepared in return for payment or we will create the software in the system described in paragraph 2. Once the list of requirements has been accepted by the customer, this is a binding requirement for our further services. It can be adjusted at any time in the course of cooperation between the parties by joint agreement. If no remuneration has been agreed for creating the list of requirements, the agreed hourly rates for creating the software apply.
- If the software is not to be created on the basis of a list of requirements, the development is carried out using the Scrum agile development model. The parties each appoint project managers who are responsible for the respective management and control of the project. We then work with the customer at the beginning of the activity in the form of so-called user stories on the different uses of the software by subsequent users or other requirements. The sum of the initial user stories is the so-called backlog, which is managed by us. From the backlog, the project managers then select a specific number of thematically related user stories, which are to be implemented in software in a first so-called sprint. When the sprint is completed, we present the software created in this way to the customer to check whether the objectives of the sprint have been achieved. If not completed, the project managers will determine the measures to be implemented to achieve the goals. When the goals are achieved, they determine which user stories should be implemented in the next sprint. If a party discovers open issues during the implementation of a sprint or needs coordination with the other party, the project managers will immediately coordinate accordingly. The implementation of the remaining sprints is carried out as agreed above. This system is maintained until the development of the software is completed. Insofar as services have been accepted as part of the audit of a sprint, final acceptance for these services can only be refused if new deficiencies occur during the acceptance test.
- The customer may request changes and additions to the service at any time until acceptance of the software, if these are technically feasible and reasonable for us. We will review such requests for changes within a reasonable period of time and inform the customer of the result, together with any resulting costs and delays in deadlines, in the form of a binding offer. During an ongoing service change process, we will continue the previously commissioned services as planned, unless the customer instructs us in writing that the work should be discontinued or restricted until a decision is made on the change of service.
- Unless otherwise agreed, we owe the development of software in accordance with the usual state of the art.
- Unless otherwise agreed, we are free to decide on the development environment to be used and on the use of libraries, frameworks, etc. as long as their delivery is due to the order or they can be obtained from the customer free of charge and under normal conditions. On the acceptance date, the customer must be informed which libraries, etc. were used to create the software, what is required for the executable compilation and where the necessary programs, frameworks, etc. are available for download.
§ 6. Installing and Accepting Software
- Unless otherwise agreed, the customer is responsible for installing and parameterizing the software for acceptance. We will only import data into the software delivered by us with a corresponding express agreement.
- By installing the software, the parties will make an acceptance appointment for it. The customer is not entitled to productively use the software for the purposes of acceptance. Tacit acceptance is declared if the customer, upon our written request to declare acceptance within a period of at least two weeks after receipt of the request or to complain of defects preventing acceptance, does not agree accordingly.
- If the parties carry out partial approvals for individual services, no further acceptance is required for these.
§ 7. Rights, Source Code
- Upon payment of the agreed fee for the software, the customer acquires the right to use it for the purposes in accordance with the contract. Duplications of the software are only permitted to the extent necessary for use in accordance with the contract. Standard backup copies are permitted and are not considered a separate installation.
- The right to process and transfer or transfer the software or the possibilities of using it to third parties (in particular rental, software as a service) is not also transferred; legal claims of the customer remain unaffected.
- The customer is only authorized to make changes, extensions and other modifications of the software within the meaning of Section 69c No. 2 UrhG if this is absolutely permitted by law. Before the customer fixes errors in the software himself or through third parties, he must allow us to rectify the fault. The customer is not entitled to its own rights of use and exploitation — in addition to the rights of use granted under the contract.
- The customer is only entitled to decompile the software within the limits of Section 69e UrhG. He must first give us the opportunity to provide the necessary data and/or information within a reasonable period of time to establish interoperability of the software with other hardware and software.
- Insofar as the software should include open source software, the respective license terms apply to it.
- The customer is not entitled to the provision of the source code of the software unless this is necessary to achieve the purpose of the contract. This does not apply to open-source software.
- Insofar as the customer is given options to use the software before full payment, these can be revoked at any time.
