General
Terms and Conditions
§1 General and scope
(1) These Terms and Conditions shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB), collectively and hereinafter referred to as "Customers". The following terms and conditions shall apply exclusively to all legal transactions with the aforementioned customers. We shall only recognize terms and conditions of the customer that conflict with or deviate from our terms and conditions if we expressly agree to their validity in writing.
2. all our products, whether tangible or non-tangible, such as software or programs provided electronically, are goods in the legal sense.
The customer is obligated to comply with the manufacturer's usage or copyright provisions in addition to our contractual provisions if, for example, we supply purchased software.
§2 Offers/Cost Estimates, Conclusion of Contract
1. our offers and cost estimates are subject to change and non-binding.
2. offers from customers*customers shall only be deemed to have been accepted when we have confirmed them in writing or have executed the order.
Our customers undertake to carefully check the accuracy of our offers. This applies in particular to offers for which we have calculated the price on the basis of information provided by the customer, e.g. a specification sheet.
4 All data in brochures, flyers, brochures or in our offers are exclusively convergence values and may not always correspond to the latest technical standards. During the execution of the work, we are entitled to exchange or change special sections within our services, provided that the customer*client no disadvantages of the functions result.
5. we reserve the right to subcontract.
§3 Handed over documents
We reserve all copyrights and proprietary rights to the documents provided to the customer. These are in particular offers, price calculations, lists with technical details, drawings, specifications prepared by us, requirement specifications or other elaborations, in any format, i.e. also data transmitted electronically. At our request, these must be returned or deleted or destroyed. Any transfer or disclosure of the aforementioned documents etc. to third parties is expressly prohibited.
§4 Terms of payment and prices
1. all prices stated in brochures, flyers, leaflets, offers, invoices or other information material or documents are net prices plus the statutory value-added tax applicable on the date of delivery.
All prices are quoted in EURO, plus any packaging and shipping costs. Insofar as customs duties, fees, other charges or the artists' social insurance are incurred, these shall be borne by the customer, also in the event of subsequent collection.
Unless otherwise agreed in writing, our invoices are due 14 days after the date of issue without deduction.
In the event of default of acceptance on the part of the customer, our claims shall become due irrespective of the fact that delivery has not yet taken place.
5. services or goods not specified in the offer or in the cost estimate but performed or delivered on subsequent order shall generally be charged additionally.
Offsetting, reduction or retention on the part of the customer is only permissible if the claims have been legally established or are not disputed by us.
7. we reserve the right to change prices due to higher labor or material costs for deliveries that take place 3 months or longer after the contract or order date.
If a customer terminates a contract for work and services before we have been able to commence performance, we reserve the right to claim a reasonable lump-sum payment.
§5 Performance and delivery periods
1. our delivery dates and deadlines are generally non-binding and subject to change. We reserve the right to deliver later should we ourselves not have been supplied in time to meet the specified date.
2. we shall not be responsible for delays in performance and delivery if these occur due to force majeure or unforeseen events which make performance or delivery significantly more difficult or impossible, e.g. natural disasters, accidents, war, terror, shortage of energy or raw materials, other difficulties in procuring materials, traffic or operational disruptions, labor disputes, official orders and measures, even if these occur at our upstream suppliers*.
We reserve the right to postpone performance or delivery for the duration of the hindrance or, if necessary, to withdraw from the contract altogether due to the above-mentioned hindrances.
If the customer is in default with his/her obligation to cooperate, the service or delivery shall also be extended by the corresponding period.
§6 Retention of title
(1) We reserve title to the delivered item until full payment of all claims arising from the business relationship. This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer behaves in breach of contract.
The customer is obligated, as long as the ownership has not yet passed to him, to treat the purchased item with care. In particular, he/she shall be obliged to insure it adequately at its replacement value against theft, fire and water damage at his/her own expense. If maintenance and inspection work has to be carried out, the Customer shall carry this out in good time at its own expense. As long as ownership has not yet passed to the customer, the customer must notify us immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is not in a position to reimburse us for the court and out-of-court costs of a lawsuit pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us.
