Special provisions for services
1. Scope of application of the General Terms and Conditions
Any services of the provider in addition to the use of the Portal that is governed by the foregoing General Terms and Conditions shall be agreed upon with the User in separate contracts. The foregoing General Terms and Conditions shall apply also to those contracts unless it is obvious or stated explicitly that the General Terms and Conditions solely refer to the use of the Portal. In addition, the following regulations shall apply.
2. Conclusion of contracts
Services / work performances may be contracted exclusively in text form or written form. The Provider shall endeavour, but shall not be obliged, to accept any corresponding contracts. If a User submits a legally valid quotation to the Provider that is directed at a contract governing the provision of a service, the User shall be bound by this quotation during a period of seven business days.
3. Subject matter of the contracts, services of the Provider
(a) The subject matter of the contracts and the services of the Provider shall be indicated exclusively in the individual contractual agreement and in the service descriptions and/or other documents included in it.
(b) The provision of services by third parties who have been retained the Provider in accordance with the Provider’s own professional discretion and that are equivalently qualified shall be permitted if, from the User’s point of view, there is no objective important reason against the person/company of the subcontractor.
4. Change request
(a) The User shall be permitted to request changes to the contractual services, in particular if the performance requirements change during the performance of the contract. The Provider shall comply with the change request if this is reasonable for the Provider in the scope of their operating capacity and if their original contract is not jeopardised thereby. Each change request shall be formulated in text form and shall first be presented to the Provider for examination and implementation.
(b) In principle, any changes to services as described in item (a) above shall be remunerated, even if the parties have not entered into an express agreement in that regard. The remuneration shall be paid for the extra work of the Provider caused by the change request compared to the initially agreed service. The Provider shall indicate the extra work transparently in their statement of expenses. If the User does not state any reasonable doubts regarding the correctness of information on extra work in the statement of expenses, it shall be assumed that the statement of expenses is correct.
(c) All other services rendered by the Provider that are based on subsequent change requests and requests for additions shall also be considered as extra work that shall be remunerated additionally. This shall apply in particular if the Provider must carry out, after the approval of a complete or partial service, changes or additions that refer to services that have already been accepted and approved. The same shall apply if an approval has still not been carried out although the preconditions for an acceptance are met already.
5. Deadlines, due dates
(a) In principle, only the deadlines contractually agreed upon in written or text form shall apply to services and deliveries of the Provider.
(b) In cases of doubt, deadlines agreed upon in accordance with item (a) shall only form the basis for due dates regarding the contractual services/deliveries and therefore constitute neither relative fix liabilities [relative Fixschulden] as defined by Section 323, subsection 2, number 2 of the German Civil Code nor absolute fix liabilities [absolute Fixschulden] of the Provider unless the parties have agreed upon such liabilities. Furthermore and contrary to Section 286, subsection 2, number 1 of the German Civil Code, the exceedance of these deadlines by the Provider shall give rise to a default only if a corresponding reminder has been submitted.
(c) Determined deadlines for completions or deliveries shall not be binding on the Provider if the Provider was unable to meet the deadlines for reasons that the User was solely or mainly responsible for. This shall apply in particular if the User violates the User’s duties to cooperate and if the User’s change requests, which require an adjustment of the time schedule, are implemented.
(a) The remuneration agreed upon in the contract shall be paid.
(b) If, pursuant to the relevant contract or these General Terms and Conditions, any services or extra / additional work of the Provider shall be remunerated in accordance with an agreed-upon hourly rate. Any additional work to be performed free of charge within the scope of the warranty obligations shall remain unaffected thereby. The hourly remuneration shall be invoiced in 5 minutes units (1/12 of an hour) as commenced.
(c) Any services of the Provider and any possible rights of use regarding these shall remain in the ownership or with the Provider until the contractual fee is completely paid.
7. Obligations of the User
(a) The User shall be obliged to support the Provider in performing their services with appropriate and reasonable efforts if the contribution by the User is necessary and expedient for performing the contract without delays and defects. All of the User’s obligations to contribute shall be actual obligations on the part of the User.
(b) The User shall notify the Provider without delay of any disturbances and defects of the contractual services, support the Provider to a reasonable extent in the determination of the causes and their removal and take all reasonable measures for preventing and reducing a damage.
(c) If the Provider holds the view that the User does not fulfil any cooperation and supply duties in accordance with the contract, the Provider shall inform the User of this without delay and shall set for the User an appropriate grace period regarding the performance of the cooperation or supply; if applicable, the Provider shall inform the User of any possible adverse consequences of the failure to cooperate or supply in accordance with the contract during the set grace period.
