General terms and conditions
General terms and conditions of Especial.
General Terms and Conditions (GTC) of Especial Digital GmbH
Last updated on the 10th of June 2023
§ 1 Scope of application
(1) The following General Terms and Conditions of Especial Digital GmbH ("Especial"), Erkrather Str. 401, 40231 Düsseldorf (hereinafter "user"), apply to all contracts of the user if the contractual partner (hereinafter "customer") is a business.
(2) All work results of the User are subject to copyright law in accordance with § 2.
(3) Offers, ancillary agreements and other contracts concluded between the User and the Customer (in particular order processing contracts) shall take precedence over these GTC. They must be in writing in order to be effective.
(4) Conflicting GTC of the respective Customer shall only apply if and to the extent that they are expressly recognized in writing by the User.
(5) These GTC are subject to change to a reasonable extent for the customer. The currently valid GTC are available at https://especial.digital/en/legal/terms-and-conditions.
§ 2 Applicability of the Copyright Act
All work results of the user are subject to copyright law. This shall also apply if the requirements for copyright protection under the German UrhG (e.g. level of creation) are not met for the respective work result.
§ 3 Definitions
"Work results" shall mean all services rendered by the user within the framework of the contractual relationship, in particular the programming, modification and further development of software programs as well as the ideas, algorithms, procedures, specifications and reports created during their development and recorded in documents and on data carriers, as well as design, documentation and training material on the use and maintenance of software programs. Work results are also drafts and test versions.
§ 4 Conclusion of Contract, Subsidiary Agreements
(1) Offers made by the user are always subject to change and non-binding until the conclusion of the contract. The contract is concluded by separate written agreement, by written or electronic order confirmation or by the execution of the order by the User.
(2) Product descriptions, representations and test programs are descriptions of performance and do not constitute assurances of characteristics or guarantees of quality. Assurances and guarantees require the written confirmation of the User's management.
§ 5 Delivery, performance, object of the work result
(1) The User shall develop the respective work result in accordance with the contract and in accordance with the respective order. The respective concrete scope of performance results from the individually concluded contract. Unless expressly agreed otherwise there, the User owes the provision of services as an essential primary contractual obligation and service contract law is applicable. A concrete work result is not owed in this respect.
(2) Unless expressly agreed in writing, disclosure of the source code and/or individual proprietary components of the contractually owed service is not part of the contract and is expressly not owed.
(3) The User does not owe the creation of user documentation.
(4) The work result is created individually for the customer. The User may use software components and open-source software components available to him.
(5) The User may use the support of third parties (“subcontractors”) to fulfil the contract. The User shall be liable for the actions of a subcontractor as for its own actions.
(6) Delivery times stated by the User are planning dates. They are only binding if they have been expressly confirmed as such in writing by the User. Partial services and deliveries are permissible to a reasonable extent. Changes to the order shall result in the cancellation of agreed dates and deadlines. This principle also applies in particular in the event of force majeure, pandemics, wars, strikes, lockouts and official orders.
§ 6 Estimation of the total expenditure
(1) The User may provide an estimate of the time required for the realization of the respective offer.
(2) As soon as the User becomes aware that the estimated time required exceeds the time estimated in accordance with Paragraph 1 by ten percent or more, the User shall inform the Customer. In this case, the parties shall discuss the further procedure and work constructively towards a solution.
§ 7 Cooperation of the Client and Data Security
(1) The Client shall adequately support the successful creation of the work product in each phase by actively participating and fulfilling its assigned responsibilities. The responsibilities include, in particular:
- the provision of the information and data from the sphere of the customer necessary for the proper production of the work product
- the provision of a test environment (hardware with the latest software version, in particular the operating system and the corresponding server software corresponding to the later conditions of use) if the User deems this necessary and informs the Customer of this,
- the availability of competent employees of the Customer
- the availability of sufficient computer capacities such as memory, processor performance and line capacities, and
- the possibility of trouble-free operation of the facilities for remote access, in particular stable data lines and interfaces.
(2) The Customer shall designate employees of its company to act as contact persons for the User.
(3) As long as the customer is two weeks in arrears with an act of cooperation, the user does not have to provide manpower. The user must take action again no later than one month after the end of the arrears.
(4) The customer shall fulfil its responsibilities in good time, and in particular provide the data requested by the User in the formats specified by the User. The Customer shall notify the User in writing of any changes in the sphere of the Customer's responsibilities without delay, at the latest within three working days of becoming aware of them. Any additional expenditure caused by the fact that the customer does not properly fulfil its responsibilities shall be remunerated separately by the customer. Any agreed delivery and/or performance dates of the User shall not be binding in the case of sentence 2 of this paragraph.
(5) The customer is responsible for compliance with any legal obligations when using the subject matter of the contract.
(6) The customer is obliged to protect himself against loss of data and against attacks by malware and the like appropriately and in accordance with the state of the art, and in particular to make regular backups.
