General Terms and Conditions (Status 2/2020)
1. Validity of the conditions
(1) These General Terms and Conditions of Business (GTC) apply to all business relations between customers and Lüdtke und Wadden - LaceWing Tech GbR (hereinafter referred to as LaceWing Tech).
(2) Any deviating terms and conditions of business of the customer shall not apply unless they have been expressly agreed to by LaceWing Tech in writing or in text form.
(3) “Apps” are installations of web services such as NextCloud or Mattermost, which are made available to customers by LaceWing Tech.
2. Provision of services
LaceWing Tech will provide the services in accordance with the order in accordance with the offer and these general terms and conditions.
3. Warranty for defects and acceptance
LaceWing Tech shall provide the services with the necessary technical and expert knowledge in accordance with the statutory regulations and the generally recognised commercial principles.
The (partial) services of LaceWing Tech shall be deemed to have been fulfilled and accepted unless the customer*in raises objections immediately. The type and scope of the defect must be described precisely.
(1) LaceWing Tech guarantees that the apps are available online around the clock. Excluded from this are necessary downtimes due to maintenance and software updates as well as times in which the Apps cannot be reached via the Internet due to technical or other problems which are not within the sphere of influence of LaceWing Tech (force majeure, fault of third parties, etc.). LaceWing Tech guarantees the availability of the Apps according to the following conditions:
Minimum running time of the Apps of 95 % related to the calendar month, maintenance windows of a maximum of 2 hours excluded, as far as the maintenance is carried out outside the usual business hours (Mon-Fri 9 a.m. to 5 p.m.); in case of a malfunction or a failure, LaceWing Tech undertakes to inform the customer within the framework of the LaceWing Tech office hours (Mon-Fri 9 a.m. to 5 p.m.) as immediately as possible, at the latest, however, six hours after the malfunction has become known, as well as to inform the customer of the expected duration of the malfunction and to ensure the repair of the malfunction as quickly as possible. After Sundays and public holidays, the response time is 12 noon on the next working day.
Availability is calculated according to market standards. (2) LaceWing Tech shall not be liable in particular with regard to availability:
(a) failures which were not directly caused by LaceWing Tech, in particular external DNS routing problems, DDoS or similar attacks on data centers commissioned by LaceWing Tech and failures of parts of the Internet which are beyond the control of LaceWing Tech. (b) Failures, damages and other losses which have been caused by unauthorized or manipulative influences by third parties, as far as their execution is not completely due to negligence in securing the systems by LaceWing Tech. (c) Failures caused by force majeure, for example natural disasters or influence by state authorities. (d) Failures caused by authors or distributors of the software used on the websites, such as software bugs, provided that such software was not installed by LaceWing Tech through gross negligence. (c) Failures caused by force majeure, for example natural disasters or influence by state authorities. (3) We expressly point out that cloud storage of data does not replace own backups. LaceWing Tech regularly creates backups in accordance with the hosting agreement with the customer*. Restoring data from LaceWing Tech’s backups is subject to a charge and will be remunerated according to the agreed hourly rate of our support.
5. Payment agreement, invoice, default
(1) The customer shall pay 50 percent of the agreed remuneration for flat-rate services upon conclusion of the contract and the remaining amount after the service has been performed in full (acceptance). Otherwise, LaceWing Tech will invoice services on a monthly basis, whereby annual flat rates will be paid from the second year of the contract onwards at the beginning of each contractual year.
(2) Invoices are due for payment within two weeks of the invoice being issued.
(3) LaceWing Tech is entitled to issue appropriate advance invoices and to make the performance of the service dependent on the payment of the advance payment.
(4) In the case of default of payment, LaceWing Tech shall be entitled to withdraw from the contract after setting a reasonable deadline and to demand compensation for the services rendered. In the case of default of payment after the (partial) performance has been completely rendered, reminder costs of 10 € will be charged for each reminder letter or reminder by e-mail. The statutory default claims shall remain unaffected.
6. Contract period / termination / notice of termination
(1) The term of the agreement shall begin upon signature. The contract is concluded for an indefinite period, but may be terminated by either contracting party by giving three months’ notice to the end of each calendar year. Notice of termination must be given in writing.
(2) In the case of a termination, LaceWing Tech can, after fulfilment of all contractual obligations, make an offer for the preparation of the customer’s data for a migration.
(3) After the expiry of a period of one month after the termination of the contractual relationship, LaceWing Tech will delete the customer’s apps including all data.
(4) In the case of misuse (see no. 7, paragraph 8), LaceWing Tech reserves the right to terminate the contractual relationship without notice.
7. Obligations to cooperate
(1) The customer assures that all necessary coordination and preparatory work is carried out promptly. The customer undertakes to support LaceWing Tech in the fulfilment of the contractual obligations which have been taken over; this includes making available all information, data, contacts and materials necessary for the provision of the services and initiating the measures necessary for the execution of the contract.
(2) In particular, the customer is obliged to the following cooperative actions:
A contact person will be provided who will be available at short notice and with binding effect for questions and decisions during the entire duration of the project. All materials required for implementation as well as any access to technical systems will be made available to LaceWing Tech in due time. The customer will ensure that all materials made available for the fulfilment of the contract are free from industrial property rights or other rights of third parties which restrict or exclude the use according to the contract. (3) LaceWing Tech will request the customer to carry out the necessary cooperative action in good time, stating a concrete date. If the customer has not carried out the act of cooperation by this date, LaceWing Tech will set a period of grace to carry it out.
