Terms of Service
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As of August 15, 2019
§ 1 Scope
1.1. With the conclusion of the contract, the customer accepts the general terms and conditions of A-DIGITAL one, hereinafter referred to as the contractor, for the entire business relationship. The customer has taken note of these. The general terms and conditions apply and are part of the contract. Terms and conditions of the customer that conflict with or deviate from the terms and conditions require the written form and the express consent of the contractor.
1.2. Customer data is saved as part of customer support and order processing. The customer hereby agrees.
1.3. The contractor reserves the right to change these conditions. With the notification of the change or the delivery of the new terms and conditions to the customer, these become effective immediately, unless the customer has raised a written objection within 10 days.
§ 2 Contractual basis
2.1. All offers made by the contractor are non-binding. These are only binding once they have been confirmed in writing. Contractual agreements between the customer and the contractor must be in writing. An email as order confirmation is also legally binding. The contract is concluded with written confirmation.
2.2. By placing the order, the customer declares that he recognizes the concept of the offer created by the contractor and the facts and information on which the offer is based as a binding basis for the contract.
§ 3 Services
3.1. The scope of the service to be provided results from the service offer of the contractor, the work individually agreed with the customer and the resulting written contract or the order confirmation.
3.2. Changes or additions to the services requested by the customer must be agreed separately and will be charged additionally depending on the time required. The contractor can refuse to perform the service if subsequent changes by the customer lead to a significant change in the contract. If no agreement is reached on the change in the service, the contractor will execute the order in accordance with the agreement made.
3.3. Insofar as performance periods have been agreed, these are extended in the event of a change or addition to the object of performance.
§ 4 Deadlines
4.1. Information on the time of performance and delivery time is non-binding, unless the contractor has given a binding delivery date in writing. The self-supply is always reserved; The contractor only has to vouch for the customer that orders from the third party have been properly carried out.
4.2. Agreed performance and delivery deadlines are extended by the period during which the contractor is prevented from doing so by circumstances beyond our control (e.g. force majeure, failure of employees or technical facilities through no fault of our own, non-delivery to suppliers), to provide the service and for a reasonable start-up period after the disability. The same applies to the period in which the contractor is waiting for information or cooperation from the customer.
4.3. The contractor is only in arrears with a reminder. All reminders and deadlines set by the customer must be in writing to be effective. Periods of grace must be reasonable and at least 20 working days.
§ 5 Cooperation obligations
5.1. Cooperation obligations exist between the purchaser and an employee responsible for the project, whom the contractor designates as the contact person for information and to receive the instructions.
5.2. The customer will provide the contractor with all information required for the contractual performance of services free of charge.
§ 6 Decrease
6.1. In the case of delivery and service, the contractor is entitled to request a written declaration from the customer that the delivery or service has been carried out correctly, completely or free of defects.
6.2. If this declaration is not made for delivery / service, it must be submitted within three weeks of delivery or service. The purchaser can only refuse the declaration if the delivery or service has significant significant defects. The contractual performance or delivery is performed by a functional test. This function test includes the verification of all contractually stipulated requirements in the essential points.
6.3. This declaration in accordance with paragraph 1 is also deemed to be given if the purchaser uses the delivery or service for more than two weeks after delivery or if he expresses his approval in another way, e.g. by silence on a request for acceptance or acceptance or by payment of the remuneration.
6.4. The purchaser must notify defects in writing with a precise description of the defects and symptoms of defects.
§ 7 Prices / remuneration
7.1. Statutory value added tax must be added to the contractor’s stated prices.
7.2. If deliveries of goods or invoicing are made at the request of the customer or for other reasons that are in the sphere of the customer, not or immediately after completion of the order, but later, and if the prices of the contractor have changed in the meantime, they will be changed on the day of Delivery applicable prices billed.
7.3. Partial amounts of the final price, which are already paid for long-term orders during the processing of the order, are counted towards the final amount.
