§ 1 General

These terms and conditions shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law. They shall apply not only to the contractual relationship into which they have been incorporated, but also to all future business relationships if we do not refer to any other terms and conditions.

Deviating, conflicting or supplementary terms and conditions of the customer shall not become part of the contract, even if we are aware of them, unless we expressly agree to their validity. These terms and conditions shall also apply if we perform the service to the customer without reservation in the knowledge of terms and conditions of the customer that are contrary to or deviate from our terms and conditions or additional terms and conditions.

§ 2 Conclusion of contract

Our offers are subject to change. By accepting an offer, the customer makes a binding declaration that he wishes to order the services indicated. We shall be entitled to accept the contract offer submitted with the customer’s order within one week of receipt. The acceptance can be declared either expressly or by the beginning of the processing of the order.

Insofar as services of third parties are the subject matter of the order, these are subject to the reservation of self-delivery. If the services are not available for reasons which were not foreseeable for us at the time of conclusion of the contract, or if we are not supplied by a supplier through no fault of our own, we shall have the right to withdraw from the contract in this respect.

Only the specifications in our offer and any attachments thereto shall be deemed agreed as the quality of our performance. Any public statements, recommendations or advertisements deviating therefrom shall not constitute a contractual statement of the quality of the performance.

§ 3 Dates

Stated delivery or performance dates are non-binding unless they are expressly designated by us as binding. If there is a risk that agreed deadlines will not be met, we will inform the customer of this without delay, stating the reasons and the possible duration of the delay.

§ 4 Optimization of web pages and advertising measures, consultation

For services with the aim of improving the placement of a website in search engines or the optimization of 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 a 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 due to reweighting or changes in ranking factors. For our activities, we will accordingly take into account the factors known to us for the weighting of search results or display of advertising, but we cannot exclude the possibility that a change in ranking factors at any time may result in a change in placement.

Unless otherwise agreed, contracts pursuant to paragraph 1 have a minimum term of 12 months. They shall be extended by a further 12 months in each case if the contract is not terminated with 3 months’ notice to the end of the contract term. Otherwise, the right of termination is excluded. The right of termination 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, the delivery shall be based on this specification. Otherwise, depending on the order, a list of requirements for the software that we deem sufficient shall be prepared against payment or we shall prepare the software in the system described in paragraph 2. Upon acceptance of the list of requirements by the customer, it shall be a binding specification for our further services. It may be adjusted at any time during the course of the cooperation between the parties by joint agreement. If no remuneration has been agreed for the creation of the list of requirements, the hourly rates agreed for the creation of the software shall apply.

If the software is not to be created on the basis of a list of requirements, the development shall be carried out according to the agile development model Scrum. 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, the different uses of the software by the later users or other requirements. The sum of the initial user stories forms the so-called backlog, which is managed by us. From the backlog, the project managers then select a certain number of thematically related user stories, which are to be implemented in software in a first so-called sprint. Upon completion of the sprint, we present the software created to the customer to check whether the goals of the sprint have been achieved. In case of non-achievement, the project managers will determine the measures to be implemented in order to achieve the goals. If the goals are achieved, they will determine which user stories should be implemented in the next sprint. If one party discovers open issues during the implementation of a sprint or has a need for coordination with the other party, the project managers will immediately coordinate accordingly. The implementation of the further sprints is carried out as agreed above. This system will be maintained until the development of the software has been completed. Insofar as services have been accepted as part of the testing of a sprint, the final acceptance for these services can only be refused if new defects occur during the acceptance test.

The customer may request changes and additions to the service at any time up to acceptance of the software if these are technically feasible and reasonable for us. We will examine 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. During an ongoing service change procedure, we shall continue the services ordered to date as scheduled, unless the customer instructs us in writing that the work is to be discontinued or restricted until a decision is made on the service change.

Unless otherwise agreed, we shall owe the development of software in accordance with the state of the art customary for such software.

Unless otherwise agreed, we are free to decide on the development environment to be used as well as on the use of libraries, frameworks, etc., as long as their delivery is owed from the order or they can be obtained by the customer free of charge and under usual conditions. The Customer shall be informed at the acceptance date which libraries etc. were used for the creation of the software, what is required for the executable compilation and where the programs, frameworks etc. required for this can be obtained for download.

§ 6 Installation and acceptance of software

The installation of the software for acceptance, as well as its parameterization, is the responsibility of the customer, unless otherwise agreed. The import of data into the software supplied by us shall only be carried out by us with a corresponding express agreement.

Upon installation of the software, the parties shall conduct an acceptance test for the same. The customer is not entitled to use the software productively for the purposes of acceptance. Tacit acceptance shall be deemed to have been declared if the customer does not make a corresponding declaration in response to our written request to declare acceptance within a period of at least two weeks after receipt of the request or to give notice of defects preventing acceptance.