(4) The act of cooperation is delayed if it has not been carried out or not completely carried out. In this case, LaceWing Tech will not guarantee that the schedule will be adhered to.
(5) If the act of cooperation is not carried out or not carried out completely within the period of grace, LaceWing Tech will, as far as possible, perform the service without the act of cooperation being present. In this case, the service rendered in this way will be regarded as fulfilment. A subsequent improvement of the service, including the subsequent cooperative act, requires a separate remuneration.
(6) If the performance of the service is not possible due to a lack of a cooperative act, the service shall be deemed waived. In this case, LaceWing Tech retains the claim to the agreed remuneration for the waived service minus any expenses saved. It is assumed that LaceWing Tech will save 30% of the expenses if the service is deemed to be waived due to the violation of the obligation to cooperate.
(7) If the customer* does not comply with the obligation to cooperate, LaceWing Tech has a special right of termination.
(8) The customer is prohibited from making improper legal use of the services of LaceWing Tech, in particular the Apps. An abusive use exists in particular in the following cases:
the publication or distribution of illegal or defamatory content the use of technical aids or methods which impair or may impair the functionality of the services of the provider (software, scripts, bots, etc). (9) The customer undertakes to observe the applicable data protection regulations, to conclude the legally required contracts or agreements (especially order processing contracts) and not to use the apps provided by LaceWing Tech for the illegal processing of personal data.
8. Rights of use
(1) LaceWing Tech grants the customers a simple, non-exclusive right to use Apps for their own purposes for the duration of the contract. This right of use is not transferable. This also applies to new versions, updates, upgrades or other changes to the Apps.
(2) If copyright-protected works are created or used (e.g. pictures, graphics) during the provision of the contractually agreed services, the customer is entitled to publish the work results in unchanged form in whole or in part. The transfer of rights is not exclusive and is not transferable.
9. Ilimitation of liability
(1) LaceWing Tech shall be liable without limitation for intent and gross negligence, but only for simple negligence in the event of a breach of fundamental contractual obligations, i.e. such obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contracting party may regularly rely (so-called cardinal obligations) and for damages resulting from injury to life, body or health.
(2) The liability of LaceWing Tech shall be limited to the amount of the damage foreseeable and typical for the contract at the time of the conclusion of the contract in the case of simple negligent violation of essential contractual obligations and in the case of grossly negligent behaviour of simple vicarious agents (non-executive employees) outside the area of essential contractual obligations and in the case of damage to life, body and health.
(3) The provisions of the Product Liability Act shall remain unaffected.
10. Data protection
(1) LaceWing Tech will observe the regulations of data protection and take appropriate precautions. The contracting parties shall conclude an order processing agreement with regard to order processing in accordance with Art. 28 DSGVO.
(2) The contracting parties are authorised to process the personal data of the other party which is exchanged to them within the scope of the order processing in compliance with the data protection regulations. The legal basis is Art. 6 para. 1 lit. b DSGVO. Data will be deleted as soon as the processing is no longer necessary for the fulfilment of the contract and there is no obligation to retain the data. Every natural person has a right of access to personal data relating to him under Art. 15 DSGVO, a right of rectification or deletion under Art. 16, 17 DSGVO, a right of limitation of processing under Art. 18 DSGVO, a right of objection to processing under Art. 21 DSGVO, a right of transferability under Art. 20 DSGVO and the right to complain to a data protection supervisory authority about the processing of his personal data by the other party.
11. Reservation of the right to amend and adjust fees
LaceWing Tech is entitled to amend these general terms and conditions with effect for the future. The changes will become effective when the general terms and conditions in their amended form are included in a legal transaction. LaceWing Tech will inform the customer of any changes to the articles at least four weeks in advance by e-mail. The change in contributions will also become effective if LaceWing Tech points out the change and the customer can take note of the changes and does not object to them within four weeks after receipt of the notification of change. In the case of an objection, LaceWing Tech reserves the right to terminate the contract.
LaceWing Tech is entitled to adjust the contributions or the contribution structure for the following reasons:
changing market conditions, considerable changes in procurement costs, changes in the value-added tax or procurement prices or extensions or changes due to changed legal framework conditions.
12. Written form requirement, choice of law, exclusion of the UN-purchase right, area of jurisdiction and partial invalidity
(1) Oral collateral agreements were not made. Terminations, amendments and supplements - also to this provision - must be made in writing to be effective. This also applies to changes to this written form clause.
(2) The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
(3) The place of jurisdiction for merchants, legal entities under public law or special funds under public law is Berlin.
(4) Should any of the above provisions be or become invalid, void or unenforceable in whole or in part, the validity of the remaining provisions shall not be affected thereby. In place of the invalid, void or unenforceable provision, the parties shall agree on a provision which comes as close as possible to what the parties intended from the point of view of an uninvolved third party in accordance with the meaning and purpose of the invalid or unenforceable provision. The same applies to any loopholes in this contract.
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