Terms and Conditions
§1 General, Scope of Application
(1) Our general terms and conditions apply exclusively. They apply to all our offers, deliveries and services. Insofar as the customer had no opportunity to take note of them at the time of conclusion of the contract, they shall nevertheless apply if the customer knew or should have known the general terms and conditions from previous business transactions.
(2) Conflicting general terms and conditions of the customer that deviate from our general terms and conditions shall not apply. If we carry out the delivery or service incumbent upon us with knowledge of such general terms and conditions of the customer, we do not thereby recognize such conditions of the customer to which the present general terms and conditions do not contradict.
(3) Our general terms and conditions apply only to companies, not to consumers.
§2 Offer, Conclusion of Contract, Information
(1) The presentation of the offer on the website is only an invitation to the customer to submit an offer. They contain only a general presentation of possible service contents and are not binding for contracts.
(2) The contract content results from our offer. Here the individual services are listed, if applicable also by reference to a specification sheet. Services not listed do not become part of the contract.
(3) Deviating from § 312 g para. 1 no. 1 to 3 BGB, the customer has no claim to the provision of technical means for correcting his order, separate information on the technical steps for concluding the contract, information on the storage of the contract, the available languages and codes of conduct as well as immediate confirmation of his order.
§3 Contract Content, Services
(1) We create the contractual services for the customer compatible with the current versions of the five essential browsers: Chrome, Firefox, Safari, Microsoft Edge, Internet Explorer 11 (under Microsoft Windows 11), Opera. Due to the variety of different representations in the various browsers and systems, exact correspondence of representation and functionality can only be guaranteed with unreasonable effort. Insofar as this does not result in a significant deterioration of the functionality of the website, no defect arises from such deviations. If the customer wishes optimization, this can be booked for a fee.
(2) For older and future browser versions as well as future WordPress, plugin or other third-party software versions used, perfect functionality cannot be guaranteed. If optimization for these versions is desired, this can be booked for a fee.
(3) Insofar as contributions through open source software, third-party programs or other third-party services (other programmers, graphic designers, etc.) are required for the project, the customer must provide these at his own expense with all necessary rights (including any editing rights) in a quantity and quality suitable for the project. The same applies to the hardware to be provided by the customer.
(4) Costs for third-party software products required for the realization of the project are, unless otherwise agreed, not included in the price. Functionalities can only be granted within the framework of the requirements of the third-party software product.
(5) In case of unforeseen difficulties caused by third parties (hardware, provider, external software or plugin provider, etc.) that lead to additional work, the customer is obligated to pay the additional effort by hours based on the contractually agreed or locally customary, reasonable remuneration.
(6) The customer is advised that content originating from third parties (especially programs, photos, texts, plans, graphics, maps, sound recordings, videos, animations and drawings) may be protected by copyright. If the customer provides such materials, the customer must ensure that he has acquired all necessary rights, possibly for a fee. Research on our part regarding conflicting trademark, copyright or other industrial property rights is not the subject of the contract and can only be carried out by a lawyer.
(7) We are entitled at our discretion to perform the service ourselves or to have it performed by knowledgeable third parties as subcontractors.
§4 Prices, Payment Terms, Set-off, Retention
(1) All prices for companies are net prices plus the applicable statutory value-added tax, insofar as this is incurred and nothing else is agreed.
(2) We are entitled to demand a reasonable down payment upon order placement. We are further entitled to demand reasonable partial payments for project parts already delivered to the customer and to issue partial invoices according to project progress.
(3) The contractual remuneration applies only insofar as contractual services are also agreed. Additional services are to be remunerated according to the contractual rates corresponding to the offer, alternatively according to the locally customary, reasonable remuneration. Accompanying services such as user introductions, documentation, training, support or similar are not included in the order by default, but are only part of the contract if this has been expressly agreed.
(4) Payment by the customer is due immediately. The customer is advised that he falls into default at the latest 30 days after receipt of the invoice. If the customer is in default with payment, he is obligated according to § 288 BGB to pay default interest and the flat-rate damages regulated there.
