General Terms and Conditions
Section 1: General
- These General Terms and Conditions (hereinafter referred to as "GTC") apply to all contracts between ETECTURE and the customer for the provision of services in the area of software development in business transactions with entrepreneurs. These GTCs of ETECTURE apply exclusively. Conditions of the customer that conflict with or deviate from these GTC are not recognised unless ETECTURE has expressly agreed to their validity. This also applies if ETECTURE unconditionally performs the services with knowledge of the customer's conflicting or deviating terms and conditions.
Section 2: Services
- ETECTURE shall provide services to the customer based on the offer submitted by ETECTURE and confirmed by the customer.
- These Terms and Conditions apply to the offers as binding provisions between the parties. If the provisions of the offer and the Terms and Conditions contradict each other, the provisions of these Terms and Conditions shall take precedence. The parties can only agree different provisions in an offer if the offer expressly refers to the deviation from these Terms and Conditions.
Section 3: Cooperation and duties to cooperate
- The parties shall work together in good faith. If a party realises that information and requirements, whether its own or those of the other party, are incorrect, incomplete, unclear or infeasible, it must immediately inform the other party of this fact and any identifiable consequences. The parties shall then seek a solution which reflects their interests and, where necessary, shall strive to achieve this solution in accordance with the provisions regarding changes to performance.
- The customer shall support ETECTURE with the fulfilment of the contractually owed services. This in particular includes the timely provision of information, expert staff, means of communication and connections, in addition to hardware and software, and shall make rooms accessible if necessary. The customer shall instruct ETECTURE in detail about the circumstances to be observed when working on its premises and at its technical facilities. The customer shall undertake cooperation activities at its own expense.
- The customer shall ensure that all cooperation services necessary for the provision of the agreed service are provided in good time and completely and free of charge for the contractor. The cooperation services to be provided by the customer are a prerequisite for the contractual performance of ETECTURE.
- ETECTURE shall provide timely information about the necessary cooperation services, and these shall only become binding for the customer if they have been confirmed by the customer (an email is sufficient). If the customer does not provide the cooperation services, the resulting fee increases or postponements shall be at the customer’s expense.
- If access to the customer's communication and data processing systems/servers is required for ETECTURE to provide its services, the customer shall ensure this access is available. They shall be accessed via a remote connection for IT service providers (e.g. through Remote Desktop Protocol (RDP), Teamviewer). The customer shall grant ETECTURE the required admin rights in a timely manner and provide the required passwords for downloading new software releases and managing the server.
Section 4: Contact persons
- The parties shall each designate a contact person and their deputy. For the respective other party, these individuals are the exclusive point of contact for all arrangements and agreements in connection with matters which relate to the legal framework of the cooperation. The parties hereby confirm that the contact persons and deputies to be designated are comprehensively authorised to make all decisions relating to the cooperation.
- The parties are free to replace the designated contact persons and their deputies with other individuals. The respective other party must be informed about changes without delay in each case, either in writing or by email. When making changes, the parties shall ensure that this does not result in any disruption to the cooperation and that newly designated individuals have all information and expertise necessary for the smooth running of the project.
Section 5: Remuneration
- The remuneration is specified in the respective offer. As a rule, the offers are only cost estimates. Expenses and related prices mentioned in an offer are only binding if they are expressly designated as binding (e.g. "fixed price").
- If the parties have not reached an agreement regarding the remuneration within the scope of an individual order, the remuneration shall be determined on the basis of the current valid ETECTURE standard price list.
- If the offer does not contain any deviating or supplementary agreements, ETECTURE is entitled to request payment from the customer as follows:
- 30% of the agreed total after commissioning;
- 50% following project progress in accordance with a monthly statement of accounts and with a specific description of the services rendered;
- 10% of the total amount agreed upon presentation for acceptance;
- 10% of the agreed total after acceptance.
- In the case of services that ETECTURE does not provide in coordination with the customer at their branches, travel expenses are calculated separately in accordance with the current valid ETECTURE standard price list.
- ETECTURE’s invoices are payable within 14 days of the invoice date.
- All amounts are exclusive of VAT.
Section 6: Additional services, supplements and amendments
- All ETECTURE services which result from subsequent changes and supplementary requirements of the customer are considered to be additional services. Supplementary requirements are generally to be requested in writing. ETECTURE is not obliged to make changes or additions that relate to services that have already been accepted. This also applies if the respective project has not yet been accepted, but the requirements for acceptance have already been fulfilled.
- If ETECTURE decides to make changes and additions to works that have already been accepted, these shall be agreed and executed as new orders.
- In the case of change requests that can be reviewed within one working hour and are expected to be implemented within eight working hours, ETECTURE can refrain from following the procedure described in Section 6. (4)–(7).
