General terms and conditions of business

§ 1. General

  1. These general terms and conditions (hereinafter "GTC") apply to all contracts between ETECTURE and the customer for the provision of services in the field of software development in business transactions with entrepreneurs. These GTC of ETECTURE apply exclusively. Conditions of the customer that conflict with or deviate from these GTC will not be recognized unless ETECTURE has expressly agreed to their validity. This also applies if ETECTURE carries out the services without reservation despite knowing that the customer's conditions conflict with or deviate from these GTC.

§ 2 Services

  1. ETECTURE will provide services to the Customer on the basis of the offer submitted by ETECTURE and confirmed by the Customer.
  2. These terms and conditions apply to the offers as binding regulations between the parties. If the provisions of the offer and the terms and conditions contradict each other, the provisions of these terms and conditions take precedence in case of doubt. The parties can only agree on different regulations in an offer if the offer expressly refers to the deviation from these terms and conditions.

§ 3 Cooperation and duty to cooperate

  1. The parties will work together in a spirit of trust. If one party realises that information and requirements, whether their own or those of the other party, are incorrect, incomplete, unclear or not feasible, they must immediately inform the other party of this and of the consequences they can foresee. The parties will then seek a solution that is in line with their interests and, if necessary, endeavour to achieve this in accordance with the provisions on service changes.
  2. The customer supports ETECTURE in fulfilling the contractually agreed services. This includes in particular the timely provision of information, expert employees, communication tools and connections as well as hardware and software and making premises accessible where necessary. The customer will instruct ETECTURE in detail about the circumstances that must be observed when working on its premises and technical equipment. The customer undertakes any cooperation at its own expense.
  3. The customer ensures that all cooperation services required for the provision of the agreed service are provided on time, completely and free of charge for the contractor. The cooperation services to be provided by the customer are a prerequisite for ETECTURE to provide the service in accordance with the contract.
  4. ETECTURE will inform the customer in good time about the necessary cooperation services and these will only become binding for the customer once they have been confirmed by the customer (an email is sufficient). If the customer does not provide the cooperation services, any resulting fee increases or postponements will be at the customer's expense.
  5. If it is necessary for ETECTURE to gain access to the customer's communications and data processing systems/servers in order to provide the service, the customer will ensure this. Access is provided via a remote connection for IT service providers (e.g. via Remote Desktop Protocol (RDP), Teamviewer). To install new software releases or manage the server, the customer will grant ETECTURE the necessary admin rights in good time and provide all required passwords.

§ 4 Contact person

  1. The parties will each appoint a contact person and their deputy. These will be the other party's sole contact persons for all matters relating to the legal framework of the collaboration and for all types of agreements and arrangements. The parties assure that the contact persons and deputies they appoint are fully authorized to make all decisions relating to the collaboration.
  2. The parties are free to replace the contact persons and their deputies they have appointed with other people. Changes must be communicated to the other party immediately in writing or by email. When making changes, the parties will ensure that there are no disruptions to the collaboration and that newly appointed persons have all the necessary information and expertise required for the project to continue smoothly.

§ 5 Remuneration

  1. The remuneration is based on the respective offer. As a rule, the offers are only estimates of the effort involved. The effort and associated prices mentioned in an offer are only binding if they are expressly described as binding (e.g. "fixed price").
  2. If the parties have not reached an agreement on remuneration within the framework of an individual order, this shall be based on the currently valid ETECTURE standard price list.
  3. Unless the offer provides for any deviating or additional agreements, ETECTURE is entitled to demand remuneration from the customer as follows:
  • 30% of the agreed total amount after commissioning;
  • 50% depending on the progress of the project in accordance with a monthly invoice and with a specific description of the services provided;
  • 10% of the agreed total amount upon provision for acceptance;
  • 10% of the agreed total amount after acceptance.
  1. For services which ETECTURE, in coordination with the customer, does not provide at the location of its offices, travel costs will be charged separately in accordance with the currently valid ETECTURE standard price list.
  2. Invoices from ETECTURE are payable within 14 days of the invoice date.
  3. All amounts are exclusive of statutory VAT.