7.4. Payments must be made immediately after delivery of the invoice without any deductions.
7.5. Costs incurred, in particular collection costs, remittance costs of banks in the event of non-payment of direct debit authorizations, costs for cash transfer are charged to the customer.
7.6. The contractor’s claims are due no later than 10 days after invoicing. In the event of late payment by the customer, the contractor is entitled to charge default interest of 8% above the base rate in accordance with §§ 247, 288 II BGB. To demand 5% above base rate for consumer transactions according to §§ 247, 288 I BGB.
7.7. If there are price changes at suppliers or other companies that the contractor was unable to predict in advance, these will be added to the final price.
7.8. The contractor is entitled to invoice the purchaser for a reasonable expense allowance of up to € 15.00 for each reminder.
7.9. Unless otherwise stated, remuneration and incidental costs are net amounts plus VAT.
7.10. For all services, the contractor can charge an advance payment of up to 50% of the order value upon agreement with the customer. If an advance payment has been agreed, the contractor will only begin to provide the service after receipt of the credit. Until then, the order has been mutually agreed.
7.11. Third party costs can be calculated as a full advance payment.
December 7th Remuneration for changes or additions to the service is due after they have been rendered. Any incidental expenses are to be reimbursed after they have been incurred.
7.13. The contractor shall charge for the award of external services in the course of the implementation of the use (printing, lithography, media switching, web hosting, shipping, etc.).
7.14. The customer is only entitled to offset if his counterclaims have been legally established, are undisputed or have been recognized by the contractor. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 8 Warranty
8.1. If the transaction is a commercial transaction for both sides, the purchaser is obliged to assert warranty obligations in order to comply with his inspection and notification obligations in accordance with §§343, 377 HGB. If it is not a business within the meaning of Section 343 of the German Commercial Code (HGB), the purchaser is nevertheless obliged to examine and give notice of defects, which must be carried out in accordance with Section 121 of the German Civil Code.
8.2. It is expressly pointed out that according to the state of the art it is not possible to develop software and internet applications in such a way that they work error-free under all operating conditions. The state of the art is therefore the yardstick for the absence of errors. To this extent, the contractor only guarantees that the deliveries and services provided meet the agreed requirements and indispensable performance features.
8.3. The guarantee takes the form of rework. The purchaser must grant the contractor a reasonable period of time for rectification. Services can be performed up to three times. The rectification is carried out at the contractor’s discretion by providing a new version of the application or by showing the customer ways to avoid the effects of the error. It is not always possible to completely eliminate errors by reworking them. The customer must also adopt a new application version if this leads to a reasonable adjustment effort for him.
8.4. If the rectification fails, the customer has the right to a reduction. The remuneration is reduced appropriately as part of the reduction. § 9 applies to claims for damages. Other warranty rights, in particular claims to the Expenditure Act for defect removal by third parties, new deliveries, contract costs, are excluded.
§ 9 Liability
9.1. The contractor is only liable for damage that was caused intentionally or through gross negligence and was foreseeable when the contract was concluded: In the event of intent, the contractor is liable in full. In the event of gross negligence or in the absence of an assured property, limited to double the remuneration owed from the respective contract.
9.2. Should the contractor fall behind schedule for reasons for which he is responsible, the contractor’s liability to pay compensation in the event of slight negligence is limited to the typical damage foreseeable at the time the contract was concluded, however, to a maximum of half of the agreed remuneration. Further claims for damages require that the contractor is responsible for the delay deliberately or through gross negligence.
9.3. If the delivery date is not met due to circumstances that have been imposed on the contractor from outside, the contractor assumes no liability.
9.4. If the customer defaults on acceptance or if he violates other duties to cooperate, the contractor is entitled to claim the damage incurred, including any additional expenses, from the customer. The risk of incidental usability or deterioration of the goods passes to the customer at the point in time when the customer is in default of acceptance.
9.5. The purchaser releases the contractor from any liability for the content of messages, websites or advertising banners and undertakes not to transmit any material that violates third parties’ rights. The purchaser is responsible for the release of production and / or publication. If the customer delegates the release in full or in part to the contractor in exceptional cases, he releases the contractor from liability. The contractor is in no way liable for images or text material.
