§1 General - Scope of Application and Service Description
1.1 Scope of Application
- These General Terms and Conditions (hereinafter "GTC") apply to all current and future business relationships, services, deliveries and performances between ACCELARI GmbH including its affiliated companies (hereinafter "Provider") and their customers (hereinafter "Client"), regardless of whether these are made orally, in writing or in electronic form.
- By commissioning or using any services of the Provider, the Client agrees to these GTC and recognizes them as legally binding, whereby any own general business terms of the Client, even if they are known to the Provider, do not become part of the contract and their validity is hereby expressly objected to.
- These GTC also apply to all future business with the Client, even if they are not expressly agreed upon again, whereby the Provider is entitled to change or supplement these GTC with reasonable notice, and the Client's consent to the change is deemed to have been granted if the Client does not object to the change within four weeks of receipt of the change notification.
1.2 Service Performance
- The Provider provides all services exclusively on the basis of these GTC and the individual contractual agreements, whereby no oral side agreements are made and changes or additions to the agreements require written form, which also applies to the cancellation of this written form clause.
- The Provider is entitled to use qualified third parties (subcontractors) at any time and without prior consent of the Client to fulfill the contractual obligations, whereby the Provider is liable to the Client for the services of the third parties used as for its own services and the selection of the persons used is at the sole discretion of the Provider.
- There is no entitlement to service provision by specific employees or subcontractors at any time, whereby the Provider is entitled to select and replace at any time the personnel used for service provision at its own discretion.
- The specific service obligations of the Provider arise exclusively from the written service description in the respective contract or order confirmation, whereby information in advertising materials, on websites or statements made in any other way do not constitute an extension of the contractual service obligation.
1.3 IT Services and Digital Services
- The provided IT services, software, platforms and digital services are made available in "as-is" condition, whereby the Provider assumes no guarantee for uninterrupted availability, error-free operation or suitability for a specific purpose and technical disruptions due to force majeure, hardware failures, network problems or other circumstances not attributable to the Provider are reserved.
- Maintenance work, updates, system adjustments and technical changes can be carried out at any time without prior notice and may lead to temporary restrictions or interruptions, whereby the Client accepts these as necessary measures for maintaining and improving the services and cannot derive any claims therefrom.
- The Client is exclusively responsible for backing up their data, whereby the Provider assumes no liability for data loss unless this is based on gross negligence or intent of the Provider.
- The Provider is entitled to change or further develop the technical standards, platforms and software used at any time, whereby the Client is responsible for adapting their systems and the compatibility of their hardware and software.
- The use of IT services is at the Client's own risk, whereby the Client is obligated to take appropriate security precautions and keep their access data secret and protect it from access by unauthorized third parties.
1.4 Consulting Services
- All consulting services are provided exclusively based on the information available at the time of consulting and to the best of knowledge and belief, whereby the Provider assumes no warranty for the completeness, correctness or currentness of the information or data used and liability for decisions that the Client makes based on the consultation is expressly excluded.
- No warranty is assumed for economic success, feasibility of recommendations or achievement of specific goals, whereby all statements and recommendations of the Provider represent non-binding action proposals and contain no guarantees or assured characteristics.
- The final decision-making authority for implementing recommendations lies exclusively with the Client, whereby the Client is obligated to examine the recommendations on their own responsibility and independently evaluate the legal, economic and technical framework conditions.
- Changes in legal, economic or technical framework conditions after provision of consulting services may affect the meaningfulness of the consulting results, whereby the Provider is not obligated to subsequently adjust or update already completed consultations.
1.5 Marketing and Advertising Services
- The development and implementation of marketing and advertising concepts is carried out according to creative-artistic standards, whereby the Provider is entitled to deviate from the Client's specifications insofar as this appears necessary for artistic reasons and the deviations are reasonable for the Client.
- No warranty is expressly assumed for advertising effectiveness, success of marketing measures or achievement of specific marketing or sales goals, whereby statements about potential successes or effects of marketing measures always represent non-binding forecasts.
- The legal review of advertising content, particularly with regard to trademark, competition, copyright or personality rights, is the sole responsibility of the Client, whereby the Client indemnifies the Provider against all claims by third parties resulting from violations of such rights.
- The usage rights to all developed concepts, designs, texts and other work results remain with the Provider until full payment, whereby the Client is not entitled to use the work results or make them accessible to third parties before full payment.
- The Provider is entitled to refer to the Provider and possibly to the author on all advertising materials and in all advertising measures, without the Client being entitled to compensation for this.
1.6 Website Content and Media Elements
- All images, videos and media content used on the website are either licensed stock media or content generated using artificial intelligence, whereby these serve exclusively for illustrative design and make no claim to authenticity or reality reference.
- All depicted persons, premises, buildings, work environments and other visual elements have no actual relation to the company or its employees, whereby any similarity to real persons, places or situations is purely coincidental and not intended.
- The texts used on the website were created partially or completely using artificial intelligence, whereby these texts serve exclusively for informational and marketing purposes and contain no legally binding commitments or guarantees.
- Further use, reproduction or distribution of website content by third parties is not permitted without express written permission from the Provider, whereby violations may result in legal consequences.
- The Provider reserves the right to change, supplement or remove website content at any time without prior notice, whereby no claims can be derived from such changes.
1.7 Cooperation Obligations of the Client
- The Client is obligated to provide all information, documents and access required for service provision in a timely, complete and suitable manner, whereby they are solely responsible for the correctness and completeness of this information and indemnify the Provider against any claims by third parties resulting from the use of this information.
- All delays arising from late, incomplete or deficient cooperation by the Client are entirely at their expense, whereby agreed deadlines and periods extend accordingly and the Provider is entitled to separately invoice additional expenses arising therefrom.
