Terms and Conditions

1. General Terms

1. These Terms and Conditions shall apply to businesses within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, or special funds under public law for all contractual relationships with us. They shall apply not only to the contractual relationship into which they have been incorporated but also to all future business relationships, unless we refer to different terms and conditions.

2. Deviating, conflicting, or supplementary terms and conditions of the customer shall not become part of the agreement, even if we are aware of them, unless their validity is expressly agreed to. These Terms and Conditions shall also apply if we perform the agreement without reservation in the knowledge of the customer's terms and conditions that conflict with, deviate from, or supplement our own Terms and Conditions.

2. Conclusion of Agreement

1. Our offers are non-binding. By accepting an offer, the customer declares bindingly that they wish to order the specified services. We are entitled to accept the contractual offer submitted with the customer's order within one week of receipt. Acceptance can be declared either expressly or by commencing the processing of the order.

2. Insofar as the subject matter of the offer is services provided by third parties (e.g., software or services from third-party providers) and we have concluded a specific, corresponding covering transaction with a third party for the performance of the agreement, these services are subject to the reservation of self-delivery. Should the services not be generally available for reasons that were not foreseeable for us at the time of concluding the agreement, or should we not be supplied through no fault of our own, we have the right to withdraw from the agreement to that extent. In this case, we will inform the customer without delay that delivery is not possible and, at their request, cancel the entire agreement if it is no longer of interest to them due to the missing service, and we cannot offer an equivalent replacement for the missing service that is reasonable for the customer.

3. Only the information in our offer or in the order accepted by us from the customer shall be deemed agreed upon as the quality of the service. Public statements, praise, or advertising that deviate from this do not constitute a contractual specification of the quality of the service.

3. Manner of Performance

1. We shall perform our services in accordance with the proven state of the art.

2. We shall provide the services of qualified employees at our own discretion for the performance of the services incumbent upon us. The right to issue instructions to our employees deployed within the scope of this agreement shall remain with us. The customer is not entitled to issue instructions beyond technical specifications for achieving the objectives of this agreement, in particular not regarding the manner of performance outside of technical parameters.

3. Within the agreed framework, we may determine the manner of performance at our discretion and are not bound by instructions from the customer. However, we are obligated to safeguard the legitimate interests of the customer, particularly with regard to agreed binding performance dates.

4. Coordination and meetings with the customer will generally be conducted in digital form (e.g., video conference).

5. Unless expressly agreed otherwise, we do not owe any specific performance result with our activity, but rather the provision of services. Even if a specific result should be described in the agreement or by the customer as the objective of our activity, we nevertheless only owe an effort to support the customer in achieving the objective and not the achievement of the objective in the sense of a work product. This applies in particular to services aimed at improving the placement of a website or other content in search engines or social media, or optimizing advertisements; such placements are at the discretion of the respective operator of a service and may change at any time due to a reweighting or modification of ranking factors. In our activities, we will take into account the factors known to us for the weighting of search results or the display of advertisements; however, we cannot exclude the possibility that a change in ranking factors, which may occur at any time, may lead to a change in placement.

6. Insofar as the scope of the services to be provided by us is not conclusively or sufficiently precisely defined with the commissioning, the customer shall coordinate and specify the services to be provided by us to the extent necessary on a case-by-case basis with us.

4. Delivery of Software and Websites

1. If the delivery of software or a website (collectively "Software") by us has been agreed upon based on a specification, the delivery shall be governed by such specification. Otherwise, depending on the order, a sufficiently detailed requirements list for the Software shall be created by us at our discretion against remuneration, or we shall create the Software according to the methodology described in paragraph 2. Upon acceptance of the requirements list by the Customer, it shall become a binding specification for our further services. The requirements list may be adapted at any time during the cooperation between the parties by mutual agreement. If no remuneration has been agreed upon for the creation of the requirements list, the hourly rates agreed upon for the creation of the Software shall apply.

2. If the Software is not to be created based on a specification sheet, the development shall be carried out according to an agile methodology in coordination with the Customer. We shall present the Software to the Customer at each stage of development in order to determine any need for adjustments or to establish completion. Until the Software is completed, the Customer may request changes and additions to the services, provided that such changes are technically feasible and reasonable for us. We shall review such change requests within a reasonable period of time and inform the Customer of the result, together with any resulting costs and postponements of deadlines, in the form of a binding offer.