§ 8 Acceptance, if required
(1) If acceptance is required by the nature of the contract, work results shall be deemed accepted if and to the extent that the User does not receive a request for correction within two weeks. This period begins with the handing over of the work result.
(2) Section 640 (2) sentence 1 BGB shall apply in addition.
(3) If, within the aforementioned period, one of the Client's project managers is unable to perform work for the Client due to illness, holiday or due to a quarantine order, the period pursuant to paragraph 1 shall be extended by a flat rate of two weeks. The period shall only be extended if the customer immediately notifies the User of the occurrence of the reasons according to sentence 1. An extension of the deadline according to sentence 1 shall be made no more than twice.
(4) Upon acceptance, the risk of accidental loss and accidental destruction of the work result shall pass to the User.
§ 9 Remuneration, Terms of Payment, Prohibition of Offsetting
(1) The User shall receive remuneration from the Customer for the contractual production and provision of the work results, which shall be measured according to the time spent by the User for the realization. The User shall only invoice the time spent by designers, developers, project managers or comparable persons. The remuneration shall be EUR 125.00 for each full hour. Partial hours shall be charged pro rata temporis. If invoicing at a flat daily rate has been agreed, this daily rate shall be 1000.00 EUR.
(2) The parties may also agree on the payment of a one-off or monthly lump sum.
(3) With the remuneration according to paragraphs 1 and 2, all services of the user for the production and transfer of the work result, including necessary preparatory and intermediate work as well as granted rights of use, are fully compensated.
(4) The user's claim to remuneration is due for payment when the work result has been produced and handed over and an invoice has been received. If acceptance is required, the claim to remuneration is not due before acceptance of the work result.
(5) All prices are net, plus the legally applicable value added tax. Costs for travel, travel and absence times, shipping, installation, training of employees of the customer or a third party and other ancillary services shall be remunerated separately.
(6) Additional services which are not contractually agreed, in particular which are not listed in the offer of the User, shall be remunerated separately. This shall apply in particular to additional expenditure as a result of:
- the submission of data in an unsuitable form,
- of necessary and reasonable use of services of third parties,
- expenses for license management,
- commissioned testing, research services and legal audits, as well as services provided
- services rendered outside business hours.
(7) If the Customer is in default, the User – without prejudice to the other statutory rights – is entitled to declare all claims against the Customer immediately due and payable, to stop its own deliveries and services, to demand appropriate security, to withdraw from the contract or to terminate it without notice and, if applicable, to demand damages for non-performance.
(8) If the User demands compensation for damages in the case of paragraph 7, this shall amount to a flat rate of 30 percent of the order value. This does not apply if:
- the User proves higher damage or
- the customer proves that no damage or a reduction in value has occurred at all, or that it is significantly lower than the lump sum or
- the lump sum exceeds the damage to be expected in the regulated cases according to the usual course of events or the usually occurring reduction in value.
(9) The Customer may not offset counterclaims unless these have been titled or expressly recognised by the User.
(10) The User is entitled to offset payments against the Customer's older debt first, despite the Customer's provisions to the contrary.
§ 10 Rights of use
(1) The User shall transfer to the Customer the rights of use required for the purpose of the contract. In principle, only a simple right of use is transferred. The transfer of rights of use to third parties is only permissible with the written consent of the user. The aforementioned rights of use shall not pass to the customer until the agreed remuneration has been paid in full. The customer does not become co-author of the services provided by the user through suggestions or instructions.
(2) In deviation from paragraph 1 sentence 4, the customer is permitted to use the work result for the purpose of release or acceptance testing. The permission ends at the latest with the expiry of the acceptance fiction period, according to § 8.
§ 11 Copyright notices and references
(1) The Customer grants the User the right to include the User's company logo and, if applicable, other references to the fact that the work result was performed by the User in the work results of the User used by the Customer and to link these to each other or to a website of the User. The customer shall adopt all protective notices such as copyright notices and other reservations of rights unchanged. This also applies in particular to the references to the author made in the program code.
(2) The User reserves the right to use work results, even if they are based on customer templates, for presentation purposes, in particular to include the subject matter of the contract of the customer in a reference list for advertising purposes and to set corresponding links.
§ 12 Retainer Agreement
(1) The parties may agree that the User shall hold in reserve a certain number of monthly working hours for services for the Client for a monthly lump sum price and provide these when commissioned by the Client (retainer agreement). Services owed under the retainer agreement are limited to the User's usual range of services and to the project specifically named in the retainer agreement. In particular, the Client has no right to claim that the working hours are spent on projects other than the project named in the retainer agreement.
(2) The remuneration for the retainer agreement shall accrue irrespective of whether the Client commissions services, i.e. actually uses the working hours provided. The remuneration is due at the beginning of each month. After the expiry of any agreed minimum contract period, the Client shall not be entitled to a (continued) discount on the monthly flat rate.