- The Client provides qualified contact persons for carrying out the services who are authorized to make the decisions required in the context of service provision, whereby delays due to lack of decision-making authority of the designated contact persons are at the Client's expense.
- When providing IT infrastructure, software or access data, the Client ensures compliance with all relevant security standards and legal requirements, whereby they indemnify the Provider against all claims by third parties resulting from a violation of these obligations.
1.8 Service Changes
- The Provider reserves the right to change or adapt the agreed services at any time for technical, operational or legal reasons, whereby such changes are announced to the Client with reasonable notice and the Client has an extraordinary right of termination in case of material changes.
- Material changes are exclusively those that significantly modify or restrict the agreed main service obligation, whereby adjustments of the technologies, methods or processes used that do not affect the agreed service goal do not constitute material changes.
- The extraordinary right of termination in case of material changes must be exercised in writing within two weeks of receipt of the change notification, whereby the termination becomes effective at the time the change takes effect and services already provided must be fully compensated.
- Minor changes that leave service provision essentially unaffected do not entitle to termination or reduction of the agreed remuneration, whereby the Provider can make such changes even without prior notice.
1.9 Service Deadlines and Dates
- All mentioned dates and deadlines are non-binding unless they have been expressly and in writing designated as binding, whereby even binding dates are subject to the proviso of timely and proper cooperation by the Client.
- Force majeure, labor disputes, unintentional operational disruptions, riots, official measures and other unforeseeable, unavoidable and serious events extend agreed deadlines and postpone agreed dates appropriately, whereby this also applies if these circumstances occur at suppliers or subcontractors of the Provider.
- The Provider is entitled to partial performances insofar as these are reasonable for the Client and do not endanger the purpose of the contract, whereby each partial performance can be separately invoiced and paid by the Client.
- Any damage claims due to delay are limited to foreseeable, typically occurring damage, whereby this limitation does not apply if the delay is based on intent or gross negligence of the Provider.
1.10 Acceptance and Defect Notice
- The Client is obligated to carefully examine the services provided immediately after their provision and document any defects in detail and in writing, whereby the services are deemed to have been accepted as defect-free if the Client does not report defects in writing and substantiated within 5 working days after provision.
- The defect notice must contain a comprehensible and detailed description of the complained defects that enables identification and reproduction of the defects, whereby general complaints or unspecific descriptions are deemed not to meet the deadline.
- Minor defects that do not significantly affect the function and usability of the service do not entitle to refusal of acceptance, whereby such defects are to be remedied within the warranty but do not prevent the due date of the agreed remuneration.
- After acceptance, the complaint of defects is excluded that were recognizable at acceptance or should have been recognizable with careful examination, whereby the assertion of hidden defects remains possible within the warranty period.
1.11 Liability Limitations
- The liability of the Provider for slightly negligent breaches of duty is excluded, insofar as these do not concern essential contractual obligations, damages from injury to life, body or health or guarantees or affect claims under the Product Liability Act.
- The Provider is particularly not liable for indirect damages, consequential damages, lost profits, failed savings, financial damages, interest losses and damages from claims by third parties, whereby this liability limitation also applies in favor of the employees, representatives and vicarious agents of the Provider.
- The total liability of the Provider is limited to the amount of typically foreseeable damage, but at most to the amount of remuneration to be paid or paid for the damage-causing service.
- All damage claims against the Provider become time-barred within one year from the statutory commencement of limitation, whereby this does not apply to claims based on intentional or grossly negligent behavior.
- The Client is obligated to take appropriate measures for damage prevention and mitigation, whereby the Provider must have the opportunity to avert or minimize threatening damage through its own measures.
1.12 Confidentiality and Data Protection
- The contracting parties mutually commit to treat all confidential information, business and trade secrets obtained in the context of the business relationship as confidential for an unlimited time and to use them only for the purposes of the respective order, whereby this obligation continues even after termination of the business relationship and must be passed on to employees and third parties.
- The processing of personal data takes place exclusively in accordance with the General Data Protection Regulation (GDPR) and the applicable national data protection laws, whereby the Provider has implemented appropriate technical and organizational measures to ensure a level of protection appropriate to the risk.
- The Client is obligated to comply with all data protection requirements when transmitting personal data to the Provider and obtain necessary consents from data subjects, whereby they indemnify the Provider against all claims by third parties resulting from a violation of these obligations.
- Details on the processing of personal data, the rights of data subjects and other data protection-relevant aspects are regulated in the separate privacy policy, which in its current version is part of these GTC.
1.13 Final Provisions
- The place of performance for all obligations arising from the business relationship is the seat of the Provider, whereby Munich is agreed as the exclusive place of jurisdiction for all disputes arising from or in connection with the business relationship, insofar as no other place of jurisdiction is legally mandatorily prescribed.
- For all legal relationships between the Provider and the Client, exclusively the law of the Federal Republic of Germany applies excluding the UN Sales Convention and international private law, whereby this choice of law does not result in a consumer being deprived of the protection granted to him by mandatory provisions of the law of the state in which he has his habitual residence.
- Should individual provisions of these GTC be wholly or partially invalid or unenforceable or become so, the validity of the remaining provisions is not affected thereby, whereby the parties commit to replace invalid or unenforceable provisions with those that come closest to what was economically intended.
- Changes, additions and side agreements to these GTC require written form for their effectiveness, whereby this also applies to changing or canceling this written form clause itself and email or fax is not sufficient to maintain written form.
- The German version of these GTC is authoritative, whereby translations into other languages serve only for information and in case of contradictions or ambiguities the German version takes precedence.