- ETECTURE shall immediately check the effects of the requested change, in particular with regard to remuneration, additional work and deadlines. If ETECTURE recognises that the services to be rendered cannot be performed or can only be carried out with a delay due to the scope of the review, ETECTURE shall inform the customer without delay and point out that the change request can only be reviewed if the originally agreed services are postponed for the duration of the change request review. If the customer agrees to this postponement, ETECTURE shall review the change request without delay. The change process shall otherwise end.
- Once the change request has been reviewed, ETECTURE shall explain the effects on the concluded agreements to the customer. The presentation shall include either a detailed proposal for the implementation of the change request or information about why the change request is technically not feasible.
- The parties shall agree on the content of any proposal for the implementation of the change request without delay, and the results of such successful negotiations shall be added to the text of the agreement relating to the change as an addendum agreement to the relevant offer.
- If no agreement is reached or if the change procedure ends for another reason, the original scope of services shall remain unchanged. The same applies if the customer does not agree to a postponement of the services in order to perform the review in accordance with Section 6 (4).
- The dates affected by the change procedure shall be postponed as required, taking into account the duration of the review, the duration of the agreement regarding the change proposal and, if necessary, the duration of the change requests to be implemented plus a reasonable standard start-up period. ETECTURE shall notify the customer about any new proposed dates. The parties shall then agree on the new dates.
- The customer shall bear the expenses resulting from the change request. This in particular includes checking the change request and creating a change proposal. Unless otherwise stipulated in the relevant offer, the expenses are calculated in accordance with the remuneration rates specified in Section 5 (2) of these Terms and Conditions.
- ETECTURE is entitled to slightly change the services to be rendered in accordance with the offer if the change is absolutely necessary and reasonable for the customer. ETECTURE shall coordinate such changes with the customer before implementing them.
Section 7: Withdrawal and termination
- The customer can only withdraw due to a breach of duty that does constitute a work defect if ETECTURE is responsible for this breach of duty.
- Termination in accordance with Section 649 of the German Civil Code (BGB) is excluded.
Section 8: Rights of use and copyright
- The customer shall be granted the non-exclusive right, unlimited in terms of time and location, to use all of the results of the project, in addition to the software tools and modules developed and used by ETECTURE during the course of the creation of the service. Unless agreed otherwise by the parties, the intended use includes the right to load, display and run the software, even if this requires the temporary or permanent reproduction of the software. Furthermore, the rights under Section 69d (2) of the German Copyright Act (UrhG) and Section 69d (3) UrhG in addition to the rights and obligations under Section 69e UrhG are applicable to the customer. Further use, in particular free editing of the software, is not permitted.
- The customer shall have no administrative access to the software system and no access to the source code. The customer is not authorised to use the source code.
- The granting and/or transfer of the rights of use provided for in (1)–(2) to third parties is not permitted unless the customer completely relinquishes its own rights of use.
- The customer shall be granted a right to use standard software and standard software modules from third-party providers in accordance with the respective licence provisions of the third-party provider.
- The customer shall also be granted the right to use open source software and third-party, externally licensed media content (e.g. image and layout material) in accordance with the relevant licence provisions. ETECTURE shall inform the customer in good time before the use of open source software or content that falls under this regulation and shall obtain approval for its use.
- The granting of rights of use shall only become effective upon full payment of the agreed remuneration as specified in the offer.
- The customer expressly declares that it has all necessary rights of use for the software, media content ,etc. provided by the customer which is to be processed by ETECTURE on behalf of the customer in connection with this agreement.
Section 9: Acceptance
- As soon as ETECTURE has created a concept or functional specification that meets the contractual requirements, the customer shall accept it by submitting a declaration in text form (Section 126 b BGB) within a maximum of seven days after submission.
- As soon as ETECTURE has completed a project and this meets the contractual requirements, ETECTURE shall inform the customer in text form that it can be accepted (Section 126 b BGB). The customer is obliged to check and accept the declaration in writing within 14 days of receipt. Any defects must be reported to ETECTURE in writing during the acceptance report. ETECTURE shall remedy these defects within a reasonable period and make the project available for acceptance again.
- If the acceptance period expires without ETECTURE receiving a declaration of acceptance or a notification of any shortcomings, the work product shall be considered to have been accepted free of defects at the end of the period. The work product is also deemed to have been accepted free of defects if the customer puts it into operation, publishes it or pays the agreed remuneration.
- The acceptance declaration cannot be refused due to immaterial defects. Defects that do not or do not significantly impair usability are immaterial.
Section 10: Warranty
- The customer is aware that software cannot be created entirely free of defects. Insignificant defects therefore do not prevent the agreed use of the software.
- ETECTURE guarantees that the work products provided in accordance with the agreement by ETECTURE are free of third party property rights and, to the knowledge of ETECTURE, there are no other rights that restrict or exclude contractual use. ETECTURE hereby releases the customer from all possible third-party claims.
- If contractual use is impaired by third party property rights, the customer must notify ETECTURE immediately after becoming aware of this. In such a case, ETECTURE has the right, to a reasonable extent and in consultation with the customer and at ETECTURE's discretion, to change the contractual services so that they fall outside the scope of protection but nevertheless comply with the contractual provisions, or to arrange authorisation so that they can be used without restrictions and with no additional costs for the customer in accordance with the agreement.
