§ 1 Scope of application
- These GTC apply to the creation of web projects in accordance with the contract concluded between bitter.de (hereinafter also referred to as "the Contractor") and the customer.
- These GTC apply exclusively; conflicting or deviating terms and conditions of the customer shall not be recognised unless their validity has been expressly agreed to in writing. These GTC shall also apply if the contractor carries out the creation of the project without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these GTC.
- These GTC apply both to consumers and to entrepreneurs, unless a differentiation is made in the respective clause.
§ 2 Subject matter of the contract - conclusion of the contract
- The object of the contract is the realisation of online projects, such as the programming of websites or databases. The concrete object of the contract results from the contract concluded between the parties.
- A contract is concluded exclusively through the signing of a corresponding document by both parties. Previously submitted offers or cost estimates by the contractor are non-binding.
- The contractor reserves property rights and copyrights to illustrations, drawings, calculations and other documents - also within the scope of the contract initiation. This shall also apply to such written documents which are designated as confidential. Before passing them on to third parties, the customer requires explicit written consent.
§ 3 Customer specification sheet - conceptual design - Contractor specification sheet - provision of services
- In the planning phase, the customer shall draw up a customer specification sheet in which he specifically describes the requirements for the software to be created or the web project to be created. The customer specification sheet defines the functionality and performance of the software to be created or the web project to be created completely and in detail. The customer specification sheet must be attached to the contract.
- The contractor must check the customer specification sheet for their completeness, unambiguousness, coherence and technical feasibility and will draw up the contractor specification sheet on the basis thereof. The detailed specification contained in the contractor specification sheet must be so concrete and comprehensive that an expert third party could check the implementation of the requirements of the customer specification sheet and, if necessary, carry out the programming himself. The contractor specification sheet has to define implementation phases for the respective project.
- If the contract of the contractor includes the assumption of the conceptual design of the web project, the conceptual design shall be carried out separately from the contractor specification sheet. The creation of a concept is to be remunerated separately. Unless otherwise agreed in the contract, remuneration for the conception phase shall be in the amount of the hourly wage in accordance with § 7 (1).
- If, during the preparation of the contractor specification sheet, serious technical problems arise which prevent the implementation of the requirements of the customer specification sheet, or if the customer specification sheet does not sufficiently take into account relevant circumstances, the contractor shall immediately and comprehensively inform the customer thereof and, if necessary, already present possible solutions. If the requirements of the customer in the customer specification sheet are not technically feasible for the contractor in a reasonable way, these will be marked accordingly by a special reference in the contractor specification sheet.
- The contractor shall carefully compile the contractor specification sheet and the contract software in accordance with the current generally recognised state of the art. It shall take into account recognised process descriptions and industry standards (e.g. ITIL, DIN) as well as specific provisions, methods and application practices of the customer where applicable.
- The customer shall review and approve in writing the contractor specification sheet prepared by the contractor, in particular with regard to the implementation of the requirements specified in the customer specification sheet. The customer may consult an independent expert of his choice to check the completeness and technical feasibility of the contractor specification sheet.
- 'Defects' during the planning phase means in particular any deviation of the contractor specification sheet from the requirements of the customer specification sheet.
- After successful approval testing, the customer must declare approval of the contractor specification sheet in writing within 7 days. The customer may not refuse approval due to minor defects. However, this is subject to the immediate remedy of these defects by the contractor. With the approval, the customer does not assume any joint responsibility for the technical feasibility and operability of the contract software or the web project (including performance). The approval effect is limited to the complete and technically correct implementation of the requirements from the customer specification sheet.
- The contractor specification sheet will be attached to the contract as an annex after approval.
- If the customer refuses to approve the contractor specification sheet due to significant defects, he must inform the contractor of this in writing, stating the defects. The customer shall grant the contractor a reasonable period of time to remedy such defects. If the approval of the contractor specification sheet fails a second time, the customer may assert his statutory rights, in particular withdraw from the contract and claim damages in the event of a culpable breach of duty by the contractor.
§ 4 Project phases - Termination during project phases - Extension of performance time
- Web projects are divided into project phases according to the underlying contract.
- If the contract is terminated during a project phase, the agreed remuneration shall be paid up to and including the current project phase.
- If the contractor has specified execution or completion deadlines and these have been made the basis for placing the order, such deadlines shall be extended in the event of strike and force majeure for the duration of the delay.