(5) The customer may only set off if his counterclaims are legally established, undisputed or recognized by the contractor or the right of set-off is based on rights of the customer due to incomplete or defective performance from the same contractual relationship.
(6) We are entitled to exercise a right of retention for all claims from the business relationship with the customer.
§5 Performance Time
(1) The beginning of any specified performance time presupposes the clarification of all technical, legal and design questions and the timely and proper fulfillment of the customer's obligations. The defense of non-performance of the contract remains reserved for us.
(2) Force majeure or operational disruptions occurring at our premises or those of our subcontractors, e.g. due to riots, strikes, lockouts, which temporarily prevent the contractor from delivering the service at a possibly agreed date or within a possibly agreed period without our fault, change the performance times by the duration of the performance disruption caused by the circumstances. If a corresponding disruption leads to a performance postponement of more than one month or if the customer's interest in contract fulfillment objectively disappears beforehand, the customer is entitled to withdraw from the contract.
§6 Endangerment of Performance, Insolvency
(1) If it becomes apparent to us after conclusion of the contract that the (further) fulfillment of the contract is endangered by the customer's lack of performance capability, we are entitled to refuse the provision of advance services from this contract until the corresponding counter-performance is provided by the customer or security is provided for it.
(2) We are entitled to withdraw from the contract or terminate it without notice if the customer does not comply with the provision of the corresponding counter-performance step by step or the provision of security despite a reasonable grace period.
(3) If the customer is unable to pay or over-indebted, if the opening of insolvency or composition proceedings is applied for over his assets or such proceedings are opened, we are entitled to withdraw from the contract or terminate without notice without setting a grace period.
(4) If we terminate or withdraw according to paragraph 2 or 3, we can demand damages instead of performance or reimbursement of expenses from the customer.
§7 Customer's Cooperation Obligations, Liability
(1) The customer ensures that we have a contact person for all project-relevant questions during the project duration during normal working hours, who has the authority to commission additional services within the project for a fee with effect for the customer.
(2) The customer is obligated to provide us with all necessary information and data (e.g. hardware and software environment with all necessary parameters) in a timely manner.
(3) If hardware, software, data, interfaces and other contributions are not available on time and completely, we are entitled not to begin with the service according to § 4 para. 1 of these conditions or to work provisionally. The subsequent adaptation to the belatedly delivered contributions counts as a change to the order and is to be remunerated additionally according to the contractually agreed, alternatively the locally customary, reasonable remuneration.
(4) The customer is obligated to hand over necessary hardware and software as well as other contributions in a common, directly usable digital format. The customer ensures that the necessary usage rights are granted, especially reproduction, distribution and processing rights to the extent necessary for the realization of the project and the work of the contractor. The review of legal permissibility with regard to intellectual property and copyright law can only be carried out by a lawyer and is not the subject of the order.
(5) The customer ensures that the hardware, server and software environment provided by him meets the necessary technical minimum requirements for the project with the software environments to be used.
(6) If the customer provides us with physical or non-physical objects, especially programs or media, which violate the rights of third parties, the customer is obligated to hold the contractor harmless from any claims by third parties upon first request. This includes in particular the costs of legal prosecution.
(7) The customer is obligated to carry out necessary data backups independently as part of self-protection, especially before the start of the order. The contractor's liability for lost data does not exist insofar as it would still be available with proper data backup by the customer.
(8) The customer agrees that we may name the service for the customer as a reference.
(9) The customer is obligated to maintain confidentiality towards third parties regarding remuneration, details of the service description and internal communication.
§8 Customer Default, Acceptance Default, Withdrawal
(1) If the customer does not fulfill one of his cooperation obligations in accordance with the agreement, the resulting consequences, such as additional services and delays, are at the customer's expense. We can charge the customer for the additional effort incurred.
(2) The customer is advised that we work project-based and do not handle more than a certain number of projects simultaneously. If the customer falls into (acceptance) default with his contribution, cooperation or acceptance obligations, we are entitled to postpone the performance time. This applies in particular if this creates a conflict with other projects already scheduled by us.
(3) Should a delay in the realization of the order caused by the customer of more than three weeks arise, the customer is obligated to pay the services provided by us up to that point and to additionally remunerate the additional time required for familiarization on our part when resuming the project according to the contractually agreed, alternatively the locally customary, reasonable remuneration.