- ETECTURE does not guarantee that the created work products retain their contractually agreed suitability under the changed circumstances in the event of general technological changes (e.g. browser or server technology, plug-in operating systems, W3C standards, online access, etc.). There is no entitlement to subsequent adjustment.
- To the extent possible and reasonable for the customer with regard to the effects of the defect, ETECTURE can provide the customer with an interim solution to work around the defect until it is finally remedied.
- The warranty claim does not apply if the customer changes work products itself or has them changed by third parties without the consent of ETECTURE, unless the customer can prove that the defects in question are not caused by the changes made by it or the third party or by the failure to perform maintenance/updates.
- The warranty period is one year and begins upon acceptance of the work results. The statutory limitation periods for claims due to bodily harm, claims based on the Product Liability Act (Produkthaftungsgezetz) and warranty claims remain unaffected.
Section 11: Liability
- ETECTURE is liable for damages incurred by the customer in connection with the provision of the service, insofar as this is based on wilful or grossly negligent behaviour.
- ETECTURE is also liable for damages incurred by the customer in connection with the provision of the service, insofar as this was caused by the negligent breach of an essential contractual obligation. In this case, ETECTURE's liability is limited to the damage typically foreseeable when the agreement was concluded.
- The abovementioned limitations of liability do not apply to liability for personal injury and liability in accordance with the Product Liability Act.
- If ETECTURE creates the work results according to the instructions of the customer and/or on the basis of content supplied by the customer, ETECTURE accepts no liability for the work results being legally compliant. ETECTURE accepts no liability for the content provided by the customer. It is the customer's responsibility to have the services or work to be performed by ETECTURE legally checked before they are published.
- The customer is obliged to take effective measures to prevent and reduce damages. ETECTURE is not liable for the loss of data and/or programs if as the damage is due to the fact that the customer failed to perform data backups and thereby ensured that lost data can be restored with reasonable effort.
- Liability is excluded for defects in the customer's programs that existed before they were taken over by ETECTURE. The decisive factor is the processing status at the time when ETECTURE's work began.
- The above regulations also apply to ETECTURE's vicarious agents.
Section 12: Deadlines
- Deadlines for the provision of services are only considered to be binding if they are confirmed in writing by ETECTURE and designated as binding in writing.
- Delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions in telecommunications, etc.) and circumstances in the customer's area of responsibility (e.g. failure to provide cooperation services in good time, delays by third parties attributable to the customer, changes to services, etc.) are not the responsibility of ETECTURE and entitle ETECTURE to postpone the provision of the relevant services by the duration of the disruption plus a reasonable start-up period. ETECTURE shall notify the customer of delays in performance due to force majeure.
Section 13: Data privacy
- ETECTURE undertakes to comply with the statutory provisions regarding data privacy, in particular to only collect, process and use personal data for the purpose agreed with the customer.
- ETECTURE undertakes to only use personnel who have agreed to data privacy.
- ETECTURE furthermore undertakes to only entrust subcontractors/freelancers with the processing of personal data if they have previously agreed in writing to comply with the data protection regulations.
Section 14: Confidentiality, press releases
- The documents, knowledge and experience provided to the other party must only be used for the purposes of the cooperation and may not be made accessible to third parties unless they are intended to be made available to third parties or are already known to the third parties.
- Third parties do not include any auxiliary persons called in to execute the contractual relationship, such as freelancers, subcontractors, etc.
- Furthermore, the parties agree to maintain confidentiality regarding the knowledge gained during the execution of a project.
- This duty of confidentiality also applies beyond the termination of the contractual relationship.
- If requested by one of the parties, the documents it has submitted, such as strategy papers, briefing documents, etc., must be returned to the party after the contractual relationship has ended, unless the respective other party can assert a legitimate interest in these documents.
- ETECTURE may publicly name projects carried out for the customer as a reference.
Section 15: Prohibition of enticement
- The customer undertakes not to entice ETECTURE employees or to employ them without the consent of ETECTURE for the duration of the parties' cooperation and for a period of one year thereafter.
- For each case of violation of the prohibition of enticement, the customer shall pay ETECTURE a contractual penalty, the amount of which is at ETECTURE's discretion and which can be reviewed by the competent court at the request of the customer in the event of a dispute.
Section 16: Other
- The assignment of claims is only permitted with the prior written consent of the other party. Consent must not be unreasonably refused. The provisions of Section 354 a HGB remain unaffected.
Section 17: Final provisions
- No additional verbal agreements have been made. Amendments and supplements to these Terms and Conditions must be in writing. This also applies to amendments to the written form requirement.
- The law of the Federal Republic of Germany applies, excluding the UN Sales Convention (CISG).
- The place of jurisdiction for all disputes arising from or in connection with these terms and conditions is the headquarters of ETECTURE.