The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns to us the claims against the buyer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply regardless of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the customer's expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and keeps the sole ownership or co-ownership thus created for us. In order to secure our claims against the customer, the customer also assigns to us such claims against a third party that accrue to him through the combination of the goods subject to retention of title with real estate; we accept this assignment already now.
We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 10%.
§7 Rights of use
1. rights of use in the sense of these general terms and conditions refer in particular to the right to use software, homepages, e-mail services, content service in the area of newsletters, posts on internet portals and storage space on our servers.
2. the right of use shall not pass to the customer until payment has been made in full.
3. the right of use is unlimited in time, unless it is limited by individual agreements, such as homepages for rent, but not exclusively. The customer shall be entitled to make a backup copy, which must be designated as such and must identify the author. The customer is not permitted to grant sublicenses, make copies (with the exception of the backup copy) or pass the software on to unauthorized third parties. In the event of a sale to third parties, the customer shall lose his/her right of use, which shall then pass to the purchaser of the software in accordance with the provisions set forth herein.
(4) Unless expressly permitted by law, the Customer shall not reverse engineer (reconstruct software), disassemble (analyze functions) or decompile (restore source code from the compiled file) the software or have it done by third parties.
5. in the case of the provision of copyright-protected services such as graphics, layouts, homepages or their drafts, specifications, requirements specifications or other creative services such as texts, language contributions, etc., these services may only be used after full payment and only for the purpose ordered. Unless otherwise agreed, the license of use is limited exclusively to the purpose ordered. Further use is only permitted if this has been agreed in advance by means of a written agreement or a written license.
§8 Prohibition of assignment
An assignment of claims existing against us to third parties is excluded, unless we expressly consent to the assignment in writing. Such consent shall then only apply to the respective individual case.
§9 Transfer of risk
(1) Risks shall pass to the customer for all deliveries as follows: In the case of delivery without on-site commissioning at the customer's premises, risks shall pass to the customer as soon as they have been dispatched or collected, even if we undertake the dispatch ourselves. Our goods are generally only insured for transport at the express request and expense of the customer. In the case of deliveries with on-site commissioning, risks shall pass to the customer upon handover or acceptance.
If delays occur for reasons for which the Customer is responsible, e.g. during shipping, delivery, or due to a lack of information that delays the start of work on the project, and if the Customer is in default of acceptance, the associated risks shall pass to the Customer from the moment of the delay.
3. refusal of acceptance for trivial reasons or in the case of null and void defects is not permissible.
4. we reserve the right to send only partial deliveries.
5. we do not guarantee the cheapest shipping method.
§10 Default of acceptance, default of payment
In the event of a delay in acceptance on the part of the customer, we reserve the right to store the goods in any warehouse at the expense and risk of the customer for the duration of the resulting delay.
If the customer is in default of acceptance, we shall set a reasonable deadline for acceptance in writing. If the customer fails to accept the goods within this period, we may, at our discretion, withdraw from the contract instead of demanding performance of the contract. In this case, we shall be entitled to claim damages for non-performance or a lump-sum compensation amounting to 25% of the order value. In the event of liquidated damages, both the customer and we shall be entitled to prove that the damages were significantly higher or lower or to prove that no damages were incurred at all. The right to liquidated damages shall also apply in the event of insolvency if the insolvency administrator exercises the right of non-performance of the contract.
In case of default of payment by the customer, we reserve the right to withdraw from the contract and to claim damages if the customer does not pay within the payment period set therein after a reminder has been sent. In this case, the customer must immediately return to us all goods delivered under this contract. In addition, the rights of use specified in § 7 of these GTC shall not pass to the Customer*. Rights already granted for use must be returned immediately or, in the case of e.g. transferred software, deleted from all data carriers.
§11 Cooperation and Duties of the Customer*Customer
(1) The customer must fulfill various obligations to cooperate in the performance of the contract. These are either listed below or agreed separately. If these obligations are not fulfilled, no liability for delays or additional costs can be assumed.
2) For each project, the customer appoints a specific contact person who is available to us in case of queries or problems.
