Note: The German version of this text is authoritative
These General Terms and Conditions (“GTC”) are an integral part of all contracts between entrepreneurs within the meaning of §§ 14, 310 para. 1 BGB (German Civil Code), which straightvisions GmbH, firstname.lastname@example.org, Ballindamm 39, DE-20095 Hamburg (“service provider”) concludes with its business partners (“customers”).
Regulations with effect for all types of contracts
1) Scope and relationship of the regulations
These GTC contain general provisions that apply to all types of contracts that the Service Provider concludes with Customers. The following are special provisions on contracts relating to software licensing and manufacturing agreements, consulting and other service agreements Part 1: Production and modification of media and software, Part 2: Software transfer agreements, Part 3: Consulting and other services, Part 4: Web hosting contracts.
Should general and special regulations contradict each other, the special regulations shall apply in this respect.
2) Conclusion of contract and payment obligation
Contracts are concluded by the offer of the customer and the acceptance of the service provider. Contract proposals displayed on the website of the Service Provider are non-binding.
In the case of contracts concluded on the Internet, the customer submits a binding offer for him as soon as he declares his binding intention to conclude the contract after completing the ordering process via a button with the indication “order subject to payment” (or another similar formulation).
The Service Provider may accept this offer within a period of 14 days. This is usually done by confirming the conclusion of the contract to the customer electronically by e-mail.
Unless otherwise agreed, payment for the services shall be made at 100% of the agreed amount in advance and without deductions.
3) Subsequent general adjustment of the GTC
The Service Provider is entitled to change these GTC in order to adapt them to a new legal situation, jurisdiction or due to new technical developments, if this is reasonable for the Client. In such a case, the Service Provider shall notify the Customer in text form and point out that the Customer may object to the change within one month. After expiration of this period without objection, the new regulations come into force with effect for the future.
4) Subsequent price adjustment
In the case of contracts concluded for an indefinite period of time or beyond a period of twelve months (“continuing obligations”), the Service Provider shall be entitled to adjust the price to a cost situation that has changed for it.
The price adjustment may be carried out in the case of a given contract term at the beginning of the new term. In the case of contracts concluded for an indefinite period, at the earliest after 12 months.
The changed cost situation shall entitle the Service Provider to increase the price if the cost of operating its servers increases, whether due to rent increases, higher electricity costs or costs for the use of third-party software (“Operating Costs”). Special weight for the price calculation have among other things server rent, license costs (third-party software server / website), costs for domains, costs for SSL certificates. The price may be increased only to the extent necessary to compensate for the loss of profit incurred. There is no increase in profits.
Conversely, the service provider undertakes to pass on any savings from cost reductions with regard to operating costs to the customer in the form of a reduction in the fee.
The Service Provider shall announce the price change in writing 3 months in advance. The customer can terminate the service relationship within a period of six weeks after receipt of the announcement extraordinarily with a notice period of 30 days to the end of the month. The price then remains unchanged until the expiry of the deadline.
5) Liability and limitation
The service provider shall be liable without limitation in accordance with the statutory provisions for damage to life, limb and health caused by its own negligent or intentional breach of duty or that of its legal representatives or vicarious agents, as well as for damage caused by intentional or grossly negligent breaches of contract and fraudulent intent on the part of the service provider, its legal representatives or vicarious agents.
The Service Provider shall be liable for damages based on simple negligence, insofar as this negligence relates to the breach of such contractual obligations, the fulfillment of which is a prerequisite for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer may regularly rely (so-called cardinal obligations). In this respect, the liability is limited to the contract-typical and foreseeable damage, at most to the amount of contractual payments that the customer has paid to the service provider within two years prior to the occurrence of damage within the scope of the specific contractual relationship.
The limitation period for claims for defects arising from purchase contracts and contracts for work and services shall be one year from the beginning of the statutory limitation period. This paragraph does not apply to claims for damages.
Any further liability is excluded. Insofar as the liability of the service provider is excluded or limited under this provision, this shall also apply to the personal liability of its employees, workers, staff, representatives, bodies or vicarious agents.
