(1) The following contents shall apply to the entire business relationship between AIRBYTES GmbH (hereinafter referred to as the agency) and the customer if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) or a legal person under public law.
(2) The Agency shall not accept any terms or conditions deviating from or contrary to this contract, unless the validity of these General Terms and Conditions of Business is expressly agreed in writing. This shall also apply if the customer's submission or acceptance of the offer is made with reference to the primary application of his own general terms and conditions
(1) In the course of the present cooperation, proposals for project work of the Agency shall be exempt, unless otherwise specified. In the case of fixed tenders, the Agency shall be bound by other provisions for a period of two weeks, the date of the levy being determined.
(2) The contract shall be concluded with the Agency confirming an order, but at the latest with the Agency carrying out the work.
(3) As a matter of principle, the Agency will only offer free offers on the basis of detailed service catalogs. Unless a detailed technical / conceptual performance catalog has been sent, the inquiry implies the commissioning of a project planning with costs, along with an accompanying cost calculation and feasibility assessment. Targets are not performance catalogs within the meaning of these General Terms and Conditions.
(4) Any instruction (in writing / oral / concluding) on the part of the client or his authorized representative for the performance by the Agency shall be deemed to be an order.
(1) The scope and details of the reciprocal services as well as the specific rights and obligations of the parties arise from the respective commissioning in connection with these terms and conditions.
(2) In principle, services for the customer pursuant to Art. Whose oral / written request has been carried out. The Agency reserves the right to explicitly request payment of expenses.
(1) All services, in particular concepts, consulting, development, design and project management, shall be remunerated. Unless otherwise agreed, the fees shall be deemed as agreed in the current price list.
(2) Unless otherwise agreed, all services shall be reimbursed according to time. The services are presented to the customer in a detailed service overview.
(3) A binding calculation of the expenses incurred and the scope of the services provided, and thus a package offer deviating from paragraph (2), shall be made only upon express request. All other budget items are only an orientation mark. Each calculation produced by the Agency relates only to the areas of technology and design. Project management times are not compulsorily calculated. If the calculation was carried out on the basis of a catalog of services acknowledged by both parties, the extra costs shall be charged to the Agency by more than 20%, including the customer's costs. Additional costs in the area of project management / consulting as well as additional costs arising on the basis of further coordination between the agency and customer or agency and third parties are always charged to the customer. A budget release on the part of the customer shall be deemed to have taken place after notification by the Agency of the resulting additional costs, provided no other explicitly different coordination (for example, aborting the work) takes place The Agency chooses the most efficient and appropriate way to implement the economic model, based on the Pareto principle. If there is no exact specification, ie disagreement about an extent, tasks are done at the discretion of the agency within the framework of the usual practice. This means that an interpretation of a task description or the formulated target must fit into the agreed time budget under normal circumstances. The Agency shall take account of the customer's adjustment and modification requests, which will be made after acceptance of the cost calculation / offer, but before the final acceptance. Depending on the extent, additional costs may arise, to which the agency refers to the customer. Examples of cost-related changes are not exhaustive: Technical changes that occur prior to acceptance (e.g., due to new browser updates); Changes resulting from new business segments, products, etc.; Changes in taste; Inquiries or votes beyond the estimated consulting requirements (either consultancy time mentioned in the offer or, if not stated, 10% on the consultation); Votes with third parties beyond the period of consulting.
(4) If the parties have not concluded an agreement on the remuneration of a service which, in the circumstances, could only be expected to be paid against remuneration, the contracting entity shall pay the usual remuneration.
(5) The Agency shall be empowered to adjust the prices for services which have not yet been awarded, with an announcement period of one month at any time.
(6) All amounts are exclusive of VAT.
(7) The Agency may transmit invoices and reminders by electronic means.
(8) All contractually agreed remuneration is, where relevant, exclusive packaging and transport.
(9) The expenses, expenses and travel expenses incurred by the agency within the scope of the order shall be borne by the customer and shall be settled according to the price list. If the agency purchases the goods on behalf of the customer, they will be charged according to actual costs plus a handling fee of € 50.00 per transaction.
(10) The Agency normally requires a deposit of thirty (30)% for orders exceeding € 2,500.00 or 50 (%) for contracts exceeding € 5,000.00 / p>
(11) The Agency is entitled to make partial payments. In addition, the Agency shall be entitled to charge as part of the agreed-upon service for self-contained and independently usable parts of the agreed service. It is also possible to settle down payments in chronological order.