§ 5 Change Requests - Performance Change Procedure
- The change of the data from the contractor specification sheet requires the corresponding explanation of the parties in text form about the change of the data. The customer may demand changes and additions to the service at any time if these are technically feasible and reasonable for the contractor. The contractor shall examine requests for changes within 5 working days of receiving the requests and inform the customer of the result together with any resulting costs and postponements of the project schedule in the form of a binding offer.
- The customer shall review the offer within 5 working days of receiving the offer. If the customer accepts the offer, the changes become part of the contract. The contractor shall adapt all work results, including the documentation, to the changes. If the customer does not accept the offer, the contracting parties shall continue the project unchanged.
- The contractor shall continue the contractual services as scheduled during an ongoing performance change procedure, unless the customer instructs him in writing that the work is to be discontinued or restricted until a decision on the change request has been made. If services are to be rendered or actions are to be carried out prior to completion of the performance modification procedure which would no longer be usable due to the performance change, the contractor shall notify the customer of this in writing without delay.
§ 6 Approval of Software or Web Project
- The object of approval is the contractually owed performance of the contract software or the web project, including the complete implementation of the contractor specification sheet, the existence of guaranteed characteristics if applicable, and the proper quality of the documentation. The prerequisite for acceptance is that the contractor hands over all work results to the customer in full and indicates readiness for approval.
- The customer must then begin with the inspection of the readiness for approval within 7 days.
- If the approval fails, the customer shall provide the contractor with a list of all defects preventing approval. After expiry of a reasonable period of time, the contractor shall provide a defect-free and ready for approval version of the contract software and/or the other work results. Within the scope of the subsequent inspection, only the recorded defects shall be inspected, insofar as their function may be the subject of an isolated inspection.
- After successful inspection, the customer must declare approval of the work results in writing within 7 days.
- The customer may not refuse approval due to insignificant defects. However, this is subject to the immediate remedy of the defects by the contractor. These defects shall be listed individually in the approval protocol.
- If the approval fails at least twice, the customer may assert his statutory rights, in particular withdraw from the contract and claim damages in the event of a culpable breach of duty by the contractor.
§ 7 Remuneration - Terms of payment
- The prices agreed in the contract for the respective phases shall be decisive. If a total price has been agreed, this does not include the expenditure within the scope of the performance change procedure or the remuneration for a commissioned conceptual design of the project in accordance with § 3 (3). Subject to deviating prices agreed in the contract, the hourly wage shall be $120.
- Unless otherwise agreed, the customer receives a daily report on the hours worked at 8 p.m. every day.
- If a total price has been agreed, 40% of the total price shall be paid in advance, 60% of the total price within ten days of approval by the customer Otherwise the payment (if applicable after deduction of paid partial services) is to be paid within ten days after approval and without discount, unless otherwise agreed. The statutory regulations concerning the consequences of delayed payment shall apply.
- An advance payment in the amount of the performance value rendered may be demanded for self-contained parts of the performance in accordance with the statutory regulations.
- Invoices shall be issued immediately after receiving payment by e-mail.
- The customer is only entitled to set-off rights if his counterclaims are legally established, undisputed, recognised by the provider or synallagmatically linked with the main claim of the provider. If the customer is an entrepreneur, he is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
- Claims for payment of the compensation for work become statute-barred in five years, deviating from § 195 Bürgerliches Gesetzbuch (BGB - German Civil Code). With regard to the beginning of the limitation period, § 199 BGB shall apply.
§ 8 Right of use
- The customer may further develop the software created by the contractor in any form and exploit it at will. This also includes the right to sell the software to third parties. Therefore, a transferable, irrevocable, spatially and temporally unlimited right of use is transferred to the customer for all currently known types of use. The rights according to §§ 13 and 25 Urhebergesetz (German Copyright Act) are excluded.
§ 9 Gewährleistung und Haftung – Haftungsausschluss
- The customer's warranty rights shall be excluded if the customer himself has modified the software or had it modified by third parties, unless the customer can prove that the defect in the software was inherent at the time of approval.
- The contractor warrants that the performance results provided within the scope of this contract are free from third-party proprietary rights and that, to the contractor's knowledge, no other rights exist which restrict or exclude use in accordance with this agreement.
- The contractor shall indemnify the customer against all claims of third parties which assert an infringement of proprietary rights. The parties shall immediately inform each other in writing if claims are asserted against one of them due to the infringement of proprietary rights.