The Service Provider shall not be liable for any infringement of national or international law committed by the Customer while using the provided Services, in particular for any infringement of competition, trademark, copyright or intellectual property rights, unless the infringement results from software provided by the Service Provider.
The Service Provider shall only be liable for data loss if the Customer has previously made a machine-readable backup copy of the lost data that is suitable for restoring the data with reasonable effort. In this respect, liability is limited to this expenditure for restoration.
The legal liability of the service provider arising from a guarantee of quality or durability, under the Product Liability Act or due to fraudulent intent shall remain unaffected in any case.
6) Obligations of the customer
The customer is obliged to comply with applicable laws. In particular, he is obligated not to publish or distribute any right-wing extremist, violence-glorifying or pornographic content via the services provided.
The customer is prohibited from using the provided services for the operation of file sharing. File sharing is understood to mean that the customer enables third parties to exchange files among themselves which are protected by copyright against distribution and publication or which may not be distributed or published due to other legal provisions.
7) Duty to cooperate
The customer has the obligation to participate in the creation of the software as far as possible. In particular, he shall provide the information necessary for the completion of the software about his operational needs and the environmental conditions of the software. In addition, to the extent necessary for the performance of the Service Provider’s service, it shall provide employees of the Service Provider with access to the data processing equipment and premises.
If the Service Provider is not or only partially able to fulfill its performance obligations due to the Customer’s failure to comply with its cooperation obligations, the schedule shall be postponed by the period of the delay.
If the subject of the contract is the production of a homepage, the customer shall promptly provide all content to be used for this purpose. The customer provides this content in electronic form. The digitization of non-electronic content shall only be carried out by the service provider upon separate agreement and additional remuneration.
8) Copyright / Licenses
If the Customer is provided with software by the Service Provider, the Customer shall receive a simple, non-exclusive right of use, unless otherwise agreed. The Service Provider retains the right to continue to use the Software for itself and other customers.
Further rights, in particular to reproduce the software beyond the extent necessary for the contractual use, are generally not granted. There is also no right to change the software, unless the change is necessary to eliminate defects. However, this right to change shall only apply if the service provider has previously refused subsequent performance, if the subsequent delivery is not made despite a deadline being set or if it has failed. In addition, the creation of a backup copy of the software and the duplication of the software within the scope of the usual data backup and the data backup suggested by the software manufacturer to ensure the proper operation of the software and the data processing system operated by the customer are permitted.
The right of the customer to decompile the software within the scope of § 69e UrhG remains unaffected. However, the necessary interface information will be made available at short notice at any time at the customer’s request.
The rights of use granted are limited in time to the term of the contract under which the right of use is granted.
The Service Provider reserves the right to name the Customer as a reference customer in all media and to refer to the Customer’s Internet pages. The service provider may also publicly reproduce or refer to the services provided and the customer logo for demonstration purposes, unless the customer can claim a legitimate interest to the contrary. The customer is obligated to tolerate a reference to the service provider to a reasonable extent on the Internet pages which he is entitled to use. This notice may be combined with a reference to the Internet pages of the service provider. In case of booking of the service provider by a lead or intermediary agency or similar indirect constellations, these rights are applied to all contractual partners in the order chain up to the original client. The reference must realistically reflect the contractual relationship; in particular, any services provided by the service provider through an intermediary must not be presented as the service provider’s own (white labeling prohibition).
The customer is in default if he does not pay the amount due within ten calendar days from receipt of the invoice. A reminder is not required. The receipt of payment by the service provider is decisive for compliance with the deadline.
During the default, the customer shall pay interest on a monetary debt in the amount of 9 percentage points for the year above the prime rate.
The assertion of higher default interest on other legal grounds or the assertion of further damages shall remain unaffected.
If the customer is in default of payment, the service provider may refuse to continue the services, in particular in the case of web hosting, block access to the server.
Should individual provisions of these GTC be ineffective, the remaining provisions shall remain effective.
Regulations for individual contract types
Part 1: Contract on the Production and Modification of Media and Software
11) Subject matter of the contract
The Service Provider offers to produce software and media for the Customer or to modify software and media of the Customer.