If the parties carry out partial acceptances 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 the software for the purposes stipulated in the contract. Duplications of the software are only permitted to the extent that this is necessary for the contractual use. Customary backup copies are permitted and shall not be considered as own installation.

The right to process and to transfer or make available the software or the possibilities of using it to third parties (esp. leasing, software as a service) is not transferred; legal claims of the customer remain unaffected.

The customer is only authorized to make changes, extensions and other modifications to the software within the meaning of § 69c No. 2 UrhG (German Copyright Act) if this is absolutely permitted by law. Before the customer removes errors from the software himself or through third parties, he must allow us to remove the error. The customer shall not be entitled to its own rights of use and exploitation of such modifications – beyond the rights of use granted under the contract.

The customer shall only be entitled to decompile the software within the limits of § 69e UrhG (German Copyright Act). He must first give us the opportunity to provide the necessary data and/or information within a reasonable period of time in order to establish interoperability of the software with other hardware and software.

Insofar as the software should include open source software, the respective license provisions shall apply to this.

The customer has no right to be provided with the source code of the software unless this is necessary to achieve the purpose of the contract. This shall not apply to open source software.

Insofar as the customer is granted the right to use the software prior to full payment, this right may be revoked at any time.

§ 8 Open Source Software

The software to be delivered by us may contain open source software. In deviation from the otherwise agreed transfer of rights to the customer, the customer shall acquire rights to open source software in accordance with the license terms applicable to such software.

We shall inform the customer which open source software is used under which license. We shall transfer these to him free of charge by way of a gift in accordance with the provisions of the respective license. Our liability for open source software shall be governed in this respect by Section 521 of the German Civil Code (BGB). The other provisions of this contract concerning liability and defects shall not apply to open source software.

§ 9 Delivery of Documentation

We owe the delivery of a documentation of the software delivered by us only against appropriate remuneration. In the absence of an agreement, the same hourly rates shall apply for the creation of documentation to be delivered as were agreed for its development.

We shall be entitled to provide documentation of the source code directly in it.

§ 10 Partial Deliveries

We are entitled to make partial deliveries if this is reasonable for the customer according to the circumstances recognizable at the time of conclusion of the contract.

§ 11 Obligations of the customer

The customer undertakes to support our activities to the extent required. In particular, he shall provide, free of charge, all technical, personnel and spatial conditions incumbent upon him which are necessary for the proper performance of the contract. At our request, he shall provide us with all data and information from his sphere which we require from him for the purpose of the contract. During the term of the contract, the customer shall appoint an informed and competent contact person.

Any agreed due dates and periods shall be extended by the time during which the customer, despite a reminder, delays an act of cooperation incumbent upon him or is otherwise responsible for the impediment and this impedes our performance of the service. A reminder shall not be required if we have already set a reasonable deadline when requesting cooperation or if a delivery date has been agreed.

The customer shall inform us without delay of any disruptions or defects in our performance and in this context shall describe the disruption or defect as precisely as possible, giving the information known to it and relevant to it. Insofar as the customer is not reasonably able to provide us with this information, this shall be irrelevant to our obligation to perform.

The customer guarantees that he has the necessary rights to all data, information, documents, graphics, etc. handed over to us and that their use in accordance with the contract does not conflict with any rights of third parties or laws. He shall indemnify us against all claims of third parties which they assert against us due to a violation of sentence 1.

The customer is obligated to create a current back-up of his systems before granting us access to them. He shall inform us in text form against confirmation if no back-up of his data is available. This shall not apply if we have been commissioned with the data backup.

§ 12 Remuneration

The fees agreed with the customer shall apply to our services. If no fee has been agreed with the customer for a service, our current price list shall apply; alternatively, a customary fee shall be deemed to have been agreed.

All prices quoted by us are net prices and are in euros. If we render our services abroad on the basis of the agreement with the customer, the customer shall bear all taxes, customs duties or other charges incurred abroad. In this respect, the customer undertakes to provide us with all necessary tax certificates, tax assessments and all other documents required by us in order to meet their tax obligations abroad and in Germany.

Purchase prices are due upon conclusion of the contract. In the case of contracts for work and services, we shall be entitled to demand advance payments amounting to 50% of the agreed remuneration. For contracts for work and services, the due date of further advance payments shall be governed by the provisions of Section 632a of the German Civil Code (BGB). The following provisions shall apply to the invoicing of further fees.

If invoicing has been agreed on the basis of time spent, our services shall be invoiced monthly in arrears on the basis of hours actually worked in units of 6 minutes. The corresponding invoices shall be accompanied by a time estimate showing the services billed. Any objections to the time schedule must be raised within four weeks of receipt, otherwise they shall be deemed to be approved and correct.

Agreed lump sums shall be invoiced in advance in each case.