3. Unless otherwise agreed, we shall be free to decide on the development environment to be used as well as on the use of tools, libraries, frameworks, etc., provided that their delivery is owed under the order or they can be obtained by the Customer free of charge and under customary terms and conditions. The Customer shall be informed at the time of acceptance which libraries, etc. were used for the creation of the Software, what is required for the executable compilation, and where the necessary programs, frameworks, etc. are available for download.

5. Training and Workshops

1. If no dates have been agreed upon in the order for the provision of training and workshops, the parties shall agree on corresponding dates without delay. If the customer does not cooperate in this regard, we shall determine the dates at our reasonable discretion.

2. If we are prevented from providing our service because the customer does not cooperate in agreeing on a date or cancels scheduled dates without good cause, we shall be entitled to invoice the full amount of the fees due to us for the service. The service shall then be provided on the dates subsequently agreed with the customer against remuneration of any additional costs incurred by us.

3 Training and workshop sessions may be postponed once by the customer for a reasonable period of time after consultation with us free of charge. If further postponements are made at the customer's request, we shall be entitled to a rebooking fee of 20% of the agreed fees for the postponed service as well as reimbursement of any non-cancellable expenses for booked travel. Requests for postponement must be received by us with a notice period of at least three working days at our registered office; this shall not apply if we agree to the postponement or if the time freed up can be used for other services. If agreed sessions are ultimately not carried out, the agreed remuneration shall be paid less any expenses saved.

6. Legal review of Our Services

1. The Customer shall be responsible for legally reviewing whether the services provided by us for advertising purposes (in particular, advertising materials) comply with the applicable statutory requirements. However, the obligation to comply with copyright regulations shall lie with us.

2. Insofar as we integrate third-party tools or offerings into advertising measures at the request of the Customer (e.g., analysis, tracking, or retargeting tools), the Customer shall be responsible for reviewing the legal permissibility of their use and the corresponding design of their implementation (e.g., obtaining consent).

3. If we have doubts about the legal permissibility, we shall inform the Customer accordingly. This shall not result in any obligation on our part to conduct our own legal review.

7. Obligations of the Customer

1. The customer undertakes to support our activities to the extent necessary. In particular, the customer shall, free of charge, create all technical, personnel, and spatial prerequisites incumbent upon them that are necessary for the proper performance of the agreement. At our request, the customer shall provide us with all data and information from their sphere that we require from them for the provision of our services within a reasonable period of time.

2. For the duration of the agreement, the customer shall designate an informed, competent, and authorized contact person.

3. The customer shall inform us without undue delay of any malfunctions or defects in our performance and, in this context, describe the malfunction or defect as precisely as possible, providing the information known to them and relevant to the purpose. Insofar as the customer is not reasonably able to provide us with this information, this shall not affect our performance obligation.

4. The customer guarantees that they have the necessary rights to all data, information, documents, graphics, etc. provided to us and that no rights of third parties or laws conflict with their use in accordance with the agreement. The customer shall indemnify us against all justified claims asserted against us by third parties due to a violation of sentence 1; the indemnification obligation shall also include the reasonable costs of our legal advice in connection with the asserted claims.

5. The customer shall bear the expenses incurred as a result of our having to repeat or delay work due to incorrect, subsequently corrected, or incomplete information provided by the customer.

8. Rights

Upon payment of the respective remuneration owed, the Customer shall acquire the rights to the services to be provided by us that are necessary for achieving the contractual purpose and for the contractual use of our services.

9. Dates

1. Unless explicitly designated as binding, specified delivery or performance dates are non-binding.

2. Binding due dates and deadlines shall be extended by the period for which the customer, despite a reminder, delays a cooperative action incumbent upon them or is otherwise responsible for the hindrance, and this impedes our performance. A reminder is dispensable if we have already set a reasonable deadline when requesting cooperation or if a date has been agreed upon for the performance of the cooperative action.