(12) Any invoice must be checked within 10 days after receipt by the customer, and possibly contradicted. Otherwise the invoice is considered approved.
(1) Without the service contract concluded, the Agency shall not provide ongoing support, service and consultancy services. If an extended service is not contracted, the Agency is not responsible for any performance or within a certain time.
(2) The term "support" in the sense of the GTC essentially describes the time-critical help with problems and incidents to be solved quickly, as well as the pro-active verification of the performance of the systems. Also included are advisory information, e.g. To the application and further development of the software.
(3) Business hours are Monday to Friday, 9am to 6pm. No business hours are Saturday, Sunday, the German-wide and Lower Saxony holidays, Christmas Eve, New Year's Eve. German time is applied.
(4) The Agency is obliged to respond to a customer's support request within the agreed-upon response time, by telephone or by e-mail, and to process this ("performance"). The scope of the services to be provided by the Agency in detail is set out below.
(5) Support requests should, in principle, be addressed to the Agency only on the individual way agreed.
(6) Within the agreed-upon response time, the Agency shall contact the customer at the indicated e-mail address / telephone number to confirm the acceptance of the processing, to obtain further relevant information and / or to propose a solution
(7) There is no guarantee or responsibility as to the solubility of a problem. The notification of a solution or the announcement that a support request can not be solved does not have to be done within the contractually agreed reaction time. The customer is not entitled to a solution or restoration period.
(8) The Agency's performance is limited to assisting with specific problems arising from the maintenance of the supported software and the systems provided by the customer.
(9) The Agency 's contractual obligations continue to be limited to supporting specific problems with the services, programs and packages resulting from the terms of the support contract. Except for the agency's performance, any programming that goes beyond what is necessary to deal with problem-solving and system maintenance, as well as the development of complex IT concepts, feasibility studies and the like.
(10) The Agency shall provide its services in different support levels as defined in the specific contract.
(11) Response time is the period between the receipt of the request, interrupted by periods outside the agreed support level and the Agency's response.
(12) An emergency occurs when a productive server or other business-critical systems are not available and the system can not be remedied directly, and these systems are covered by the support contract. For high-availability systems, an emergency occurs when the entire system is no longer available. The failure of a single system without affecting the overall system does not constitute an emergency.
(13) Compliance with the agreed response time requires the timely receipt of all documents to be supplied by the customer, as well as compliance with the agreed payment terms and other obligations by the customer. If these conditions are not fulfilled in due time, the deadlines are extended accordingly; This shall not apply if the Agency is responsible for the delay.
(14) If non-observance of the time limits is due to force majeure, e.g. Mobilization, war, turmoil, or similar events, e.g. Strikes, lockouts, official interventions, shortage of energy and raw materials, transport bottlenecks, faultless operating disabilities, Such as the failure of the supply of electricity, disturbances on the Internet, fire, water, electronic damage, breakdown of telecommunications networks or computers and machine damage, the deadlines are extended appropriately.
(15) A hundred (100)% increase in the hourly rate is calculated for non-business support and without a corresponding support agreement. The Agency may provide such services at its sole discretion. A repeat performance does not result from a good performance.
(1) The Client shall assist the Agency in the performance of its contractual obligations. This includes, in particular, the timely provision of information, materials, data ("content") as well as hardware and software, as far as the customer's contribution requires this.
(2) Content to be provided by the customer shall be provided in a common, directly usable, digital format.
(3) For the benefit of profitability, the parties agree that the customer is responsible for testing and verifying the work performed beyond a basic inspection. This also applies to the further consideration of the work performed in the overall system. If the customer wishes to test, check and, in the future, observe the work done, this must be agreed and remunerated separately.
(4) If the customer recognizes that his own information, requirements or contents are incorrect, incomplete, ambiguous or unworkable, he shall immediately notify the latter and the consequences of the agency which he / she recognizes
(5) Unless otherwise expressly agreed otherwise, the customer's contributions to the contract shall be made without special consideration.
(6) The customer shall provide the Agency, where necessary, with all necessary access data.
(7) Prior to the start of the maintenance by the agency, the customer should carry out a data backup, as it is known that maintenance work is expected to result in a loss of data. The Agency will not provide independent backups.
(1) If the customer wishes a change to the contractually determined scope of the services, he shall notify the Agency in writing. This will examine the customer's request for change and its impact on the existing agreement. The examination shall be reimbursed with the usual hourly rate of the Agency.
(2) The Agency shall communicate the results of the test to the customer. In doing so, it will either submit a detailed proposal for the implementation of the request for amendment or explain why the request for amendment can not be implemented.