(4) If the customer does not fulfill his cooperation obligations, especially from § 7, even after the fruitless expiry of a grace period, we can withdraw from the contract and demand damages instead of performance. This includes in particular the remuneration already earned and the lost profit (or the unearned overhead contribution) minus saved expenses on our part.
(5) If the customer terminates the contract without an important reason, the customer is obligated to pay the agreed remuneration minus what we have saved in expenses and acquire through other use of our labor or maliciously fail to acquire. Due to the project-based scheduling by us, other acquisition may possibly not be realized at short notice. Alternatively, we are entitled to a claim of 5% of the part of the remuneration that applies to the service not yet provided.
§9 Project, Acceptance
(1) The project is produced in project phases. After each project phase, the customer will be requested to accept, after acceptance by the customer the next project phase begins.
(2) We will deliver or demonstrate each (partial) work to the customer and request him after each project phase completed thereby with a deadline of one week (for urgent orders shorter deadlines may be chosen) to accept the partial work or the overall work. If the customer does not express any change requests or reservations within this deadline, the partial work (overall work) is deemed accepted, provided it was acceptable, i.e. no significant defects existed in the partial or overall performance.
(3) The customer is obligated to carry out the acceptance within the deadline of one week after receipt of the acceptance request, insofar as the work is ready for acceptance, or to communicate reservations. If the customer falls into default with this obligation, the regulations of this contract regarding the customer's cooperation obligations and acceptance default apply accordingly.
(4) If the customer does not declare acceptance in time, we will set the customer another deadline for acceptance. We point out that it is equivalent to acceptance and the remuneration becomes due if the customer does not declare acceptance within the deadline or refuses without stating defects. We will also give this notice again when setting the deadline.
§10 Usage Rights
(1) After acceptance and full payment, the customer acquires the simple, non-exclusive usage right to our service. For partial works created before acceptance, all rights remain with us, we are not obligated to hand over drafts created on the computer to the customer.
(2) Insofar as works are used which are used under a CC license or an open source license, these license terms apply. In this respect, deviating from the rights granted in the project order or in the terms and conditions, we only create the prerequisites for the customer to be able to acquire the usage rights to the extent of the respectively applicable open source license conditions from the author/developer of the open source component. A granting of usage rights from us to the customer does not take place in this case.
The customer is advised that the passing on - even within a group - of open source components triggers the obligation to comply with the license conditions of the respectively applicable open source component. This may include the delivery of license texts, copyright and change notices as well as possibly the provision of source codes, insofar as the license conditions of the affected open source component provide for this.
(3) The handover of the source code is only the subject of the contract insofar as this is explicitly agreed.
(4) The customer will name us as the author and provide the copyright notice with a link to our website wherever possible.
§11 Defect Rights, Limitation
(1) If changes are made to the service by the customer, the warranty expires if the customer does not refute a corresponding substantiated claim by the contractor that such a change first caused the defect.
(2) Advertising statements by third parties, especially by manufacturers of the software used by us for the provision of services, are not binding for us.
(3) Insofar as the customer is a merchant, the customer's rights due to defects in the service expire within one year from the handover or acceptance of the service. This also applies to the customer's rights to damages or damages instead of performance, also due to all damages to other legal goods of the customer that arose due to the defect, unless these are damages to life, body or health of the customer or we have to answer for the defect due to intent or gross negligence.
§12 Contract Documents, Lien
(1) We reserve all property and copyright rights to sketches, program parts, drafts and other documents. They are not the subject of the contract, the customer cannot demand their surrender.
(2) For our claims against the customer from this contract, the customer provides a contractual lien on the software and other copyright and intellectual property protected objects and rights given by the customer to us for processing. This contractual lien also secures our other claims against the customer that do not directly arise from the order.
(3) The customer is obligated to transmit his current address to us, insofar as and as long as the lien exists. Otherwise, the customer cannot derive any rights from the fact that we have sold the thing or the right in case of - justified - lien sale and have sent the lien sale threat only to the last address known to us, provided that a new address was not easily determinable for us through resident registration information.