The Service Provider shall have the right to choose the type of subsequent performance in the event of defects.
If it is impossible for the service provider to eliminate defects, it shall show the customer ways of avoiding defects. Insofar as these are reasonable for the customer, they shall be equivalent to subsequent performance.
After completion and installation of the software, the customer shall accept the software. This shall be done within a period of one month after the date on which the Service Provider notifies that the Software can be used henceforth. If the Service Provider is also responsible for the installation of the Software, the term shall commence upon completion of the installation and a corresponding written notification thereof.
The acceptance is preceded by a functional test by the customer. This is successful if the software meets the agreed requirements or deviates only insignificantly from them. During the functional test, the Customer shall immediately notify the Service Provider of any deviations from the agreed requirements that occur. If the functional test is successful, the customer declares acceptance without delay.
If the Client does not declare acceptance in due time, the Service Provider may set a reasonable deadline for the submission of the declaration. The software shall be deemed to have been accepted upon expiry of the deadline if the Customer neither declares acceptance in writing nor explains to the Service Provider in writing which defects still need to be remedied. When setting a deadline, the service provider shall inform the customer of this legal consequence.
14) Termination according to § 648 BGB
If the customer terminates the contract pursuant to Section 648 BGB, the service provider may, at its option, demand payment of the remuneration pursuant to Section 648 p. 2 BGB or instead demand payment of a lump sum amounting to 40% of the remuneration due to the service provider for the services not yet performed at the time of termination. The Customer shall have the right to demonstrate and prove that the remuneration to which the Service Provider is entitled pursuant to § 648 p. 2 BGB is lower.
Part 2: Software transfer agreements
15) Subject matter of the contract
The Service Provider shall provide the Customer with already developed software for use by the Customer against payment of a monthly rental fee.
16) Time of payment
The fee shall be paid by the customer by the third working day of each month in case of monthly payment.
If payment is due for a period of up to one year as a one-time payment, the payment shall be made within the first week from the conclusion of the contract. If the term of the contract is more than one year, payment shall be made within the first week of each newly commenced contract year.
The timeliness of payment is determined by the date of receipt on the account of the Service Provider.
Saturday is considered a working day.
17) Right of reduction
The customer is not entitled to reduce the rental payment due to defects. Any existing right to reclaim rent paid subject to reservation shall remain unaffected.
If the Service Provider provides the Customer with software, it shall only be obliged to provide the software version agreed at the time of provision. The transfer of new versions is not owed.
The strict liability for initial defects in accordance with § 536a para. 1 BGB is excluded.
Part 3: Consulting and other services
20) Subject matter of the contract
The service provider offers consulting services for the client, especially in the field of programming, technology, web design and marketing. Consulting services are billed on an hourly basis. This is a service contract under civil law.
Part 4: Web hosting contracts
21) Subject matter of the contract
The Service Provider provides web hosting services for the Customer, the exact scope of which is determined in the individual contracts.
Digital content (software and media) for the customer’s web offerings is contributed by the customer.
If, in addition, it is agreed that the Service Provider will provide software or other media (such as HTML/CSS code, text, text, image, video or sound files, etc.) for the Customer, make changes to the Customer’s own software or maintain this software, this shall constitute a separate contract under Part 1, in particular with separate remuneration arrangements.
22) Availability / service content
The Service Provider shall ensure that the servers and data paths are permanently available to the Customer, as far as technically possible. The technical possibility is not given if disturbances occur due to force majeure or the fault of third parties.
23) Contract term and termination
Unless otherwise agreed, the contract has a minimum term of 12 months and is concluded for an indefinite period.
The contract, if it has a term of at least 12 months, may be terminated by either party with 3 months’ notice to the end of the term.
If the contract has a term of less than 12 months, the notice period is 30 days to the end of the term.
If the contract is not terminated in time, it will be extended by the agreed term, but by no more than a further 12 months.
The statutory option of both parties to terminate the contract without notice for good cause shall remain unaffected.