(3) If the change is feasible according to the outcome of the examination, the Contracting Parties will vote on the content of the proposal for the implementation of the request for amendment. If an agreement is reached, the contract is amended to this extent. If no agreement is reached, the original scope of delivery remains the same.
(4) Agreed dates shall be postponed, if and to the extent that they are affected by the amendment, taking into account the duration of the examination, the vote on the proposed amendment and, where appropriate, the change requests to be executed plus an appropriate start-up period. The Agency will communicate the new deadlines to the customer.
(5) If the Agency wishes to amend the contractually defined scope of the services, it shall notify the customer in writing and submit a proposal for implementation. This applies in particular to work, the realization of which was sufficiently indeterminate during the preparation of the contract and the cost estimate. The Agency is responsible for the expenses related to the preparation of the proposed amendment
(6) If there are findings in the course of the ongoing work that the expenditure associated with the implementation will significantly exceed the expected expenses and if the cause is to be seen in an undefined description of the tasks owing to the effort involved, Additional costs after checking the feasibility of the work and the resulting increase in the cost of the work, are communicated to the customer and must be borne by the customer. The customer may also decide not to carry out the further work. The remuneration is then based on the expenses incurred up to this point in time.
(1) After delivery of a service product, the customer is obliged to take acceptance.
(2) At the request of the Agency, the customer shall also be obliged to accept drafts and intermediate results if they can be reasonably judged on their own behalf.
(3) If the acceptance fails, the customer shall provide the Agency with a list of all defects which prevent the acceptance. After the expiry of a reasonable period, the Agency shall provide a deficient and acceptable version of the service. In the course of the subsequent test, only the recorded defects will be examined, insofar as they can be the subject of an isolated test.
(4) The customer can not refuse the acceptance due to minor defects. However, acceptance shall be subject to the Agency's immediate removal of defects. These deficiencies shall be listed in an inspection report.
(5) If the customer leaves a reasonable deadline after acceptance test, normally 7 working days, without any reaction, the service shall be deemed accepted. The deadline of 7 working days may be shortened by express reference by the Agency for material reasons, if a delayed release leads to the project, reached terminated subsections, or similar would be jeopardized.
(6) Change requests after release represent a change in performance.
(1) The Agency shall operate an electronic customer area whose access may be made available to customers. The customer receives an individual password, which allows access to the customer area. The customer is not allowed to disclose the password to third parties and has to keep it carefully in order to rule out abuses.
(2) The customer is obliged to notify the agency immediately if the password has been lost or if it becomes known to the unauthorized third parties that the password has been obtained. If the customer does not provide evidence that a third party has used the access to the customer area without his consent, all declarations made via the access are credited to the customer.
(1) The Agency shall not be responsible for any delays in performance due to circumstances within the customer's area of responsibility (eg non-timely provision of services) and force majeure (eg strike, lockout, general disruption to telecommunications). They entitle the Agency to postpone the provision of the services concerned by the duration of the disability plus a reasonable start-up period. The Agency will notify the Customer of any performance delays due to force majeure.
(2) If the assertion of the rights of the customer presupposes the setting of an appropriate period of grace, this shall be at least two (2) weeks.
(3) Terminations which lead to the liability of the Agency to pay compensation shall be agreed separately and expressly.
(1) The Agency shall grant the Customer the right to use the services for the purposes underlying the contract to the contractually agreed extent on the full payment of the agreed remuneration to the services provided.
(2) If the customer intends to use the work designed or designed by the Agency in whole or in part beyond the originally agreed upon purpose or scope, a separate fee shall be required for the compensation of the rights of use.
(3) Any transfer of the rights of use or the granting of sublicenses shall only be permitted if expressly agreed upon or arising out of the purpose of the contract.
(4) If the Agency's performance contains open source components, the rights are transferred only to the extent and in accordance with the respective open source license. The Agency explicitly points out that the open source components may only be used, edited and subject to orders within the scope of the respective license.
(5) Without separate permission, the customer is not entitled to modify or process the services rendered. Amendments and revisions necessary to achieve the purpose of the contract shall be excluded.
(6) The customer is obliged to name the agency on the completed work and its duplicates.
(7) Any suggestions made by the Customer or his other co-operation shall not affect the amount of remuneration. They also do not constitute co-authorship.
(8) The customer shall not be granted any property or use rights to drawings, drafts, layouts, software and other materials and documents submitted in the context of offers and contractual negotiations. The transfer to third parties requires the express consent of the Agency.