§13 Mediation
(1) In case of disputes from the business relationship between us and the customer, the parties are obligated to strive for an amicable solution. If no agreement is reached, they commit to settle their differences in mediation before taking legal action. The possibility of emergency proceedings by way of interim legal protection remains unaffected.
(2) If one party applies for mediation with the other party, both parties are obligated to agree on a mediator within eight days. If this agreement is not reached in time, a lawyer mediator - whereby primarily such mediators should be chosen who offer online mediation - is bindingly determined for the parties upon application of one of the parties by the president of the bar association or a representative at the seat of the contractor. This is also the place of mediation, unless the chamber presidency makes a proposal for online mediation. The mediation language is German, unless all parties agree on another language.
(3) Legal action (or an alternatively agreed arbitration procedure, if applicable) is only permissible if mediation has failed because (a) the parties unanimously declare mediation ended, (b) further negotiations are refused by one party after the first mediation session, (c) the mediator declares mediation failed, or (d) no agreement is reached within 3 months after the beginning of the first mediation session, unless the parties unanimously extend the deadline.
(4) The costs of unsuccessful mediation are to be borne internally by the parties vis-à-vis the mediator in equal halves. Regardless of this regulation in relation to the mediator, the parties remain free to demand reimbursement of these costs and those of any accompanying legal advice as legal prosecution costs in a subsequent procedure, the respective dispute decision then applies. If an agreement is reached, the cost regulation agreed thereby applies.
§14 Data Protection, Jurisdiction, Place of Performance
(1) We collect inventory data (e.g. name, address and email address, services used if applicable and all other data of the customer transmitted electronically or for storage that are necessary for the performance of the contract) insofar as they are necessary for the establishment, content design or modification of a contractual relationship between us and the customer.
A transfer of customer data can either
- be necessary for the fulfillment of a contract and then be permitted according to Art. 6 para. 1 lit. b GDPR or
- be permitted on the basis of our legitimate interest in effective service design according to Art. 6 para. 1 lit. f GDPR,
- be covered by consent of the customer according to Art. 6 para. 1 lit. a GDPR or
- become necessary if we are lawfully claimed by a state or authority for surrender of your data according to Art. 6 para. 1 lit. c GDPR.
A transfer of the customer's personal data to third parties takes place exclusively to the service partners involved in contract processing, such as subcontractors, hosters and other third parties. Where necessary, we have concluded contracts with third parties that provide for processing of data on our behalf. Insofar as data is passed on outside the EU, equivalent data protection is ensured, in case of transfer to the USA this only takes place to companies registered with privacy shield. In cases of transfer of the customer's personal data to third parties, the scope of transmitted data is limited to the necessary minimum.
(2) The customer can demand information about the personal data stored by the programmer about the customer free of charge at any time. Identification of the customer will be required to prevent misuse. The customer can demand correction of incorrect data from us at any time as well as restriction of their processing or their deletion. We will then immediately correct, block or delete the customer's personal data, unless legal reasons prevent this. The customer can demand the transfer of the data stored about his person in machine-readable form from us.
Insofar as the customer feels his rights violated by our data processing, he can file a complaint with the competent supervisory authority (here you can find a list of authorities). The customer also has the right to revoke his consent to the storage of his personal data at any time with effect for the future without form, e.g. by email to us, thereby the legality of the previous data processing is not affected. In case of a corresponding notification, the personal data stored about the customer's person will be deleted, unless the relevant data is still needed within the framework of the concluded contractual relationship or legal regulations prevent deletion. In this case, blocking of the relevant personal data takes the place of deletion.
(3) The customer's data remains stored basically only as long as the purpose of the respective data processing requires. Further storage comes into consideration especially if this is still necessary for legal prosecution by us or from our other legitimate interests or we are legally obligated to still keep the customer's data (e.g. within the framework of tax retention periods, which are basically 6 or even 10 years).
(4) Insofar as the customer is a merchant, our business seat is the place of jurisdiction, however we are entitled to sue the customer also at his place of residence or business.
(5) Unless the order confirmation or the contract provides otherwise, our business seat is the place of performance.