§ 6 Additional costs, additions and changes

  1. All services provided by ETECTURE that are based on subsequent requests for changes or additions from the customer are considered additional work. Requests for additions must generally be made 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, even though the prerequisites for acceptance already exist.
  2. If ETECTURE decides to make changes and additions to works already accepted, these will be agreed and carried out as new orders.
  3. In the case of requests for changes that can be examined within 1 working hour and are expected to be implemented within 8 working hours, ETECTURE may refrain from the procedure according to Section 6 Paragraphs (4) – (7).
  4. ETECTURE will immediately check what effects the requested change will have, particularly with regard to remuneration, additional work and deadlines. If ETECTURE realises that the services to be provided cannot be carried out or can only be carried out with a delay due to the scope of the review, ETECTURE will immediately inform the customer of this and point out that the change request can only be further checked if the provision of the originally agreed services is postponed for the duration of the review of the change request. If the customer agrees to this postponement, ETECTURE will immediately carry out the review of the change request. Otherwise, the change process ends.
  5. After examining the change request, ETECTURE will explain to the customer the effects on the agreements made. The explanation will contain either a detailed proposal for implementing the change request or information on why the change request cannot be implemented technically.
  6. The parties will immediately agree on the content of a proposal for implementing the change request and will attach the result of a successful vote to the text of the agreement to which the change refers as a supplementary agreement to the offer concerned.
  7. If no agreement is reached or if the amendment procedure ends for another reason, the original scope of services will remain. The same applies if the customer does not agree to a postponement of the services in order to carry out the further examination in accordance with Section 6 Paragraph (4).
  8. The dates affected by the change procedure will be postponed as necessary, taking into account the duration of the review, the duration of the coordination of the change proposal and, if applicable, the duration of the change requests to be implemented, plus an appropriate usual start-up period. ETECTURE will inform the customer of new date proposals; the parties will then agree on the new dates.
  9. The customer must bear the costs incurred by the change request. This includes, in particular, checking the change request and preparing a change proposal. Unless otherwise specified in the offer in question, the costs will be calculated according to the remuneration rates set out in Section 5 (2) of these terms and conditions.
  10. ETECTURE is entitled to make minor changes to the services to be provided according to the offer if the change is absolutely necessary and reasonable for the customer. ETECTURE will coordinate such changes with the customer before they are implemented.

§ 7 Withdrawal and termination

  1. The customer may only withdraw from the contract due to a breach of duty that does not constitute a defect in the work if ETECTURE is responsible for this breach of duty.
  2. Termination according to Section 649 of the German Civil Code (BGB) is excluded.

§ 8 Usage and copyright

  1. The customer receives a simple, temporally and spatially unlimited right of use for all performance results created as part of the project, as well as for the software tools and software modules that were developed by ETECTURE itself and that ETECTURE uses as part of the service provision, for the intended use. Unless the parties agree otherwise, the intended use includes the right to load, display and run the software, even if this requires temporary or permanent reproduction of the software. In addition, the rights under Section 69d Paragraph 2 and Section 69d Paragraph 3 of the Copyright Act as well as the rights and obligations under Section 69e of the Copyright Act apply to the customer. Other uses, in particular the free editing of the software, are not permitted.
  2. The customer does not receive administrative access to the software system or access to the source code. He is not authorized to use the source code.
  3. The granting and/or transfer of the rights of use granted in paragraphs (1) - (2) to third parties is not permitted unless the customer completely surrenders his own rights of use.
  4. The customer receives a right of use for standard software and standard software modules from third-party providers in accordance with the respective license terms of the third-party provider.
  5. The customer also receives a right of use for open source software and third-party, externally licensed media content (e.g. image and layout material) in accordance with the relevant license terms. ETECTURE will inform the customer in good time before using open source software or content that falls under this regulation and obtain consent for its use.
  6. The granting of the rights of use will only become effective upon full payment of the agreed remuneration from the offer.
  7. The customer expressly declares that he has all necessary rights of use for the software, media content, etc. provided by him, which are to be processed by ETECTURE for him in connection with this agreement.

§ 9 Acceptance

  1. As soon as ETECTURE has created a concept or specification that meets the contractual requirements, the customer will accept it by means of a declaration in text form (Section 126 b BGB) within a maximum of 7 days after provision.
  2. As soon as ETECTURE has completed a project and it meets the contractual requirements, ETECTURE will notify the customer in writing that it is ready for acceptance (Section 126 b of the German Civil Code). Upon receipt of this declaration, a period of 14 days begins for the customer, within which the customer is obliged to inspect and accept the project in writing. Any defects must be reported to ETECTURE in writing in the acceptance protocol. ETECTURE will remedy these defects within a reasonable period of time and make the project available for acceptance again.
  3. If the acceptance period expires without ETECTURE receiving a declaration of acceptance or a notification of defects, the work product is deemed to have been accepted free of defects upon expiry 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 for it.
  4. The declaration of acceptance may not be refused due to insignificant defects. Defects that do not or do not significantly impair usability are considered insignificant.