10. Remuneration

1. The remuneration for our services shall be the fees agreed upon with the customer. In the event that no fee has been agreed upon for a service stipulated with the customer, our current price list shall apply. In the absence of a current price list, a customary remuneration shall be deemed to have been agreed upon. Any agreed flat fees shall be invoiced in advance.

2. Our claims for remuneration shall remain unaffected if the Customer, for reasons attributable to the Customer or based on the Customer's free decision, should no longer make use of our services, provided that we are not guilty of any breach of duty and do not unlawfully refuse to continue providing the services. This shall apply in particular to claims that are invoiced on the basis of the Customer's advertising volume (AdSpend), especially if the Customer uses services provided by us for advertising.

3. All prices quoted by us are net prices and are expressed in Euro. Insofar as we provide our services abroad pursuant to the agreement with the Customer, the Customer shall bear all taxes, customs duties, or other levies incurred abroad. The Customer undertakes to provide us with all necessary tax certificates, tax assessments, and any other documents required by us to fulfill our tax obligations abroad and in Germany.

4. Insofar as billing based on time expenditure has been agreed upon, our services shall be invoiced on the basis of hours actually worked in units of 15 minutes, whereby the services rendered on a given day shall be aggregated for the purpose of preparing the invoice.

5.. Our fees shall be invoiced as specified in the offer. Insofar as services are provided over a period exceeding one month, the services rendered shall be invoiced monthly in arrears. For services for which billing based on time expenditure has not been agreed upon, we may demand reasonable advance payments.

6.. Activities during nighttime hours from 18:00 to 09:00 as well as on weekends and public holidays (at our registered office) require a separate agreement. For activities performed during nighttime hours, the agreed hourly rates shall be increased by 50 percent. For activities performed on weekends and public holidays, the agreed hourly rates shall be increased by 100 percent, and for activities performed during nighttime hours on these days, the rates shall be increased by 150 percent. Times shall be determined according to the time zone applicable at our registered office.

7. Travel time shall be invoiced at an hourly rate reduced by 50% if we do not use the travel time for other billable services. Travel expenses, accommodation costs, and other expenses shall be invoiced additionally upon proof. Trips by car shall be charged in accordance with our price list, available at https://go.ubilabs.co/pricelist. No travel expenses shall be incurred for trips within a 50 km radius of our registered office.

8. In the event of termination of a Werkvertrag according to the German Civil Code (BGB) by the Customer, we shall be entitled to full remuneration for services already rendered. For services not yet rendered, we shall be entitled to 30% of the outstanding remuneration. The Customer reserves the right to prove that the portion to which we are entitled pursuant to Section 648 of the German Civil Code (BGB) is lower than the aforementioned percentage. We reserve the right to prove that the portion to which we are entitled pursuant to Section 648 of the German Civil Code (BGB) is higher than the aforementioned percentage.

9. If the customer is in default of payment, we shall be entitled to charge a default fee per invoice in accordance with Section 288 (5) of the German Civil Code (BGB). The possibility of asserting any further damages caused by default shall remain unaffected.

10. We reserve the right to transmit invoices to the customer in digital format.

11. Adjustment of Fees in Long-Term Contractual Relationships

1. In long-term contractual relationships after the expiration of the initial contract term, we shall be entitled once per contractual year to adjust the fees agreed upon with the customer at our reasonable discretion in accordance with Section 315 of the German Civil Code (BGB) to reflect the development of the costs incurred by us in providing the services owed to the customer. Costs that are particularly relevant include our costs for technical services (especially data centers, cloud services, hardware, technical service), costs for the operation of our services (especially costs of our suppliers who indirectly work for the customer), costs of customer support (e.g., for support, billing, and IT systems), personnel and service costs, energy costs, as well as government fees, taxes, levies, and other government contributions.

2. The fee adjustment may lead to either an increase or a reduction in the agreed fees. Any increase shall be limited to the extent of the respective increase in our costs, and cost savings shall be passed on to the customer in the event of increased fees. Each adjustment shall take into account both cost increases and cost reductions of the cost components.

3. We shall notify the customer of the change in text form no later than two months before the planned effective date. In the event of a price increase of more than 5% per annum, the customer shall have the right to terminate the agreement in text form without observing a notice period as of the effective date of the change. This shall not apply if the change is based solely on a change in taxes, fees, levies, and contributions imposed by public authorities. The customer shall be informed of their right of termination.