1.14 Contact and Support
- For questions, complaints or other concerns in connection with the Provider's services, support is available during regular business hours, whereby the current contact details can be found on the Provider's website and inquiries are processed in the order of their receipt.
- The Provider endeavors to answer all inquiries promptly, whereby however there is no entitlement to a response within a specific period and response times may vary depending on workload and complexity of the inquiry.
- Communications from the Client to the Provider must be made in writing, whereby transmission by email is sufficient unless these GTC or in individual cases expressly prescribe another form.
§2 Contract Duration and Termination
2.1 Contract Duration and Extension
- The minimum contract duration for recurring services and services is, unless otherwise agreed in writing, twelve (12) months from the day of order confirmation by the Provider, whereby the contract automatically extends after expiration of the minimum contract duration by another twelve (12) months each if it is not terminated in compliance with the agreed notice period.
- When using additional services or extensions during the current contract duration, the duration for the entire service package extends again by twelve (12) months from the time of the extension, whereby the previous contract conditions otherwise continue to apply unchanged.
- For projects with a defined project end, the duration specified in the respective offer applies, whereby this extends accordingly in case of delays for which the Client is responsible and additional costs are calculated according to the agreed hourly rates.
2.2 Notice Periods and Modalities
- Ordinary termination is possible for both contracting parties with a notice period of three (3) months to the end of the respective contract duration, whereby the termination must be made in writing by registered mail with return receipt or digitally with qualified electronic signature and receipt by the respective recipient is decisive for meeting the deadline.
- Termination of individual service components is only possible if these were agreed as separate service packages, whereby termination of individual components leaves the duration and remuneration of the other services unaffected and price adjustments due to changed package constellations are reserved.
- After receipt of a termination, the Provider will send the Client a written termination confirmation, whereby the Client is obligated to immediately complain about the absence of such confirmation and prove receipt of the termination.
2.3 Extraordinary Termination
- The right to extraordinary termination for important cause remains unaffected for both parties, whereby an important cause exists particularly when one party sustainably and seriously violates its contractual obligations and does not remedy this violation even after written request and setting a deadline of at least 14 days.
- An important cause for extraordinary termination by the Provider exists particularly in case of payment default by the Client with more than two monthly invoices, repeated late payment despite reminder, opening of insolvency proceedings over the Client's assets or its rejection for lack of assets, whereby the Provider is entitled in these cases to immediately stop all services.
- Sustained violation of cooperation obligations by the Client, disclosure of confidential information to third parties contrary to contractual agreements or repeated violation of essential contractual obligations also constitute important cause for extraordinary termination, whereby the terminating party reserves the right to claim damages.
2.4 Consequences of Termination
- When the termination becomes effective, the Provider's obligation to continue service provision expires, whereby services provided up to this point must be fully compensated and payments already made for services no longer to be provided are refunded on a pro-rata basis.
- The Client is obligated to immediately return or deactivate all documents, materials and access provided to the Provider, whereby the Provider is entitled to delete all Client data after 30 days after contract end, unless legal retention obligations exist.
- The provisions on confidentiality, data protection, liability and place of jurisdiction remain effective even after termination of the contractual relationship, whereby particularly the obligation to maintain confidentiality of confidential information continues for an unlimited time.
2.5 Special Termination Rights
- In case of material changes to the agreed services by the Provider, the Client has a special right of termination with a period of one month to the time the change becomes effective, whereby this right must be exercised in writing within two weeks of receipt of the change notification.
- In case of force majeure that makes service provision impossible or significantly more difficult for a period of more than three months, both parties have an extraordinary right of termination, whereby services already provided are to be settled and compensated.
- In case of death or permanent incapacity of the Client, their legal successors are entitled to terminate the contract with a period of one month to the end of the month, whereby the termination must be made in writing and proof of succession must be provided.
§3 Remuneration and Payment Conditions
3.1 Pricing and Remuneration
- All prices are, unless expressly stated otherwise, in euros plus the applicable statutory value-added tax, whereby the Provider is entitled to increase the agreed prices after written notice with a period of three months if and insofar as the costs decisive for price formation have increased.
- The remuneration is based on the price lists of the Provider valid at the time of contract conclusion or individual written agreements, whereby for contracts with a duration of more than 12 months an annual price adjustment of up to 5% is permissible without separate justification.
- Additional or subsequently requested services are calculated according to the Provider's current hourly rates, whereby these must be agreed in writing before execution of the services and the Provider is entitled to demand advance payments for such services.
3.2 Payment Modalities
- The agreed remuneration is, unless otherwise agreed in writing, due monthly in advance by the third working day of the respective month without deduction, whereby receipt on the Provider's account specified in the invoice is decisive for timely payment.
- The Provider is entitled to transmit invoices electronically by email, whereby the Client is obligated to provide a valid email address for invoice receipt and immediately report changes to this address.
- For projects with a total volume of over 10,000 euros, the Provider is entitled to demand the following payment schedule: 40% upon order placement, 30% at project midpoint and 30% at project completion, whereby the respective partial amounts are due within 14 days of invoicing without deduction.
3.3 Travel Costs and Additional Expenses
- Travel times are calculated at 50% of the agreed hourly rate, whereby travel to/from the customer from a distance of 50 kilometers from the Provider's seat counts as travel time and billing is done in 15-minute intervals.
- Travel costs and expenses are invoiced according to actual expenditure, whereby the following flat rates apply: car use 0.50 EUR per kilometer, train journeys 1st class, flights economy class, overnight stays up to 150 EUR per night, meal allowance 28 EUR per day for absence of more than 8 hours.
- Other necessary expenses and additional expenditures required for proper execution of the order are invoiced after prior coordination and against proof, whereby the Provider is obligated to immediately inform the Client if it becomes foreseeable that the estimated costs will be exceeded.