(3) The working hours not used in the respective month expire at the end of the respective following month. A transfer of the unused working hours to later subsequent months is only possible after written confirmation by the User.
(4) The Client has no right to demand that the User provide additional working hours over and above the working hours provided (additional hours). However, the parties may agree separately on the provision of additional hours at a specific hourly rate.
(5) Unless otherwise agreed, the retainer agreement is concluded for an indefinite period.
(6) The Client may terminate the retainer agreement with two months' notice to the end of the month. The User may terminate the retainer agreement with one month's notice to the end of the month. Unlike the User, the Customer may not terminate the Retainer Agreement during the agreed minimum term.
(7) The statutory right to terminate for good cause remains unaffected.
(8) The termination must be in writing.
(9) The contracting parties shall regulate the further details here as well by individual contract.
§ 13 Liability
(1) The User shall be liable without limitation in cases of intent, gross negligence and culpable injury to life, body or health.
(2) Notwithstanding the cases of unlimited liability pursuant to paragraph 1, the User shall only be liable to the Customer in the event of a slightly negligent breach of duty in the event of a breach of material contractual duties, i.e. duties the fulfillment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and compliance with which the other party may regularly rely on, but limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. The claims pursuant to sentence 1 shall become statute-barred after twelve months.
(3) Paragraphs 1 and 2 also apply in favor of employees, representatives and organs of the user.
(4) The above limitations of liability do not apply to liability under the German Product Liability Act (Produkthaftungsgesetz) or within the scope of guarantees assumed in writing by the User.
§ 14 Defects of quality and title
(1) The User shall provide the services owed free of defects and third-party rights.
(2) Should the contractual services violate the property rights of third parties, the Customer shall immediately inform the User in writing and provide the User with the information and other appropriate support required for defense.
(3) The User shall, at its own expense and at its own discretion, either procure the necessary rights of use for the Customer or modify the contractual services in such a way that they no longer infringe the property rights of third parties but continue to comply with the contractual agreements. In the latter case, the User shall carry out all conversions, conversions, adaptation of documentation, training etc. required for this purpose. If the User is not in a position to grant the necessary rights of use or to modify the contractual services accordingly, the Customer shall be entitled to terminate this contract immediately. The right of the customer to assert further claims for damages remains unaffected.
(4) The provisions of paragraphs 2 and 3 do not apply if the User is not responsible for the infringement of property rights.
§ 15 Warranty
(1) Since German service contract law is applicable, warranty claims do not exist in principle.
(2) If a warranty is mandatory by law, the warranty period shall be twelve months from the transfer of the work result and, if necessary, acceptance of the work result. Sentence 1 does not apply in the cases of § 438 para. 1 no. 2 and § 634a para. 1 no. 2 BGB.
(3) The customer must give notice of defects within three working days of knowledge or negligent ignorance of the defect. Defects in a part do not entitle the customer to complain about the entire delivery or service, unless the defect-free part would be of no interest to the customer.
(4) The User shall, at its discretion and to the exclusion of any other warranty rights of the Customer, deliver a replacement or rectify the defect. Multiple attempts at rectification are permissible in this respect.
(5) In the event that the customer does not follow the user's operating instructions or carries out interventions or changes to the work results in an inadmissible manner, any warranty shall lapse. This does not apply if the customer can refute a correspondingly substantiated statement that the defect is due to one of these circumstances.
(6) The User shall only be liable for the loss of data up to the amount that would have been incurred to restore the data if the data had been properly and regularly backed up by the Customer. This does not apply if the User, in deviation from these General Terms and Conditions, has expressly assumed data backup in writing on the basis of a contractual agreement.
§ 16 Data Protection
(1) The parties shall respect the requirements of data protection, in particular with regard to the processing of personal data.
(2) The Customer guarantees the User that all personal data transmitted by the Customer to the User may be processed by the User for the purpose of fulfilling the contracts concluded between the Parties. This also applies in particular to personal data to which the User obtains access through the Customer (for example via remote access). In particular, the Customer shall ensure that the personal data may also be transferred to countries outside the scope of the GDPR.
(3) The Customer shall indemnify the User against all financial claims of third parties under data protection law upon first request and shall bear the reasonable costs of a legal defense against all claims of a financial and non-financial nature under data protection law on behalf of the User if the Customer is responsible for the claim pursuant to Paragraph 2 or for other reasons. The User shall inform the Customer without delay of the claims asserted by third parties; it is not entitled to actually or legally acknowledge such claims unless the Customer has agreed to this in writing in advance.
§ 17 Applicable law, place of jurisdiction, place of performance
(1) This contract as well as all claims, rights and obligations arising from or in connection with this contract shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(2) The exclusive place of jurisdiction for all disputes between the parties arising from or in connection with the contract and the place of performance is the registered office of the User (currently Düsseldorf, Germany) if the contracting parties are merchants, legal entities under public law or special funds under public law. The User is at liberty to also sue the Customer at its registered office.