Maintenance contract between me
Fabian Bitter c/o Postflex #255
Helmers Kamp 74
-hereinafter referred to as the Contractor-
and the end customer
-hereinafter referred to as the Customer-
the following agreement is made.
§ 1 Subject matter of the contract
- The subject matter of this contract is the maintenance, care and updating of the following websites and the underlying installation of databases of the website specified by the customer.
- The prerequisite for the execution of this contract is, unless otherwise agreed in written form, that the websites are based on the CMS "concrete5".
§ 2 Duties of the Contractor
- The contractor is obliged to take the following measures:
- Monthly inspection of the installations of the websites for usability, conflicts and errors.
- Monthly checking and updating of the extensions installed on the website.
- Checking the accessibility of the website.
- Notification of critical errors.
- Correction of functional defects, in particular in the case of disrupted accessibility or functionality.
- Maintenance work, which requires an adaptation of the code by the contractor, is to be carried out by the contractor without separate notification of the customer, if for this no more than 5 hours of effort are to be expected. If an effort of more than 5 hours is to be expected, the Customer shall be informed in advance by sending a cost estimate. If the Customer refuses to carry out the estimated actions after the cost estimate has been sent, the Contractor shall be entitled to a special right of termination of this contract with immediate effect. All further maintenance work shall be carried out by the contractor directly and without prior consultation with the client.
- The contractor undertakes to store the web pages at the corresponding host provider of the contractor in the event of changes to the web pages.
- The contractor must treat the access data provided to him confidentially and take reasonable measures to prevent misuse of the access data by third parties.
§ 3 Obligations of the Client
- The Customer is obliged to provide the Contractor with the necessary access data as well as all other data necessary for the execution of this contract in a timely manner.
- If new content is to be integrated into the Customer's website, the Customer shall be solely responsible for the creation and provision of the content in common formats. If new functions are to be integrated into the Customer's website, the Contractor shall only be obliged to do so if the Customer has sent a detailed description of the desired functionality to the Customer in advance within a reasonable period of time and the integration into the website is reasonable and possible for the Contractor. After receipt of the description of the Customer's change request, the Contractor shall be granted a period of seven days to check whether integration into the website is possible to the knowledge of the Contractor.
- The Customer undertakes not to make any changes to the system settings with regard to the website and the servers during the term of this contract without consulting the Contractor. In the event of a breach of the aforementioned obligation, the Contractor shall not be liable for any lack of availability or usability of the website or for any damage incurred as a result thereof.
§ 4 Time of service provision
- The Contractor is entitled to decide freely about the time of the performance of services, as far as critical errors on the website do not require a prompt correction of these errors to restore the availability or usability of the websites. The contractor is only obliged to immediately correct a critical error outside his regular business hours if this is reasonable for him.
- Maintenance work on the websites and the code behind it shall only be performed during the regular business hours of the Contractor. If maintenance work is carried out on weekends, public holidays and at night time at the express request of the Customer, this shall be remunerated with twice the agreed hourly wage.
§ 5 Term and termination
- This contract shall come into force when the order is placed and shall be limited to a term of twelve months.
- The term of this contract shall be automatically extended by an additional twelve months if the contract is not terminated in writing by one of the contracting parties within a period of three months before the end of the contract term.
- Both parties have the right to extraordinary termination for important reasons according to § 314 paragraph 1 (GCC) BGB.
- An important reason shall be deemed to exist for the Contractor in particular if the Customer persistently infringes its obligations pursuant to § 3 of this contract.
§ 6 Remuneration and accounting
A flat monthly fee of $40 is agreed for the maintenance of a ready-to-use solution (Bitter Theme or Bitter Shop System). For individual projects, the flat monthly fee is $80 or more, depending on the effort involved. Maintenance work according to § 2 Abs. 2 S. 3 of this contract is not included in this flat rate and will be charged separately according to the cost estimate. The parties agree on an hourly rate of $120 for additional expenses which exceed the services owed by the Contractor pursuant to § 2 of this Agreement.
The invoice shall be issued monthly on the 10th of the month for the previous month. The invoice is due for payment within 14 days.
License fees for extensions or fees for other software installed by the Customer shall be to be paid by the Customer. If the Contractor incurred such fees within the scope of the execution of this contract, these expenses shall be invoiced separately to the Customer in the monthly invoice.
§ 7 Warranty and liability
- The contractor shall be liable with regard to defects in his services in accordance with the statutory provisions.
- Warranty rights of the Customer are excluded if the Customer himself has changed the website or the underlying settings or had them changed by third parties, unless the Customer proves that the damage was not caused by the unauthorized change of the settings.
- The presentation of data and information on the websites maintained by the Contractor for which the Customer is responsible is the responsibility of the Customer. The Contractor is not liable for content provided by the Customer. He is also not obliged to check these for any violations of the law. The Contractor assumes no liability for the up-to-dateness, completeness, correctness and legality of the information provided by the Customer and presented on the websites.
- Furthermore, the Contractor shall only be liable for intent and gross negligence as well as for damages resulting from injury to life, body or health resulting from a culpable breach of duty by the Contractor or one of its legal representatives or vicarious agents. In the case of damages based on a slightly negligent breach of essential contractual obligations for which the Contractor is responsible, the Contractor shall only be liable for contractually typical and foreseeable damages. Essential contractual obligations are obligations, whose fulfilment enables the proper execution of the contract between the parties in the first place and on whose compliance the Customer regularly relies and may rely. Apart from that there is no liability. Claims arising from the Product Liability Act shall remain unaffected.
§ 8 Form of declarations
Legally relevant declarations and notifications which the Customer makes to the Contractor or a third party must be in text form.
§ 9 Place of Performance - Choice of Law - Place of Jurisdiction
- The legal regulations about the places of jurisdiction remain unaffected, as far as nothing else results from the special regulation of paragraph 3.
- The law of the Federal Republic of Germany shall apply to the contracts in accordance with these General Terms and Conditions.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the contractor's place of jurisdiction shall be the same. However, the Contractor shall also be entitled to sue the Customer at the court of his place of residence. In the case of a contract with a Customer, the place of jurisdiction shall be the Contractor's place of business if the Customer moves its domicile or usual place of residence out of the territory of the Federal Republic of Germany after formation of the contract. This shall also apply if the Customer's place of residence or habitual abode is not known at the time the action is filed.