3.4 Payment Default and its Consequences
- When the payment deadline is exceeded, the Client falls into default without further reminder, whereby the Provider is entitled to calculate default interest of 9 percentage points above the respective base rate of the European Central Bank as well as a flat rate for reminder costs of 40 EUR per reminder.
- In case of payment default, the Provider is entitled to stop all services without further notice and make resumption of services dependent on complete settlement of all outstanding claims including default interest and reminder costs, whereby the Provider is released from its service obligation for the time of service suspension.
- In case of payment default with more than two monthly invoices, the Provider is entitled to make all claims from the business relationship immediately due and withdraw from the contract, whereby services already provided become immediately due for payment in full amount and the Provider is furthermore entitled to claim damages.
3.5 Set-off and Right of Retention
- The Client is entitled to set-off only with undisputed or legally established claims, whereby a right of retention can only be asserted due to counterclaims from the respective contractual relationship.
- The assignment of the Client's claims against the Provider to third parties is excluded, whereby the Provider is entitled to assign or pledge claims from the business relationship to third parties.
- In case of justified doubts about the Client's ability to pay, the Provider is entitled to make further service provision dependent on advance payment of remuneration or corresponding security even during the term of a contract, whereby after fruitless expiration of a reasonable deadline set for this purpose an extraordinary right of termination exists.
§4 Customer's Cooperation Obligations
4.1 Provision of Information and Documents
- The Client commits to provide all information, documents, data and materials required for service provision in a timely, complete and suitable manner, whereby they are solely responsible for their correctness, completeness and legal permissibility and indemnify the Provider against all claims by third parties that may result from the use of the provided materials.
- The provision of required documents must be in a common, directly usable digital format or in printed form, whereby the Client is obligated to keep complete backup copies of all handed over documents and data carriers and the Provider is entitled to refuse acceptance of documents that do not meet these requirements.
- Changes to the provided information and documents must be immediately communicated to the Provider in writing, whereby the Client is liable for all delays and additional expenses resulting from late, incomplete or erroneous information.
4.2 System Access and Technical Resources
- The Client grants the Provider and its employees the access to its systems, networks, databases and other technical resources required for service provision, whereby they ensure that this access complies with current security standards and all necessary authorizations, access data and passwords are provided in a timely manner.
- For remote access, the Client provides a secure connection (VPN or comparable technology) that meets the Provider's technical requirements, whereby they are responsible for compliance with all relevant data protection and IT security regulations and indemnify the Provider against any claims by third parties.
- The Client ensures the compatibility of their technical systems with the technologies and tools used by the Provider, whereby they are obligated to keep their systems up to date and carry out necessary updates or adjustments promptly upon request by the Provider.
4.3 Designation and Availability of Contact Persons
- The Client designates in writing at least one qualified and decision-authorized main contact person as well as a deputy, whereby these persons must be authorized to make all decisions required for contract execution or immediately bring them about.
- The designated contact persons must be reachable during regular business hours and have sufficient professional qualification to provide the required information and make decisions, whereby changes in the person of contact persons must be immediately communicated to the Provider in writing.
- For time-critical or complex projects, the Client ensures the reachability of a decision-authorized contact person also outside regular business hours, whereby the contact details for emergencies are to be agreed separately.
4.4 Deadlines and Dates for Cooperation Actions
- The Client provides their cooperation actions within the agreed deadlines or reasonable deadlines set by the Provider, whereby they are obligated to immediately inform the Provider if it becomes foreseeable that deadlines cannot be met.
- In case of delays in providing cooperation services, the agreed execution deadlines extend at least by the period of the delay, whereby the Provider is entitled to invoice the Client for the additional effort arising from the delay according to the agreed hourly rates.
- If the Client does not fulfill their cooperation obligations despite reminder and reasonable additional deadline, the Provider is entitled to terminate the contract extraordinarily and claim damages, whereby the damages amount to at least 30% of the agreed remuneration unless the Client proves that lesser damage occurred.
4.5 Quality Assurance and Acceptance
- The Client conducts regular quality controls in their area of responsibility and documents these in appropriate form, whereby they are obligated to immediately report identified defects or problems in writing and provide all information required for error analysis.
- Required tests, acceptances or approvals must be carried out and declared by the Client immediately, whereby refusal of acceptance or approval must be made in writing with exact specification of defects and is only permissible in case of material defects.
- The Client provides sufficiently qualified personnel as well as suitable test data and test environments for tests and acceptances, whereby they bear the costs for these resources themselves and are responsible for compliance with all legal requirements, particularly data protection.
§5 Data Protection and Confidentiality
5.1 Data Protection and GDPR Compliance
- The Provider processes personal data exclusively within the framework of applicable data protection regulations, particularly GDPR and BDSG, whereby all employees of the Provider are committed to data secrecy and undergo regular data protection training.
- Insofar as the Provider acts as a processor in the context of service provision, this is done exclusively based on a separate agreement for processing according to Art. 28 GDPR, whereby the Client is obligated to conclude this agreement before the start of data processing.
- The Client remains the "data controller" in terms of data protection law and thus responsible for the lawfulness of data processing, whereby they are particularly obligated to obtain necessary consents, fulfill information obligations and safeguard the rights of data subjects.
5.2 Technical and Organizational Measures
- The Provider employs technical and organizational measures corresponding to the state of the art to ensure a level of protection appropriate to the risk for the processed personal data, whereby these measures are regularly reviewed and adapted as needed.
- The implemented security measures include particularly access, admission and access control, encryption, pseudonymization, logging and regular audits, whereby the Provider is entitled to further develop these measures provided the security level is not compromised.