9.6. The purchaser is responsible for ensuring that all of the contractor’s copyrights are granted to third parties.
9.7. The purchaser is obliged to pay compensation if the contractor should suffer damage as a result of his negligence.
9.8. The contractor assumes no liability for damage caused to the product by the actions of the customer or by a third party commissioned by him.
9.9. The contractor assumes no liability for damage caused by third parties.
§ 10 Copyrights and granting of rights
10.1. The application created or supplied by the contractor is copyright-capable. All rights to this are reserved for the contractor in the relationship between the contracting parties. Insofar as the rights belong to third parties, they have corresponding exploitation rights.
10.2. Within the framework of the contract, the purchaser receives the comprehensive and non-exclusive authorization that he needs to use an application as described in the following regulations.
a) The customer may load the application onto the memory and hard drives of his Internet computer and, if applicable, the computers of his provider and use it for his purposes. He may continue to make the backup copies necessary for safe operation. Duplication of the application and distribution beyond this level are prohibited. However, the customer is permitted to make text corrections in the application and, if necessary, exchange pictures and content. However, the application may only be used for the purchaser’s own purposes.
b) The customer is only entitled to decompile the applications to make them interoperable if, despite a written request from the customer, the contractor has not provided the information and documents necessary for establishing the interoperability within a reasonable period of time and for a reasonable fee.
c) All other types of use of the application, in particular translation, editing, arrangement and other reworking are prohibited. The customer is not permitted to lend or rent the application.
10.3. The customer is not entitled to the source codes and the development documentation.
10.4. If the customer leaves data, texts, images, photos, film or sound documents to the contractor within the scope of the design of the application, he must ensure that these supplies are free of third party rights and can be used for the contractually intended purpose. The customer releases the contractor from all third party claims.
10.5. The purchaser is only entitled, after prior written approval by the contractor, to transfer the applications created by him or her in whole or in part to his or her own documents or to make them available to third parties against payment or free of charge. The contractor can charge license fees for the use of services by them in a form other than the contractually foreseen. Any other use of the delivery or services by the contractor requires the prior written consent of the latter.
10.6. The contractor is entitled to place a copyright notice in all of the documents, programs, applications, etc. that it has created, identifying him as the author. This copyright notice may not be removed by the customer.
10.7. The purchaser expressly grants the contractor the right to use the services performed for him as a reference for self-promotion.
§ 11 Right of withdrawal
11.1. The customer is entitled to use the application in accordance with the contractual provisions even before full payment has been made.
11.2. The contractor can revoke the authorization of use for an important reason. An important reason exists in particular if the purchaser is in default of payment, does not comply with the restrictions on use or violates the confidentiality obligation and does not immediately refrain from this behavior even after a written warning.
11.3. If the authorization to use is revoked, the customer has withdrawn all deliveries and services and deleted stored applications. The deletion must be assured in writing to the contractor.
§ 12 Confidentiality
12.1. The contracting parties undertake to treat as confidential all information and documents that the other contracting party receives or becomes known as part of the execution of the contract. The contractual partners store and secure these objects in such a way that misuse by third parties is excluded.
12.2. Employees of the contractual partners and third parties involved in the implementation, who have official access to the in paragraph 11.1. items mentioned must be informed in writing of the obligation to maintain confidentiality. For the customer’s employees, this also applies to the legal relationships to the software and the customer’s powers in accordance with § 10.
§ 13 Place of jurisdiction and place of performance
13.1. German law is decisive for this contract and its components. Place of jurisdiction and place of performance for both parties is our company headquarters, unless the law expressly prescribes another place of jurisdiction.
§ 14 Severability clause
14.1. The ineffectiveness of one or more of the above provisions does not affect the effectiveness of the remaining provisions. The ineffective provision is to be replaced by an effective one, which achieves the economic purpose pursued with it as far as possible. The same applies to any gaps in the contract.