§ 8 Open Source Software
- The software to be delivered by us may include open source software. Contrary to the otherwise agreed transfer of rights to the customer, the customer acquires rights to open source software in accordance with the license terms applicable to it.
- We will tell the customer which open source software is used under which license. We provide them to him free of charge by way of a donation in accordance with the requirements of the respective license. In this respect, our liability for open-source software is governed by Section 521 BGB. The remaining provisions of this contract regarding liability and defects do not apply to open source software.
§ 9 Delivery of documentation
- We are only responsible for the delivery of documentation of the software delivered by us against appropriate remuneration. In the absence of agreement, the preparation of documentation to be delivered is subject to the same hourly rates as agreed for its development.
- We are entitled to document the source code directly in it.
§ 10 Partial deliveries
- We are entitled to make partial deliveries if this is reasonable for the customer in accordance with the circumstances apparent at the time of conclusion of the contract.
§ 11 Obligations of the customer
- The customer undertakes to support our activities to the extent necessary. In particular, he creates, free of charge, all technical, personnel and spatial requirements incumbent upon him which are necessary for the proper execution of the contract. At our request, he will provide us with all data and information from his sphere that we need from him for the purpose of the contract. During the term of the contract, the customer will appoint an informed and competent contact person.
- Any agreed due dates and deadlines are extended by the time in which, despite a reminder, the customer delays an action incumbent on him or is otherwise responsible for the hindrance and this hinders our performance of services. A reminder is unnecessary if we have already set a reasonable deadline for our request for cooperation or if a delivery date has been agreed.
- The customer will immediately inform us of faults or deficiencies in our service and, within this framework, describe the fault or defect as precisely as possible, providing the information known and useful to him. Insofar as the customer is reasonably unable to provide us with this information, this is irrelevant to our performance obligation.
- The customer guarantees that he has the necessary rights to all data, information, documents, graphics, etc. provided to us and that their use in accordance with the contract does not conflict with third-party rights or laws. He releases us from all claims made by third parties against us due to a violation of sentence 1.
- The customer is obliged to create a current, restorable data backup of his systems before granting us access to them. He must inform us in text form against confirmation if there is no restorable backup of his data. This does not apply if we are commissioned to back up data.
§ 12 Remuneration
- Our services are subject to the fees agreed with the customer. If no fee has been agreed for a service agreed with the customer, our current price list applies; in the alternative, normal remuneration is considered agreed.
- All prices quoted by us are net prices and are in euros. If we provide our services abroad on the basis of the agreement with the customer, the customer bears all taxes, duties or other charges incurred abroad. The customer undertakes to provide us with all necessary tax certificates, tax assessments and all other documents required by us to fulfill their tax obligations abroad and in Germany.
- Purchase prices are due upon conclusion of the contract. In the case of work and service contracts, we are entitled to demand advance payments of 50% of the agreed remuneration. For work contracts, the due date of further advance payments is based on the requirements of Section 632a BGB. The following rules apply to the billing of further charges.
- If billing has been agreed based on time spent, our services will be billed retrospectively in units of 6 minutes per month on the basis of effective hours worked. The corresponding invoices are accompanied by a time note, which results in the invoiced services. Objections to the notice of time must be raised within four weeks of receipt, otherwise they are considered approved and correct.
- Agreed flat rates will be invoiced in advance.
- Activities during the night from 18:00 to 09:00 as well as on weekends and public holidays at our headquarters require a separate agreement. For nighttime work, the agreed hourly rates are increased by 50%. For activities on weekends and public holidays, the agreed hourly rates are increased by 100% and when working between 18:00 and 9:00 on these days by 150%.
- Travel times are billed at the agreed rates if we do not use the travel time for other, billable services. Travel expenses, accommodation costs and other expenses will be charged additionally upon proof. Journeys by car are charged at 0.50 euros net/km. There are no travel costs for trips within 10 km from our headquarters.
- If a service contract is terminated by the customer, we are entitled to full compensation for services already provided. We are entitled to 30% of the outstanding remuneration for services not yet provided. The customer reserves the right to prove that the share to which we are entitled in accordance with Section 648 BGB is lower than the percentage stated above. We reserve the right to prove that the share to which we are entitled in accordance with Section 648 BGB is higher than the percentage stated above.