- If the contractual use is impaired by third party proprietary rights contrary to paragraphs 2 or 3, the contractor shall have the right, without prejudice to the claims to which the customer is entitled, at the customer's option and to an extent reasonable for the customer, either to modify the contractual services in such a way that they fall outside the scope of protection, but nevertheless comply with the contractual provisions, or to obtain the authority that they can be used in accordance with the contract without restriction and without additional costs for the customer.
- The presentation of data and information on the web projects created by the contractor for which the customer is responsible is the responsibility of the respective customer. The contractor assumes no liability for the topicality, completeness and correctness of the information provided by the customer.
- The contractor has no influence on the availability of the software hosted on external servers of the customer. Therefore a liability for the availability of the projects is excluded. The contractor does not give any promises, guarantees or other assurances in the legal sense with regard to the projects.
- The aim is the universal usability of the created software solutions and web projects, independent of the hardware and software used by the customer. Nevertheless, it cannot be excluded that there are hardware and software configurations in which the services offered by the contractor are not usable or only usable to a limited extent. The contractor therefore excludes liability for a limited or non-existent usability of these services if this is based on the choice of a specific configuration of hardware or software by the customer or his clients. In such cases, however, the contractor shall strive to establish usability as quickly as possible in cooperation with the customer.
- Insofar as the contractor hosts the web project or underlying databases, any liability on the part of the contractor for short-term, insignificant or by the contractor not influenceable malfunctions in the accessibility of the software or web projects is excluded. This shall also apply and in particular in the event of malfunctions in accessibility due to maintenance work on the web pages or server structures on which the web project is based. Maintenance work, insofar as the contractor has been commissioned with such work, usually takes place on weekends between 8 p.m. and 6 a.m. These cases do not entitle the customer to the reduction, termination or the assertion of any compensation claims. Also excluded is liability for malfunctions caused by the unauthorized use of any access data provided by the customer, if the customer is responsible for this unauthorized use.
- 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 which are based on a culpable breach of duty by the contractor or one of its legal representatives or subcontractors/employees. 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 the fulfilment of which is essential for the proper execution of the contract between the parties and on the observance of which the customer regularly relies and may rely. Otherwise, there shall be no liability. Claims arising from the Produkthaftungsgesetz (German Product Liability Act) shall remain unaffected.
§ 10 Privacy
- The contracting parties shall observe the relevant data protection regulations. In particular, the Contractor shall collect, process or use personal data of the Customer within the meaning of § 11 para. 3 BDSG only within the scope of the Customer's instructions in accordance with a contract on order data processing. The contracting parties obligate their employees in accordance with § 5 BDSG to observe data secrecy, unless such an obligation already exists.
- The contractor is obliged to regularly back up data to the required extent. In addition, he shall fulfil the technical and organisational requirements in accordance with the enclosure to § 9 BDSG. In particular, he shall protect the systems subject to his access against unauthorized access, storage, modification and other unauthorized access or attacks of any kind by employees of the Customer or other third parties. To this end, he shall take appropriate measures in accordance with the latest state of proven technology to the extent necessary, in particular to protect against viruses and other defective programs or program routines, as well as other measures to protect his equipment, in particular to protect against intrusion. If systems not subject to his access are used, he shall impose corresponding obligations on his contractual partners and monitor their compliance on a regular basis.
- The client is entitled to check compliance with the data security requirements at any time after prior written notice of at least 14 days. For this purpose, the Contractor shall grant him access during his usual business hours to his business facilities relevant for the inspection, in particular the EDP systems.
§ 11 Other
- The Client grants the Contractor the unlimited and unrestricted right to use the name of the Client as a reference after completion of the project at its own discretion.
§ 12 Form of declarations
Legally relevant declarations and notifications which the client has to make to the contractor or a third party, must be in text form.
§ 13 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 merchant of the special fund under public law, it shall also be the place of jurisdiction of the contractor. 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 consumer, 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 conclusion of the contract. This shall also apply if the Customer's place of residence or habitual place of abode is not known at the time the action is filed.
§ 14 Implementation of the ODR Directive
Online settlement of disputes pursuant to Art. 14 para. 1 ODR¬VO: The European Commission provides a platform for online dispute resolution (OS) which you can find at http://ec.europa.eu/consumers/odr/finden.