12. Term and Termination

1. Unless otherwise agreed, the agreement shall be concluded for an indefinite period with a notice period of three months to the end of a calendar month. 

2. In the event of an individual agreement on the term of the contract with the Customer, as well as in the case of paragraph 1, termination shall only be possible at the end of the respective term.

The right to terminate the agreement without notice for good cause shall remain unaffected.

13. Defects

1. The statutory provisions shall apply to any defects in the services, unless otherwise agreed upon below.

2. Defects shall be notified by a comprehensible description of the error symptoms and documents illustrating the defects, insofar as it is possible for the customer to do so. The customer's statutory obligations to inspect and give notice of defects shall remain unaffected.

3. The rectification of defects shall be carried out, at our discretion, by repair or replacement. Insofar as it is reasonable for the customer, the rectification of a defect may also be carried out by providing a so-called workaround (circumvention of a defect).

4. If, in response to a customer's notice of defect, we provide services for the detection or rectification of defects, we may demand remuneration for this in accordance with our usual and reasonable rates, provided that no defect exists for which we are liable and this was apparent to the customer at the time of the notice of defect.

5. If the customer is in default of payment at the time of the notice of defect, we may refuse subsequent performance until the customer has paid the due remuneration to us, less an amount corresponding to the economic significance of the defect.

6. Modifications to the affected service by the customer or third parties shall lead to the exclusion of warranty rights, unless the customer can prove that the modifications did not cause the defect and have no unreasonable effects on the analysis and rectification of the defect. However, the warranty rights shall remain unaffected if the customer was entitled to make modifications within the scope of self-remedy and these were carried out in a professional manner and documented in a comprehensible way.

7. A limitation period of one year is agreed upon for claims for defects. This shall not apply to liability for damages due to defects; in this respect, the provisions on liability shall apply. For claims for damages based on refused subsequent performance, the statutory limitation periods shall only apply if the subsequent performance was demanded within the one-year limitation period for claims for defects. 

14. Liability

1. Liability for intent and gross negligence shall be unlimited.

2. In the event of a breach of material contractual obligations due to simple negligence, liability shall be limited in amount to foreseeable damages typical for the contract. Material contractual obligations are those whose fulfillment is essential for the proper execution of the agreement and on whose compliance the injured party may regularly rely. The limitation period for claims under this paragraph shall be one year.

3. Paragraph 2 shall not apply to claims arising from injury to life, body, or health, in the event of fraudulent conduct, in the case of the assumption of a guarantee, in the case of liability for initial inability or impossibility for which we are responsible, or for claims under the Product Liability Act (Produkthaftungsgesetz).

4. Our liability for the loss of data and resulting damages shall be excluded if and to the extent that such loss is the consequence of a failure to properly back up the data. This shall not apply if and to the extent that we were obligated to perform the data backup or if we caused the loss intentionally, through gross negligence, or fraudulently, or if we have violated a guarantee.

5. In all other respects, liability shall be excluded, regardless of the legal grounds.

15. Force Majeure

1. Each party shall be temporarily released from its obligation to perform to the extent and for as long as it is prevented from performing due to an act of force majeure (the "prevented performance"). This shall also apply in the event that the party is already in default. If one party invokes the existence of an act of force majeure, the other party shall also be temporarily released from the obligations owed by it in this respect, insofar as these are the consideration for the prevented performance or can only be rendered based on or together with the prevented performance.

2. Force majeure shall be corresponding events within the meaning of Section 206 of the German Civil Code (BGB) as well as any other unusual and unforeseeable event, provided that the party invoking it did not cause the event, could not have anticipated the event, could not influence its occurrence, could not prevent its consequences despite exercising due care, and is therefore prevented from performing. This shall apply in particular to war, terrorism, riots, pandemics, severe weather, environmental disasters, cyber attacks, or if the prevention of performance is otherwise based on a government order resulting in a disruption of performance. Force majeure shall also include impediments to performance due to shortages of raw materials and/or government measures based on shortages of raw materials and resulting general disruptions to performance (including in supply chains).