(9) Without separate agreement, the Agency shall not be obliged to publish intermediate results, drafts, layouts, source files, etc. leading to the contractual project work.
(1) If, at the request of the customer, the work is dispatched to a place other than the place of performance, the risk of accidental destruction or accidental deterioration shall be transferred to a freight forwarder or freight carrier , To the customer regardless of whether dispatch is from the place of performance.
(2) If the means of transport and the means of transport are not agreed individually, the agency can choose the most suitable variant for the transit and means of transport. The Agency will take due care of the customer's readily identifiable concerns. If the customer requests a special packaging, he shall bear the extra costs resulting from this.
(1) The Agency will normally order the necessary external services to fulfill the order in the name and on the account of the customer.
(2) The customer shall be obliged to grant to the Agency, on request, the requisite powers of attorney and to provide authorization certificates.
(3) The Agency shall have the right to carry out necessary services at its own discretion.
(1) Unless otherwise expressly agreed, all services must be paid in cash and without deduction within 10 (10) days of the invoice date. With regard to the conditions and the consequences of the delay, the statutory rules apply.
(2) Offsetting against counterclaims is only permitted if these are indisputable or legally binding, unless these are claims for completion or rectification. In addition, the customer may set off against a counterclaim which has replaced a right of retention granted to him from this contractual relationship.
(3) The Customer's right of retention is limited to the same contractual relationship and in the case of defects only in the amount of double the expenses necessary to eliminate the defects. The customer may exercise his right of retention, however, on the basis of claims which are undisputed or legally established.
(4) If the customer is in arrears with the payment, the agency can refuse performance and demand default interest of nine (9)% above the base rate of § 247 BGB. The date of payment shall be the date of the payment on the account of the Agency. The right to assert any further damage is reserved.
(5) If circumstances are known which, in accordance with the commercial merit of the Agency, give rise to justified doubts as to the creditworthiness of the customer, including those which were already known at the time the contract was signed, Without prejudice to further legal rights, the Agency shall be entitled to discontinue the work on current orders in these cases and to demand advance payments or the provision of collateral for outstanding services and to rescind the contract after an unsuccessful lapse of an appropriate period of grace for the performance of such collateral And to claim damages.
(1) The customer is entitled to supplementary performance in the event of defective delivery. The Agency is obliged, at its discretion, to supplementary performance in the form of a defect clearance or delivery / manufacture of a new defect-free thing / service. In the case of a replacement delivery, the customer is obliged to return the defective item / service.
(2) If the supplementary performance fails, the customer may, at his discretion, reduce the price or withdraw from the contract without observing a time limit. This also applies if the agency refuses the supplementary performance or the supplementary performance is unacceptable to the customer.
(3) Defects shall be reported in writing by means of a comprehensible description of the fault symptoms, as far as possible, by means of written records, hard copies or other documents illustrating the defects. The complaint is intended to allow the reproduction of the error.
(4) If the defect is based on the defectiveness of the product of a third party and if the latter is not acting as the Agency 's fulfillment aid, the Agency merely submits a third - party certificate to the customer Agency against the third party. This shall not apply if the defect is based on an improper handling of the product of the third party for which the agency is responsible. If the customer can not assert his claim against the third party out of court, the subsidiary liability of the agency for deficiency claims remains unaffected.
(5) Alterations or extensions to the Agency's services, performed by the customer himself or by a third party, do not affect the customer's claims for defects, unless the customer proves that the change or extension is not the cause of the defect , The Agency shall also not be liable for defects resulting from improper use, operating conditions or the use of unsuitable equipment by the customer.
(6) The period of limitation for deficiency claims shall be one (1) year from acceptance.
(7) The Agency may refuse supplementary performance until the customer has paid the agreed remuneration, minus a part which corresponds to the economic importance of the defect, to the Agency.
(1) The Agency shall be liable without limitation for deliberate or grossly negligent damage caused by the Agency, its legal representatives or managerial staff, as well as deliberate damage caused by other means of fulfillment.
(2) The Agency shall be liable without limitation for deliberate or negligent damage resulting from injury to life, body or health by the Agency, its legal representatives or vicarious agents.
(3) The Agency shall be liable for damage caused by a lack of assured characteristics up to the amount covered by the purpose of the assurance and which was apparent to the Agency when the assurance was given.