- The Client is advised that data transmission on the Internet may have security gaps, whereby complete protection of data from access by third parties is not possible and the Provider assumes no liability for the security of data transmission on the Internet.
5.3 Secrecy and Confidentiality
- Both parties commit to treat all confidential information, business and trade secrets obtained within the framework of the contractual relationship as confidential for an unlimited time and use them only for the agreed purposes, whereby this obligation continues even after termination of the contractual relationship.
- Information marked as confidential or whose confidentiality results from the circumstances, particularly technical and economic information, business strategies, customer data and price calculations, is considered confidential, whereby in case of doubt confidentiality of the information is to be assumed.
- The confidentiality obligation also extends to all employees and commissioned third parties of the parties, whereby the parties are obligated to accordingly commit this group of persons and monitor compliance with confidentiality.
5.4 Data Backup and Backup
- The Provider conducts regular backups of the data and systems managed by them, whereby the backup strategy includes at least daily incremental and weekly complete backups as well as geographically separate storage of backup media.
- Data restoration from backups is only carried out upon express request of the Client, whereby the associated effort is calculated according to the agreed hourly rates and no guarantee is assumed for the completeness of the restored data.
- The Client remains responsible for backing up their data regardless of the Provider's backup services, whereby they are particularly obligated to perform a complete data backup before any change or maintenance of their systems.
5.5 Data Deletion and Return
- After termination of the contractual relationship, the Provider will delete or return all personal data unless legal retention obligations exist, whereby the Client must specify the type of return (format, data carrier etc.) in time before contract end.
- Data deletion is confirmed in writing upon request, whereby the Provider is entitled to use anonymized or aggregated data for statistical purposes and quality improvement.
- The Provider is entitled to create and retain copies of data insofar as this is necessary to fulfill legal obligations or for evidence preservation, whereby this data is immediately deleted after the retention reason ceases to exist.
§6 Warranty and Liability
6.1 General Liability Limitations
- The Provider is liable without limitation only for intent and gross negligence as well as for damages from injury to life, body or health, whereby any further liability of the Provider is excluded insofar as nothing else is determined below.
- In case of slight negligence, the Provider is only liable for violation of an essential contractual obligation whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the contracting partner may regularly rely, whereby liability is limited to the contractually typical, foreseeable damage.
- Liability for indirect and unforeseeable damages, production and usage failure, lost profit, failed savings and financial damages due to claims by third parties is excluded in case of slight negligence, whereby liability is in any case limited in amount to the sum of remuneration paid within the framework of the respective contract in the last 12 months.
6.2 Specific Liability Regulations for IT Services
- When providing IT services and software, no warranty is assumed for uninterrupted availability or complete error-free operation, whereby only the characteristics expressly mentioned in the service description are considered agreed quality and properties or functions beyond this are not owed.
- For loss of data and its restoration, the Provider is only liable if such loss was not avoidable through appropriate data backup measures on the part of the Client, whereby liability is limited to the typical restoration effort that would have occurred with regular and risk-appropriate creation of backup copies.
- Liability for disruptions or damages due to changes to the provided systems, software or configurations not made by the Provider is excluded, whereby the Client is solely responsible for the consequences of such interventions.
6.3 Warranty Periods and Exclusions
- The warranty period is 12 months from acceptance of the respective service, whereby this shortened limitation period does not apply to damage claims directed at compensation for bodily or health damage due to a defect attributable to the Provider or based on intent or gross negligence.
- Defects must be reported immediately after their discovery in writing, whereby the defect notice must contain a comprehensible description of the defect and warranty expires if the Client makes changes to the services without the Provider's consent himself or through third parties.
- The Provider has the right to at least two subsequent improvement attempts before the Client can assert other warranty rights, whereby the Client must grant the Provider the time and opportunity necessary for subsequent improvement.
6.4 Force Majeure and Acts of God
- Neither party is obligated to fulfill its contractual obligations in case and for the duration of force majeure, whereby force majeure includes particularly war, natural disasters, strike, lockout, epidemics, pandemics, official orders, cyber attacks by third parties and other unforeseeable, unavoidable and serious events.
- The affected party will immediately notify the other party of the occurrence as well as the cessation of force majeure and adapt its obligations to the changed circumstances in good faith, whereby after a duration of more than three months each party is entitled to withdraw from the not yet fulfilled part of the contract.
- In case of force majeure, the Client's obligation to pay remuneration expires for the duration of service interruption, whereby in case of definitive impossibility of performance both parties are entitled to terminate the contract without observing a deadline.
6.5 Indemnification and Liability Towards Third Parties
- The Client indemnifies the Provider against all claims by third parties based on unlawful use of the provided services by the Client or occurring with their approval, whereby this indemnification also includes the costs of necessary legal defense by the Provider.
- If third party rights are violated by the Provider's services, the Provider will at its own choice and expense either modify the services so that they no longer violate the protective rights but still comply with the contractual agreements, or provide the Client with the right of use, whereby further claims by the Client exist only according to this paragraph.
- Liability under the Product Liability Act remains unaffected by the above regulations, whereby the parties commit to maintaining appropriate product liability insurance with adequate coverage.
§7 Copyright and Usage Rights
7.1 Principles of Rights Granting
- All rights to works developed or provided by the Provider, particularly software, documentation, concepts, graphics and other copyrighted materials, remain with the Provider, whereby the Client is only granted the usage rights expressly mentioned in this paragraph and all usage rights not expressly granted remain with the Provider.
- The granting of usage rights is subject to the condition precedent of full payment of the agreed remuneration, whereby until full payment only a provisional usage right that can be revoked at any time is granted.
- The Provider is entitled, even when granting an exclusive usage right, to use the developed components and the know-how acquired thereby without restriction in developing similar works for other clients, whereby confidentiality obligations regarding client-specific information remain unaffected.