- Payments can also be offset against the oldest due invoice even if the customer has a contrary repayment provision.
- We are entitled to send invoices to the customer in digital form.
§ 13 Liability
- Liability for intent and gross negligence is unlimited.
- In the event of a simple negligent breach of essential contractual obligations, the amount of liability is limited to foreseeable and contract-typical damage. Significant contractual obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the injured party may regularly rely. The limitation period for claims under this paragraph is one year.
- Paragraph 2 does not apply to claims arising from injury to body, health or life, fraudulent action, assumption of a guarantee and claims under the Product Liability Act.
- In addition, liability — irrespective of the legal basis — is excluded.
§ 14 Claims for defects
- Insofar as the customer is entitled to claims for defects, we are responsible for choosing the type of subsequent performance within the legal limits.
- The limitation period for claims for defects is one year. This period does not apply to claims for damages due to the violation of claims for defects; in this respect, the liability regulations apply.
- If the customer complains of the existence of defects and if, as a result of our resulting activity, there was no defect, we are entitled to charge our corresponding expenses at our general hourly rates in accordance with the agreed, lack of agreement.
Section 15 Offsetting and Retention Rights, Assignment
- The customer is only entitled to offset undisputed or legally established claims. The customer is only entitled to exercise retention rights with undisputed or legally established claims arising from the same legal relationship.
- The assignment of claims against us is excluded. This does not apply within the scope of Section 354a HGB.
§ 16. Data protection
If the customer instructs us to process personal data subject to Article 28 GDPR, we are prepared to conclude a standard contract for order processing. In addition, we commit ourselves to comply with existing legal requirements with regard to personal data that the customer provides to us for processing.
§ 17. Export regulations
- For our services, the customer is obliged to comply with export restrictions under national and international law, in particular EU and US law. On request, we will provide the customer with information about the goods and services subject to export restrictions.
- We are not required to ship goods or provide services to locations that are subject to export restrictions.
§ 18. Mention as a reference customer
We are entitled to use the customer's name and the logo used for his company name, including the services provided to the customer, as a customer reference in our advertising. This is done exclusively in a usual way that is reasonable for the customer.
§ 19 Force majeure
- Each party is temporarily released from its obligation to perform as long as it is prevented from providing the service due to force majeure. This also applies if the party is already in default.
- Force majeure means corresponding events within the meaning of Section 206 of the German Civil Code as well as an otherwise unusual and unforeseen event if the party that invokes this did not expect the event, did not influence its occurrence, was unable to prevent the consequence of which despite the application of due care and is therefore prevented from providing services. This applies in particular to war, terrorism, turmoil, pandemics, storms, environmental disasters or when the prevention of benefits is otherwise based on government orders.
- The party that invokes the existence of force majeure has
- to immediately inform the other party in writing of the fact and the reasons for this;
- to take, with the diligence of an ordinary businessman, the measures necessary to resume full performance of their obligations as quickly as possible;
- to make reasonable efforts to minimise the negative effects on the performance of this contract as far as possible;
§ 20. Final Provisions
- This contract contains all agreements between the parties regarding the subject matter of the contract. Any deviating ancillary agreements and previous agreements on the subject matter of the contract are hereby ineffective.
- Amendments and additions to this contract must be made in writing, unless a stricter form is required by law. This also applies to any waiver of the formal requirement.
- Other general terms and conditions of the parties do not apply to this contract. This applies even if reference has been made to their inclusion in subsequent documents relating to this contract (e.g. retrieval of services) without objection.
- Should any provision of this contract be or become void, ineffective or unenforceable in whole or in part, or should a provision necessary per se not be included, the effectiveness and enforceability of all remaining provisions of this contract shall remain unaffected.
- The contract is subject solely to the laws of the Federal Republic of Germany. Private international law does not apply insofar as it is waivable.
- The sole place of jurisdiction for all disputes in connection with this agreement is at our registered office. We are also entitled to claim claims against the customer at one of its legal places of jurisdiction.