(4) The Agency shall be liable for product liability damage in accordance with the provisions of the Product Liability Act
(5) The Agency shall be liable for damage resulting from the infringement of cardinal obligations by the Agency, its legal representatives or vicarious agents; Cardinal obligations are the essential obligations which form the basis of the contract which were decisive for the conclusion of the contract and on which the customer may rely. If the Agency has slightly violated these cardinal obligations, its liability is limited to the amount that was typically foreseeable by the Agency at the time of the respective service. The same liability scale applies to the liability for gross negligence of other vicarious agents.
(6) The above rules also apply to the personal liability of employees, representatives and vicarious agents.
(7) The customer is responsible for backing up his / her data (backup), as far as this is not expressly part of the agency's performance. This includes, in particular, the safeguarding of the data to be maintained by the Agency. Insofar as the Agency creates a backup of the data for its own security, no guarantee or a legal claim of the customer for a proper execution arises. Such a self-created backup will be immediately deleted after completion of the work.
(8) The Agency is not liable for errors and malfunctions in open source systems used by customers. Also not for any requirements expected by the customer that the Agency has not explicitly confirmed.
(9) Where there is a technical development of the software or the system in which it is embedded, dependencies on the elements already implemented in the system and previously implemented by the Agency may be undermined.
(1) The Agency is not responsible for any materials or content provided by the Customer. The Agency is under no obligation to review the materials and content for possible legal violations, but it will prompt the customer in good time to any significant risks that can be readily identified in your view.
(2) The services provided by the Agency do not contain any legal or legal advice (eg trademark, copyright, data protection, competition law, legal status) and fulfillment of statutory information requirements of the customer (eg supplier identification, data protection declaration, consumer information in remote sales contracts, etc.). ).
(3) If the Agency provides the customer with legal patterns, for example imprints, conditions of use and data protection, these shall be understood as templates. It is up to the customer to adapt the patterns to their own legal requirements.
(4) In the event that the Agency itself is used on the basis of the materials and contents provided by the Client, the Client shall indemnify the Agency.
(5) The customer acknowledges that he must regularly check his website through a person who is qualified to do so.
(1) All physical deliverables shall remain the property of the Agency from their business relationship with the customer, even if payments for the specific service have been provided
(2) In the case of enforcement measures, the customer shall notify the Agency without delay.
(3) If the realizable value of the collateral for the agency exceeds its requirements not only temporarily by a total of more than 10 per cent, the Agency shall, at the request of the customer, release securities of the appropriate amount at its discretion.
(1) The Contracting Parties agree on the confidentiality of the content and the terms of the contract and the knowledge gained in its handling.
(2) Confidentiality shall also extend beyond the termination of the contract.
(3) If a Contracting Party so requests, the documents which it submits to it shall be issued to them after the termination of the contract, provided that the other Contracting Party can not claim any legitimate interest in these documents.
(4) Press releases, information, etc., in which one party to the other refers to the other, are only permitted by prior written voting - also by e-mail. Notwithstanding this, the Agency may, on its Web site or in other media, name the Client as a reference customer and reproduce and disseminate the services provided in the course of its own promotion and publicly disclose them to the public for demonstration purposes unless the Customer is entitled to a contrary right Interest.
(5) The customer is informed that email is an open medium. The Agency accepts no liability for the confidentiality of emails. At the request of the customer, the communication can be managed via other media, the additional costs are borne by the customer.
(6) The customer shall not recruit any staff from the Agency. This prohibition is valid for up to one year beyond the end of the business relationship.
(1) The Agency and the Customer undertake to comply with the provisions of the Federal Data Protection Act.
(2) The Agency shall be entitled to store the data relating to the specific contract and to process and use such data for operational purposes in accordance with the legal requirements.
(3) The transfer to third parties is permissible if and insofar as this - for instance when registering domains or similar. - Subject of the contract.
(4) In so far as the Agency has access to the data stored and processed by the customer, the customer shall be subject to data protection requirements.
(1) In the absence of any other agreement, the place of performance shall be the place where the Agency is established.
(2) Exclusive jurisdiction for all legal disputes arising directly and indirectly from the contractual relationship as well as from its emergence and effectiveness is Hildesheim, provided that the customer is a merchant, a legal person of public law or a public special fund. This also applies to disputes arising from the contractual relationship, bills of exchange and checks.
(3) German law shall apply to all legal questions arising from the order and its settlement, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
(4) Should one or more specific provisions of this Agreement be invalid for any reason, the validity of the remaining provisions shall remain unaffected. In so far as this contract shows gaps in the regulations, they are to be filled by a regulation which takes account of the economic purpose of the contract.