3. The party invoking the existence of force majeure shall

- inform the other party without undue delay in text form about the fact, the reasons for it, and the effects;

- exercise the diligence of a prudent businessperson to take the measures necessary to be able to resume full performance of its obligations as soon as possible;

- make reasonable efforts to minimize the negative impact on the performance of the agreement to the extent possible.

16. Protection of Employees

1. For the performance of the agreement, we will engage employees (employees within the meaning of the law) who are essential for our commercial activities due to their qualifications, experience and training (including through appropriate training by us). The employment relationships with these employees are of essential value to our business operations, especially in view of the fact that the employees required to fulfill this and any other agreements with the Customer may be difficult to replace. 

2. For this reason, the Customer undertakes, during the term of this agreement and for the subsequent two years, not to solicit or cause to be solicited, for its own or third-party purposes, any employees of our company of whom the Customer has gained knowledge in connection with the performance of this contract, particularly because they were deployed to fulfill the contract with the Customer's knowledge. This shall not apply to employees whose employment contract with us had already been terminated at the time of solicitation, as well as to employees who have performed only subordinate tasks without any special qualification requirements. Solicitation shall be deemed to include, in particular, any attempt to induce an employee to terminate their employment with us or to attempt to do so, or to offer employment to, procure employment for, or employ an employee. Solicitation shall not be deemed to include, in particular, an unsolicited application by an employee on their own initiative in response to a general job advertisement by the Customer or a third party.

3. For each breach of this obligation, the Customer shall pay us a contractual penalty, the amount of which shall be determined at our reasonable discretion, subject to judicial review in the event of a dispute, and shall be credited against any claims for damages we may have.

17. Privacy

In the event that the Customer engages the us to process personal data falling within the ambit of Article 28 GDPR, we hereby expresses our willingness to enter into a standard data processing agreement in accordance with the provisions set forth in Article 28. Otherwise, we undertake to comply with all applicable statutory requirements pertaining to the processing of any personal data provided by the Customer to us.

18. Set-off and Retention Rights, Assignment

1. The Customer shall only be entitled to set off claims that are undisputed or have been legally established with final and binding effect. The Customer shall only be entitled to exercise rights of retention with respect to claims that are undisputed or have been legally established with final and binding effect arising from the same legal relationship.

2. The assignment of claims against us shall be excluded. This shall not apply within the scope of application of Section 354a of the German Commercial Code (HGB).

19. Public Relations

We shall be entitled to refer to our activities for the customer and the results of the services provided for the customer in a customary and reasonable manner and to use this information for the purposes of self-promotion. Any confidentiality agreement that may have been concluded shall remain unaffected by this.

20. Final Provisions

1. A contracting party shall only be entitled to exercise a right of retention or to set off to the extent that the underlying counterclaim has been legally established or is not disputed.

2. This agreement contains all agreements between the parties regarding the subject matter of the agreement. Any deviating collateral agreements and prior agreements regarding the subject matter of the agreement shall hereby become ineffective.

3. Amendments and supplements to this agreement must be made in writing, unless a stricter form is prescribed by law. To comply with this written form requirement, signing by means of a simple electronic signature within the meaning of Art. 3 No. 10 of the eIDAS Regulation (EU No. 910/2014) generated in DocuSign, comparable software, or a comparable procedure, as well as PDF scans of handwritten signed documents shall also be sufficient. A declaration by email alone shall not be sufficient. This shall also apply to the revocation of the written form agreement.

4. Should any provision of this agreement be or become wholly or partially void, invalid, or unenforceable, or should a necessary provision not be included, the validity and enforceability of all other provisions of this agreement shall remain unaffected. It is the express will of the parties that this severability clause shall not merely result in a reversal of the burden of proof but that Section 139 of the German Civil Code (BGB) shall be waived in its entirety.

5. The agreement shall be governed solely by the laws of the Federal Republic of Germany. Private international law, such as the United Nations Convention on Contracts for the International Sale of Goods (CISG), shall not apply to the extent that it can be excluded.

6. The exclusive place of jurisdiction for all disputes in connection with this agreement shall be at our registered office.

7. Only the German version of this agreement shall be binding. The translation in the English language is provided for information purposes only and shall not be referred to for interpreting the German version.