(d) As long as the cooperation or supply has not been performed in accordance with the contract, the Provider shall be completely or partially released from the corresponding duty to perform to the extent that the Provider depends on the relevant cooperation or supply. The Provider shall not be responsible for any defaults in performance caused by the User’s failure to cooperate or supply in accordance with the contract.
(e) The Provider may invoice separately any extra work caused by the failure to cooperate or supply in accordance with the contract. Any further claims by the Provider shall remain unaffected.
(f) If a project should be interrupted for more than 10 days due to the customer’s failure to cooperate or supply in accordance with the contract, the Provider shall be permitted to submit to the customer an invoice requesting a partial payment. The amounts of the partial payments shall depend on the value of the services already performed by the Provider in accordance with the calculation.
(g) If the Provider submits to the customer suggestions, drafts, test versions or the like, the customer shall examine them swiftly and carefully to the extent that this is reasonable. The customer shall notify the Provider in any case without delay of any complaints and change requests.
(h) If tests run or acceptance tests, presentations or other meetings become necessary or expedient, the customer shall send experienced employees, who shall be authorised to take any necessary or expedient decisions, in order to participate in such meetings.
8. Acceptance of software-related services
The productive use of the developed software shall be equivalent to the acceptance required by law (Section 640 of the German Civil Code).
9. Rights of use
(a) Unless otherwise agreed by the parties, the Provider shall grant to the User a right of use – which shall be unlimited in terms of time, location, and content – with regard to the work performance contractually owed by the Provider.
(b) The User shall hereby grant to the Provider, for the duration of the contract, a non-exclusive, non-transferable right of use in order to use the intellectual property of the User during the term of the relevant service to the extent that this is necessary for performing contractual services in relation to the User. The creation of copies of the intellectual property of the User and processing or changing these shall only be permitted if this is necessary for performing the contractual services. Subject to an individual agreement to be concluded on a case-by-case basis, granting any sublicenses or the use by third parties shall be excluded.
(a) If the law governing contracts for work and services, governing sale and purchase agreements or governing lease agreements should be applicable, the Provider shall be liable for defects in accordance with the applicable statutory warranty provisions unless the parties have agreed upon regulations deviating therefrom that are set out below.
(b) The User shall examine the services performed by the Provider without delay after their performance by the Provider to the extent that this is feasible in accordance with the orderly course of business. Any defects that are noticeable during the examination shall be reported without delay. Any defects that are not noticeable during the examination shall be reported without delay after they have been noticed. Such a report shall be required to be made in text form. If the principal fails to report a defect, any claims based on defects shall be excluded.
(c) If a service to be performed in accordance with this contract is defective, the Provider shall be obliged to render a supplementary performance, which may consist in providing an alternative solution or a workaround.
(d) The Provider shall be entitled to choose whether the supplementary performance shall consist in the removal of the defect or the delivery of an item that is free of defects. Only when the supplementary performance has failed, the User shall have the right to reduce the remuneration or to rescind the contract.
(e) Claims based on defects shall become statute-barred after the expiry of twelve months. Claims for damages, which are based on defects, against the Provider, their statutory representatives or performing agents due to a damage arising from injury to life, body or health, claims for damages based on intent or gross negligence, claims arising from the German Product Liability Law or arising on the basis of guarantees and claims based on the infringement of essential contractual ancillary duties shall be excluded thereof.
(f) The foregoing claims shall lapse if the User or third parties perform changes to services to which the Provider has not granted their express prior consent. This shall not apply only if the User proves that occurring errors or malfunctions were not caused by the changes and that the changes have not complicated the identification and the removal of the error.
(g) If an alleged defect of work, rental or purchase services performed by the Provider may, after corresponding examination, not be related to a liability for defects on the part of the Provider and if the customer could have noticed that, the customer may be charged for the Provider’s expenses (at the applicable remuneration rates) incurred for the verification and removal of the defect.
11. Imitation protection, prohibition of competition
(a) The User shall undertake to refrain from imitating in any form the services sold to the User by the Provider or otherwise dedicated to the User by the Provider for use or any other services of the Provider; the User shall in particular refrain from designing, developing, producing and distributing software with a similar purpose of use, similar technological features, a similar graphical surface design (user interfaces) and/or a similar program code, and from enabling third parties to perform the aforementioned activities.
(b) For each case of a culpable infringement of the foregoing prohibition of imitation, the User shall pay a contractual penalty to be determined by the Provider using equitable discretion and the appropriateness of which shall be examined by the competent court in cases of dispute.
(c) The Provider shall be prohibited, during the term of this contract, from offering services and/or products and performing other activities to the extent that this constitutes a specific threat of a not only insignificant competition that is disadvantageous for the customer.
Version of August 2022