7.2 Software Licenses and Terms of Use
- For software developed by the Provider, the Client receives, unless otherwise agreed, a non-exclusive, non-transferable usage right limited spatially to the Client's seat, whereby use is only permitted for own business purposes and only within the framework of the contractually agreed number of users.
- Decompilation, reverse engineering or removal of protective mechanisms of the software is prohibited, whereby the mandatory provisions of §§ 69d, 69e UrhG remain unaffected and decompilation is only permissible for establishing interoperability with other programs.
- For standard software from third-party manufacturers, their license conditions apply with priority, whereby the Provider provides the Client with the respectively applicable license conditions before contract conclusion and cannot grant rights beyond these.
7.3 Transfer and Sublicensing
- Transfer of the granted usage rights to third parties or granting of sublicenses is only permissible with prior written consent of the Provider, whereby the Provider will not unreasonably refuse consent if its legitimate interests are safeguarded.
- In case of approved transfer of usage rights, the Client must impose their contractual obligations and usage restrictions on the third party, whereby the Client is liable for violations by the third party as for own violations.
- For group-affiliated companies, use by these is only permitted after prior written agreement and against additional remuneration, whereby the Provider will appropriately consider group structures when determining additional remuneration.
7.4 Protection of Intellectual Property
- The Client commits not to remove or change the Provider's copyright notices, markings and trademarks, whereby they also impose this obligation on their employees and other third parties who come into contact with the works as intended.
- In case of violations of protective rights by the Client, the Provider is entitled to prohibit further use of the affected works and claim damages, whereby damages correspond to at least three times the agreed remuneration unless the Client proves lesser damage.
- The Client will immediately inform the Provider if they become aware of violations of the transferred protective rights by third parties, whereby the Provider can take over legal prosecution at its own discretion and expense.
7.5 Special Regulations for Individual Developments
- For works individually developed for the Client, the Provider grants, unless otherwise agreed, an exclusive, unlimited usage right, whereby this requires full payment of the agreed remuneration and does not extend to used standard components, frameworks or tools of the Provider.
- Source code of individually developed software is only handed over if this has been expressly agreed in writing, whereby even in this case the rights to the used standard components, frameworks and tools remain with the Provider.
- If patentable inventions are made in the course of development, the rights thereto belong exclusively to the Provider, whereby the Provider will grant the Client a non-exclusive license under market conditions.
§8 Change Management
8.1 Principles of Change Management
- Changes and extensions to the agreed scope of services can be requested by both contracting parties at any time in writing, whereby each change request must contain at least the exact description of the desired change, the reason for the change and the expected effects on schedule and costs.
- The Provider is entitled to reject a change request by the Client if the change is technically not feasible or associated with disproportionate effort, whereby the rejection must be justified in writing.
- During examination of a change request and negotiation of change agreements, the Provider is obligated to continue the contractual services as planned unless the Client orders an interruption in writing.
8.2 Change Request Process
- After receipt of a change request, the Provider will submit an initial assessment of the effects on schedule, costs and technical feasibility within 10 working days, whereby this assessment is non-binding and must be specified through detailed analysis.
- The costs for examining a change request and creating a detailed change proposal are borne by the Client according to the agreed hourly rates, whereby the Provider communicates the expected effort for examination in advance and obtains the Client's consent.
- Each change proposal must contain at least the following information: detailed description of changes, effects on schedule, costs of implementation, necessary adjustments of resources and cooperation obligations, whereby the Provider will also show alternative implementation variants.
8.3 Effects on Schedule and Remuneration
- With acceptance of a change proposal, the changes contained therein become binding part of the contract, whereby agreed dates and deadlines shift according to the effects specified in the change proposal and additional remuneration is to be paid according to the agreed conditions.
- The Provider is entitled to demand reasonable advance payment or security for implementing changes, whereby a right of retention exists regarding change implementation until advance payment is made.
- Additional or changed services provided without prior written agreement are not to be compensated by the Client, whereby the Provider also assumes no warranty for these services in this case.
8.4 Documentation Obligations
- All changes are to be documented completely and comprehensibly, whereby at least the following documents must be created and maintained: change request, change proposal, change agreement, technical documentation of changes and acceptance protocol.
- The Provider maintains a change log in which all change requests, their status and decisions made are recorded chronologically, whereby the Client can demand access to the change log at any time.
- Adjustments to project and system documentation required by changes are to be made by the Provider and made available to the Client, whereby the costs for this must be included in the respective change proposal.
8.5 Change Advisory Board
- For projects with a total volume of over 100,000 euros, a Change Advisory Board (CAB) is established, to which at least one representative each of the Client and the Provider belong, whereby the CAB advises on all change requests and issues recommendations for their implementation.
- The CAB meets as needed, but at least once monthly, whereby meetings can also be conducted as video conferences and must be recorded in minutes.
- The final decision on implementing changes remains with the contracting parties, whereby the CAB's recommendations are to be appropriately considered in decision-making.
§9 Project Acceptance and Defect Remediation
9.1 Principles of Acceptance
- All services provided by the Provider are subject to formal acceptance by the Client, whereby acceptance must be made in writing by means of an acceptance protocol and partial acceptances for self-contained service parts are permissible.
- The Provider will notify the Client in writing of the readiness for acceptance of a service and propose an acceptance date, whereby the acceptance date must be within 10 working days of notification of readiness for acceptance.
- Acceptance may only be refused in case of material defects, whereby defects that significantly impair or make impossible the use of the service are considered material.
9.2 Acceptance Process and Criteria
- The acceptance process is divided into the phases handover, examination and acceptance declaration, whereby the examination phase lasts a maximum of 15 working days and the Client must test the services during this time based on the agreed acceptance criteria.