Activities during nighttime from 18:00 to 09:00 as well as on weekends and holidays at our headquarters require a separate agreement. For work performed at night, the agreed hourly rates shall be increased by 50%. For work at weekends and on public holidays, the agreed hourly rates shall be increased by 100 % and for work between 6:00 p.m. and 9:00 a.m. on these days by 150 %.

Travel time will be billed at the agreed rates if we do not use the travel time for other billable services. Travel costs, costs for accommodation as well as other expenses will be invoiced additionally against proof. Travel by car will be charged at 0.50 Euro net/km. No travel expenses will be charged for travel within 10 km from our registered office.

In the event of termination of a contract for work and services by the customer, we shall be entitled to full remuneration for services already rendered. For services not yet rendered, we are entitled to 30% of the outstanding remuneration. The customer reserves the right to prove that the share to which we are entitled in accordance with § 648 BGB is lower than the above-mentioned percentage. We reserve the right to prove that the share to which we are entitled pursuant to § 648 BGB is higher than the aforementioned percentage.

Payments may be offset against the oldest invoice due, even if the customer has stipulated repayment to the contrary.

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 breach of material contractual obligations due to simple negligence, the amount of liability shall be limited to foreseeable and contract-typical damages. Essential contractual obligations are those whose fulfillment 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 shall not apply to claims arising from injury to body, health or life, in the event of fraudulent action, in the event of the assumption of a guarantee and for claims under the Product Liability Act.

In all other respects, liability – on whatever legal grounds – shall be excluded.

§ 14 Claims for defects

Insofar as the customer is entitled to claims for defects, we shall be entitled to choose the type of subsequent performance within the statutory limits.

The limitation period for claims based on defects shall be one year. This period shall not apply to claims for damages due to the infringement of claims for defects; in this respect, the regulations on liability shall apply.

If the customer complains about the existence of defects and if, as a result of our resulting activity, it turns out that there was no defect, we shall be entitled to invoice our corresponding expenditure according to the agreed hourly rates or, in the absence of an agreement, according to our general hourly rates.

§ 15 Offsetting and retention rights, assignment

The customer shall only be entitled to set-off with undisputed or legally established claims. The customer shall only be entitled to exercise rights of retention with undisputed or legally established claims from the same legal relationship.

§ 16. data protection

If the customer commissions us with the processing of personal data which is subject to Art. 28 DSGVO, we are prepared to conclude a customary contract on commissioned processing. In all other respects, we undertake to comply with the existing statutory provisions with regard to personal data which the customer entrusts to us for processing.

§ 17. export regulations

For our services, the customer is obliged to observe the export restrictions of national as well as international law, in particular EU and US law. Upon request, we shall provide the customer with information about the goods and services that are subject to export restrictions.

We are not obligated to ship goods or provide services to locations subject to export restrictions.

§ 18. naming as reference customer

We are entitled to use the name of the customer as well as the logo used for his company name, stating the services rendered for the customer, as a customer reference in our advertising. This shall be done exclusively in a customary manner that is reasonable for the customer.

§ 19 Force majeure

Each party shall be temporarily released from its obligation to perform as long as it is prevented from performing the service due to force majeure. This shall also apply in the event that the party is already in default.

Force majeure shall be corresponding events within the meaning of § 206 BGB (German Civil Code) as well as any other unusual and unforeseen event, if the party invoking such event did not cause the event, could not expect the event, could not influence its occurrence, could not prevent its consequence despite exercising due care and is prevented from rendering performance for the reason. This applies in particular to war, terrorism, riots, pandemics, storms, environmental disasters or if the prevention of performance is otherwise based on government order.

The party claiming the existence of force majeure shall inform the other party

inform the other party immediately in text form of the fact and the reasons for it;

with the diligence of a prudent businessman, take the measures necessary to resume full performance of its obligations as soon as possible;

to make reasonable efforts to minimize, as far as possible, the negative impact on the performance of this Agreement.

§ 20. Final Provisions

This Agreement contains all agreements of the Parties relating to the subject matter of this Agreement. Any deviating collateral agreements and earlier agreements on the subject matter of the contract are hereby rendered ineffective.

Amendments and supplements to this contract must be made in writing, unless a stricter form is prescribed by law. This shall also apply to any waiver of the formal requirement.

Other general terms and conditions of the parties shall not apply to this contract. This shall also apply if reference was made to their inclusion in later documents in connection with this contract (e.g. call-off of services) without objection.

Should any provision of this Agreement be or become void, invalid or unenforceable, in whole or in part, or should any provision which is necessary in itself not be included, the validity and enforceability of all other provisions of this Agreement shall remain unaffected.

The contract shall be governed solely by the laws of the Federal Republic of Germany. Private international law shall not apply insofar as it can be waived.

The sole place of jurisdiction for all disputes in connection with this agreement shall be at our registered office. We shall also be entitled to assert claims against the customer at one of his legal places of jurisdiction.