The Customer shall provide employees or skilled workers in good time, in sufficient quantity and with the appropriate qualifications, who shall provide the necessary aids, documents, information and information, e.g. about the required access data, in a reasonable period of time.
(4) The Customer shall provide us in good time, in sufficient quantity and with the appropriate equipment or technical characteristics with the working materials that we need to fulfill our contractual obligations. This includes, among other things, the power supply, access to the products, space for equipment and work materials for our technicians.
(5) The Customer shall name one or more employees authorized to call for services. If the Customer does not name any employees authorized to call for services, it shall be assumed that all employees of the Customer are authorized to call for services.
The customer undertakes to ensure that all occupational health and safety regulations are complied with when working on site.
The Customer undertakes to create external or online backups of its data at reasonable intervals, but at least once a day, so that this data can be restored in an emergency.
The customer is responsible for his own system maintenance unless he instructs us to do so separately. No liability can be accepted in the event of insufficient maintenance work or repairs carried out too late.
The customer is responsible for the legality and for compliance with the regulations regarding workplace equipment and occupational safety. If regulations are not observed, no liability can be assumed.
(10) We shall be granted all rights to use the software provided to us by the customer within the framework of a contract for the fulfillment of our contractual conditions, insofar as this is necessary and contractually agreed.
The customer undertakes to request from the manufacturer the disclosure of all interfaces required by us for the fulfillment of our contractual conditions and to make them available to us.
We do not check within our services whether the systems used are properly licensed, in particular whether all server licenses, client licenses, client access licenses, user licenses, etc. are available. The customer is solely responsible for the proper licensing of his systems, unless otherwise agreed in writing.
(13) The customer warrants that all data, documents, images, lettering, layouts, etc. provided by him/her for order processing are free of third-party rights and can be freely used by us in the course of order processing. The customer shall indemnify us in this respect against any liability and any damages to third parties.
(14) If the customer fails to fulfill its obligations to cooperate, or fulfills them late or improperly, the agreed performance and delivery periods shall be extended by a reasonable period of time. All of our contractual performance obligations that require the customer's duty to cooperate shall be suspended during this period, and we shall not be in default.
(15) Duties to cooperate are primary obligations. Costs, expenses, other disadvantages and also damages resulting from non-compliance with these clauses and/or from the customer's obligations to cooperate specified in other contracts shall be borne by the customer.
In particular in the area of software development, the development of a website, etc., the Customer shall draw up a specification sheet. The specifications must contain a detailed, concrete and comprehensive list of all the functions required by the Customer*. In addition, the Customer shall name a permanent contact person for the respective project and ensure that this person can always be reached at short notice during normal operating hours.
(17) In the case of agile development methods such as Scrum or Kanban, the Customer shall provide detailed, specific and comprehensive information and, in particular, shall name a permanent contact person for the respective project and ensure that this person can be reached at all times and at short notice during normal operating hours.
In agile development methods, the services are redefined from sprint to sprint and may deviate from the requirements specification. When switching to agile development methods, the requirements specification is no longer the basis for the services to be provided under the contract. The agreed project budget is then used to process the respective sprints, whereby it is not promised or agreed that the originally determined budget is sufficient, all desired functions that result from the conversion to the agile development method or are then desired by the customer can be implemented and realized. The originally agreed success is then no longer owed. Each individual implementation of the services and functions requested by the customer within a sprint is approved separately after each sprint.
(19) The Customer undertakes to provide sufficient test data to enable us to carry out continuous functional tests, etc., in particular during the processing and creation of software or a homepage.
§12 Warranty
(1) The Customer shall notify us in writing of any defects discovered without undue delay within the meaning of Section 377 of the German Commercial Code (HGB) upon receipt or handover or delivery or upon discovery of the defects.
According to the current state of the art, errors in software cannot be excluded. This circumstance will be pointed out to the customer. If errors occur, updates will be necessary to eliminate them. An appropriate implementation time is necessary for these, which the customer must accept in the event of a defect.
In the case of defects, we are entitled to choose whether we fulfill the supplementary performance by rectifying the defect or by subsequent delivery. The customer shall only have the right to withdraw from the contract if we do not respond within 4 weeks after notification of the defects or if the attempts at subsequent performance have failed three times in succession.