- Acceptance criteria must be established in writing at the latest at project start, whereby subsequent changes or additions to acceptance criteria are only possible within the framework of the change management process.
- The Provider has the right to participate in the acceptance examination and support the Client in conducting tests, whereby the resulting costs are to be borne by the Client according to the agreed hourly rates.
9.3 Defect Classification and Documentation
- Identified defects are to be classified into three categories: critical defects (preventing acceptance), significant defects (acceptance with reservation) and insignificant defects (acceptance without restriction), whereby classification is based on objective criteria and effects on usability.
- Each defect must be comprehensibly documented by the Client, whereby at least the following information is required: detailed description of the defect, reproduction steps, effects on use and desired behavior.
- The Provider is obligated to provide a statement for each reported defect, whereby this must contain an assessment of the defect category and the expected remediation effort.
9.4 Defect Notice Periods and Procedures
- The Client must report defects immediately, but at the latest within 5 working days of their discovery in writing, whereby the notice must contain a detailed description of the defects and their effects.
- For obvious defects, the notice period begins with handover of the service, for hidden defects with their discovery, whereby the notice period is in any case limited by the warranty period.
- If no timely defect notice is given, the service is also considered approved with regard to the relevant defect, whereby claims for fraudulently concealed defects remain unaffected thereby.
9.5 Subsequent Improvement and Defect Remediation
- The Provider will remedy reported defects within reasonable time, whereby the reasonableness of the deadline depends on the severity of the defect and its effects on usability and amounts to a maximum of 5 working days for critical defects, 10 working days for significant defects and 20 working days for insignificant defects.
- The Provider has the right to at least two subsequent improvement attempts before the Client can assert further warranty rights, whereby after failed subsequent improvement the Client can demand reduction of remuneration or reversal of the contract at his choice.
- Subsequent improvement is considered failed if the defect is not remedied even after the second subsequent improvement attempt, whereby the Provider is entitled to provide a programmatic workaround solution if this is reasonable for the Client and only insignificantly impairs contractual use.
§10 Special Provisions for Specific Service Areas
10.1 Software Development
- Software development is carried out exclusively based on a written specification that must be approved by the Client, whereby subsequent change requests are subject to the change management process and are separately compensated.
- The source code remains the property of the Provider and is only handed over after separate written agreement and against additional remuneration, whereby even in this case the rights to used frameworks, libraries and tools remain with the Provider.
- Development is carried out according to the approach model specified in the project contract (e.g. waterfall, agile, scrum), whereby deviations from the chosen model require written consent of both parties and the associated additional costs are to be borne by the Client.
10.2 IT Support and Maintenance
- The Provider provides support and maintenance services during the agreed service hours with the defined reaction and restoration times, whereby prioritization of disruptions follows the agreed urgency matrix and reaction times only run within service hours.
- Maintenance windows are announced with a period of at least 5 working days, whereby the Provider is entitled to carry out maintenance work even without prior announcement in emergencies if this is necessary to maintain the security or stability of the systems.
- The Client must provide technically suitable access for remote maintenance, whereby the costs for establishing and maintaining access are to be borne by the Client and the Provider assumes no liability for disruptions of the remote maintenance connection.
10.3 Marketing and Consulting Services
- Marketing and consulting services are provided to the best of knowledge and considering the current state of technology and market development, whereby the Provider assumes no warranty for the economic success of recommended measures and forecasts or assessments are non-binding.
- The Client ensures that all provided materials, texts, images and other content are free of third party rights and their use does not violate applicable law, whereby they indemnify the Provider against all claims by third parties resulting from violation of this obligation.
- When creating marketing materials, the Provider reserves a right of first design, whereby after three correction rounds further changes are calculated according to effort and the Client must approve the final version within 5 working days.
10.4 Hosting Services
- The Provider guarantees an average annual availability of hosting services of 99.5% on an annual average, whereby scheduled maintenance work, force majeure and disruptions in the area of responsibility of the Client or third parties are not considered in the calculation.
- Data backup is carried out according to the agreed backup strategy, whereby the Provider assumes no guarantee for the completeness and recoverability of data and the Client is obligated to regularly create own backup copies of critical data.
- The Client commits not to host unlawful or system security-threatening content and to comply with agreed resource limits, whereby the Provider is entitled to block access and terminate the contractual relationship without notice in case of violations.
10.5 General Technical Framework Conditions
- The Client ensures that their technical infrastructure meets the minimum requirements communicated by the Provider, whereby they are obligated to promptly install necessary updates and security patches and keep their systems up to date.
- When using cloud services, data processing takes place exclusively in data centers within the European Union, whereby the Provider is entitled to use certified subcontractors and adapt the infrastructure to technical developments.
- The interfaces and data formats for data exchange are specified by the Provider, whereby changes are announced with reasonable notice and the Client is responsible for adapting their systems themselves.
§11 Final Provisions
11.1 Place of Jurisdiction and Performance
- Exclusive place of jurisdiction for all disputes arising from or in connection with this contract and its execution is Munich, whereby the Provider is entitled to sue the Client also at their general place of jurisdiction.
- Place of performance for all obligations arising from the contractual relationship is the Provider's seat in Munich, whereby this is also agreed as place of performance for payments, insofar as nothing else is legally mandatorily determined.
- The jurisdiction of Munich also applies to disputes in documentary, bill of exchange or check proceedings, whereby the choice of jurisdiction also applies to proceedings for asserting claims by way of payment order proceedings.
11.2 Applicable Law
- For these GTC and all legal relationships between the Provider and the Client, exclusively the law of the Federal Republic of Germany applies excluding all international and supranational (contractual) legal orders, whereby particularly the UN Sales Convention does not apply.