§ 10 Warranty

  1. The customer is aware that software cannot be created completely free of errors. Minor defects therefore do not prevent the software from being used as agreed.
  2. ETECTURE guarantees that the work products provided by ETECTURE within the scope of the agreement are free from third-party intellectual property rights and that, to the knowledge of ETECTURE, no other rights exist that restrict or exclude contractual use. ETECTURE indemnifies the customer against all possible claims by third parties in this respect.
  3. If the contractual use is impaired by third-party intellectual property rights, the customer must inform ETECTURE of this immediately after becoming aware of it. In this case, ETECTURE has the right, to a reasonable extent for the customer and in consultation with the customer, to either modify the contractual services so that they fall outside the scope of protection but still comply with the contractual provisions, or to obtain the authorization to use them in accordance with the contract without restriction and at no additional cost to the customer.
  4. ETECTURE does not guarantee that the work products created will retain their contractually agreed suitability even under changed circumstances in the event of general changes in technology (e.g. browsers, server technology, plug-ins, operating systems, W3C standards, online access, etc.). There is no right to subsequent adjustment.
  5. To the extent that this is possible and reasonable for the customer in view of the effects of the defect, ETECTURE may provide the customer with an interim solution to circumvent the defect (workaround) until the defect is finally remedied.
  6. The warranty claim is void if the customer modifies work products himself or has them modified by third parties without the consent of ETECTURE, unless the customer proves that the defects in question were not caused by the modifications made by him or the third party or by the failure to carry out maintenance/updating activities.
  7. The warranty period is 1 year and begins with the acceptance of the work results. The statutory limitation periods for claims arising from personal injury and claims under the Product Liability Act as well as warranty claims remain unaffected.

§ 11 Liability

  1. ETECTURE shall be liable without limitation for any damage caused to the customer in connection with the provision of services, provided that such damage is based on intentional or grossly negligent conduct.
  2. ETECTURE is also liable for damages incurred by the customer in connection with the provision of services, insofar as these were caused by negligent breach of an essential contractual obligation. In this case, ETECTURE's liability is limited to the damage typically foreseeable at the time the contract was concluded.
  3. The above limitations of liability do not apply to liability for personal injury and liability under the Product Liability Act.
  4. To the extent that ETECTURE creates the work results according to the customer's instructions and/or on the basis of content provided by the customer, ETECTURE assumes no liability for the work results being legally compliant. ETECTURE assumes no liability under any circumstances for the content provided by the customer. It is the customer's responsibility to have the services or work to be provided by ETECTURE legally reviewed before they are published.
  5. The customer is obliged to take effective measures to prevent and reduce damage. ETECTURE is not liable for the loss of data and/or programs if the damage is due to the customer failing to back up data and thereby ensuring that lost data can be restored with reasonable effort.
  6. Liability is excluded for defects in the customer's programs that already existed before ETECTURE took over. The processing status at the time ETECTURE began its work is decisive.
  7. The above provisions also apply to ETECTURE’s vicarious agents.

§ 12 Term

  1. Deadlines for the provision of services shall only be deemed to be binding if they are confirmed in writing by ETECTURE and designated as binding in writing.
  2. ETECTURE is not responsible for delays in performance due to force majeure (e.g. strikes, lockouts, official orders, general disruptions to telecommunications, etc.) and circumstances within the customer's area of ​​responsibility (e.g. failure to provide cooperation services on time, delays by third parties attributable to the customer, changes to services, etc.) and entitle ETECTURE to postpone the provision of the affected services for the duration of the disruption plus a reasonable start-up time. ETECTURE will notify the customer of delays in performance due to force majeure.

§ 13 Data protection

  1. ETECTURE undertakes to comply with the statutory provisions on data protection, in particular to collect, process and use personal data only for the purpose agreed with the customer.
  2. ETECTURE undertakes to only employ personnel who have been sworn to data confidentiality.
  3. ETECTURE further undertakes to only entrust subcontractors/freelancers with the processing of personal data if they have previously committed in writing to comply with data protection regulations.

§ 14 Confidentiality, press release

  1. The documents, knowledge and experience provided to the other party may only be used for the purposes of cooperation and may not be made accessible to third parties unless they are intended to be made accessible to third parties or are already known to the third party.
  2. Third parties do not include auxiliary persons called in to carry out the contractual relationship, such as freelancers, subcontractors, etc.
  3. Furthermore, the parties agree to maintain confidentiality regarding the knowledge gained during the implementation of a project.
  4. The obligation of confidentiality also applies beyond the termination of the contractual relationship.
  5. If a party so requests, the documents handed over by it, such as strategy papers, briefing documents, etc., must be returned to it after termination of the contractual relationship, provided that the other party cannot assert a legitimate interest in these documents.
  6. ETECTURE may publicly name projects carried out for the customer as references.

§ 15 Prohibition of poaching

  1. The customer undertakes not to poach any employees from ETECTURE or to employ them without the consent of ETECTURE during the period of cooperation between the parties and for a period of one year thereafter.
  2. For each case of violation of the non-poaching clause, the customer will pay ETECTURE a contractual penalty, the amount of which will be at the reasonable discretion of ETECTURE and which, in the event of a dispute, can be reviewed by the competent court at the customer's request.

§ 16 Miscellaneous

  1. The assignment of claims is only permitted with the prior written consent of the other party. Consent may not be unreasonably withheld. The provisions of Section 354 a of the German Commercial Code (HGB) remain unaffected by this.

§ 17 Final provisions

  1. There are no oral side agreements. All changes and additions to these terms and conditions must be made in writing to be effective. This also applies to changes to the written form clause itself.
  2. The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
  3. The place of jurisdiction for all disputes arising from or in connection with these terms and conditions is the registered office of ETECTURE.

Status: 01.05.2018