4. the customer must describe any errors in detail and, if necessary, ask for help by telephone.
5. defects must be reported in writing.
Defects shall not apply in the event of subsequent modification of the products for which the customer is responsible, improper use, normal wear and tear, failure of the components of the system environment, operator errors, insufficient maintenance, installation of third-party products or use contrary to the manufacturer's guidelines.
(7) Claims of the customer for material defects shall become statute-barred one year after handover/delivery of the item to the customer. Excluded from this are claims for damages due to injury to life, body or health and/or claims for damages due to damage caused by gross negligence or intent. In this respect, the statutory limitation periods shall apply.
8. we do not provide warranty, unless it was agreed separately and in writing.
9. statements in the public context, e.g. advertising statements by suppliers, manufacturers or other third parties, do not constitute a contractually agreed property.
§13 Liability/Limitation of Liability
1. we are only liable for damages caused by us intentionally or by gross negligence or for injuries to life, body and health. In addition, we are liable within the meaning of the Product Liability Act, insofar as this provides for mandatory liability.
We shall not be liable for simple negligence on the part of our executive bodies, authorized representatives, employees and vicarious agents.
The limitations of liability shall also apply to the personal liability of our executive bodies, authorized representatives, employees and vicarious agents.
4. we assume no liability for data loss during repair attempts.
5. liability in connection with data loss due to e.g. encryption or other Trojans, viruses, malware, other malicious programs, phishing or system crashes is excluded, unless there is a deviating written agreement.
(6) If IT systems, e.g. servers, telephone systems, individual PCs or workstations or even the entire system, have to be switched off for maintenance or repair reasons during the customer's working hours or if the reasons lead to impairments, we shall not assume any liability for the corresponding downtimes of the customer.
We are not entitled to provide legal advice or tax advice. In the event that we draw the customer's attention to legal or tax issues and these issues are not examined by a lawyer or tax advisor, we assume no liability for the compatibility of software etc. created by us in this regard with legal or tax law or other statutory requirements. The customer exempts us from any liability and any compensation in this regard.
(8) In the case of second-hand purchases, we exclude all rights of the customer due to material defects. However, this does not apply to claims for damages, fraudulent concealment of defects or in the case of guarantees given by us.
(9) For all goods and contractual items for which we are not the manufacturer, we shall assign to the customer any claims for defects against the manufacturer or our suppliers.
(10) It is possible to agree on a special contractual arrangement regarding our response time. Response time means the period - during our business hours - from the written confirmation of receipt of the customer's problem report by one of our employees to the start of troubleshooting by one of our technicians. Unless special agreements have been made in writing, we do not promise a binding response time.
§14 Cooperation of the customer in the event of defects
The customer undertakes to provide the necessary information, e.g. from error diagnoses, independently and in as much detail as possible for all subsequent improvements.
(2) The customer undertakes to provide a suitably qualified employee or skilled worker to assist and cooperate in the rectification of defects via electronic data transmission systems or telephone.
The customer undertakes to grant us unhindered access to the defective goods in the event of on-site repairs and, if necessary, to stop work on or with the goods in order to be able to carry out the repairs.
(4) The customer undertakes to reimburse us for any costs incurred if it subsequently transpires that we are not responsible for the defect but that the defect was caused, for example, by the non-existence of a defect, user error or improper use of the goods.
§15 Final provisions
(1) The rights and laws of the Federal Republic of Germany shall apply exclusively to our General Terms and Conditions and to all legal relationships with our contractual partners.
The place of jurisdiction for all current and arising disputes is Ulm. However, we reserve the right to sue our contractual partner at another legal place of jurisdiction in the event of any disputes arising.
The place of performance for all contracts with merchants shall be our registered office in Ulm, unless otherwise agreed by contract or in the order confirmation.
4. the contractual language is German.
All contractual agreements shall be recorded in writing. The requirement of the written form shall also apply to supplements, amendments or subsidiary agreements as well as to the amendment of the requirement of the written form itself.
6. the validity of the remaining contractual clauses is not affected, even if one or more clauses in these, our general terms and conditions become ineffective.