- The contract language is German, whereby in case of translations of these GTC or other contract documents into other languages the German version is authoritative and binding.
- For the interpretation of these GTC and all contract documents, exclusively German legal concepts and German legal understanding are authoritative, whereby this also applies when the English or another language version is used.
11.3 Severability Clause
- Should individual provisions of these GTC be wholly or partially invalid or unenforceable or become so, the effectiveness of the remaining provisions is not affected thereby, whereby the invalid or unenforceable provision is replaced by one that comes closest to what was economically intended.
- In case of regulatory gaps, those legally effective regulations are deemed agreed for filling these gaps which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these GTC if they had known the regulatory gap.
- Non-exercise or delayed exercise of a right by one of the parties does not constitute a waiver of this right, whereby this also applies to partial exercise of rights or one-time non-exercise of a right.
11.4 Written Form Requirement
- Changes and additions to these GTC as well as all contract-relevant declarations require written form for their effectiveness, whereby electronic form (§ 126a BGB) and text form (§ 126b BGB) are not sufficient.
- The written form requirement also applies to the cancellation or change of this written form clause itself, whereby oral side agreements were not made and are invalid.
- Excluded from the written form requirement are declarations expressly designated as such for which these GTC provide another form, whereby this particularly applies to communication in operational daily business.
11.5 Confidentiality of Contract Terms
- The parties commit to treat the content of these GTC as well as all related agreements confidentially, whereby this particularly applies to prices, conditions and project-specific regulations.
- The confidentiality obligation does not apply to information that must be disclosed due to legal provisions or official orders, whereby in this case the other party must be immediately informed about the disclosure obligation.
- The confidentiality obligation continues even after termination of the contractual relationship, whereby each party is obligated to return or destroy all confidential documents upon request of the other party.
§12 Website Content and Media Elements
12.1 Image Material and Video Content
- It is expressly pointed out that all images and videos used on the website are either licensed stock media or content generated using artificial intelligence, whereby these are used exclusively for design and illustration purposes and make no claim to authenticity.
- The persons, premises, buildings, work environments and other visual elements depicted on the website have no actual connection to the company or its business operations, whereby these are exclusively fictional representations.
- It is expressly clarified that no real employees, actually existing business premises or genuine company locations are depicted, whereby all visual representations have exclusively exemplary and illustrative character.
12.2 Text Content and AI-Generated Content
- The texts used on the website were created partially or completely with the help of artificial intelligence, whereby these serve exclusively for informational and marketing purposes and contain no legally binding assurances or guarantees.
- Legally binding statements are found exclusively in the General Terms and Conditions, the Privacy Policy and the individually concluded contract works, whereby website content serves only for general information.
- The AI-generated content is editorially reviewed before publication, whereby nevertheless no guarantee is assumed for their completeness, currentness or correctness.
12.3 Liability Disclaimer for Media Content
- The company assumes no warranty for any similarities of the depicted content with really existing persons, places, situations or circumstances, whereby any matches are purely coincidental and not intended.
- The use of stock media and AI-generated content is carried out within the framework of the respective license and usage terms of the providers, whereby the company ensures that all necessary rights for use are available.
- No liability is assumed for technical or content errors in the depicted media content, whereby the company reserves the right to change or remove content at any time without prior notice.
12.4 Copyright and License Terms
- The use of stock media is carried out exclusively within the framework of legally acquired licenses, whereby the respective license terms of the providers are strictly observed and further use by third parties is expressly prohibited.
- The content generated by artificial intelligence is subject to the specific terms of use of the respective AI systems and their providers, whereby the company ensures that use is in accordance with these terms.
- Further use, reproduction, distribution or other use of the media content depicted on the website by third parties is not permitted without express written permission from the company, whereby violations may result in legal consequences.
12.5 Update and Change Reservation
- The company reserves the right to update, change or remove the media content depicted on the website at any time and without prior notice, whereby no claims can be derived from such changes.
- The use of media content always takes place subject to technical availability and continuing license rights, whereby the company endeavors to always design the website current and appealing.
- Upon notice of legal violations by the used media content, these are immediately examined and if necessary removed or replaced, whereby the company ensures timely processing of corresponding notices.
12.6 Automated Communication and Data Processing
- Every website visitor and client is hereby expressly informed and by using the website agrees that all communication (written, telephonic and audiovisual) is carried out by automated systems and artificial intelligence, whereby these systems act on behalf of and under control of the Provider and are subject to the same confidentiality and data protection obligations as human employees.
- For the technical implementation of automated communication and data processing, specialized service providers such as Twilio, ElevenLabs, ChaticMedia as well as other similar services are used as processors according to Art. 28 GDPR, whereby corresponding data processing agreements according to GDPR requirements have been concluded with all service providers.
- All communication data of website visitors and clients are stored and processed for the purpose of quality assurance, process optimization and further development of automated systems, whereby this processing is based on Art. 6 para. 1 lit. f GDPR and each data subject has a right of objection according to Art. 21 GDPR.
- The primary storage and processing of communication data takes place in data centers within the European Union, whereby for the use of specialized service providers such as Twilio, ElevenLabs and ChaticMedia, data processing also takes place outside the EU according to the EU Commission's Standard Contractual Clauses (Art. 46 para. 2 lit. c GDPR). The user expressly agrees to this data transfer to third countries, whereby the respective data protection provisions and processing locations of the individual service providers are listed in detail in our privacy policy.
- By using the website and communication channels, every visitor and client acknowledges that no legally binding declarations, assurances or guarantees can be given within the framework of automated communication, whereby legally binding agreements must be made exclusively in written form according to § 11.4 of these GTC.
