General Terms and Conditions of SPACE44 GmbH

Version 3.2, November 26, 2019

 

preamble

SPACE44 GmbH (hereinafter also: “Contractor”) develops websites, mobile apps and other software for customers on a service and / or contract basis (hereinafter also: software development) and provides maintenance services in relation to software products. 

 

Part 1 – General regulations 

§ 1 definitions

  1. “Work results” are all works created by the activity of the contractor under this contract, in particular the contract software and the documentation. 
  2. “Execution Period” is the period in which the contractor will carry out the implementation phase in accordance with the project schedule. 
  3. “Documentation” includes the user documentation, installation description, interface descriptions, source code documentation and the maintenance documentation. 
  4. “Service changes” are requirements of the client outside of the agreed services or their changes, in particular subsequent changes to the specifications. No changes to services are the renaming of an agreed service and, taking into account the interests of both parties, minor changes to the agreed services. Changes that affect the adherence to the project schedule are in principle not minor. 
  5. “Employees” are employees of the respective party or of “affiliated companies” as well as employees without employee status, such as freelancers and / or temporary workers.
  6. “Contract software” is the software to be developed by the contractor in accordance with the offer in all development stages, including the source code, and the documentation, insofar as contract software is owed as a concrete performance result based on the offer. 
  7. “Confidential information” is all information and documents of the other party that are marked as confidential or that are to be regarded as confidential from the circumstances, in particular information about operational processes, business relationships and know-how, and – for the contractor – all work results. 

§ 2 data protection and data security 

The contracting parties observe the relevant data protection regulations. In particular, the contractor will only collect, process or use personal data of the client after concluding a contract for order processing in accordance with Art. 28 GDPR. 

§ 3 confidentiality 

  1. The parties agree to keep confidential information confidential. This obligation continues for a period of 6 months after termination of the contract. 
  2. Such confidential information is exempt from this obligation, 
  • which the recipient was demonstrably already aware of when the contract was concluded, or which subsequently became known to third parties, without violating a confidentiality agreement, legal regulations or official orders;
  • which are publicly known when the contract is concluded or are made public thereafter, unless this is based on a breach of this contract;
  • which must be disclosed due to legal obligations or on the orders of a court or an authority. To the extent permissible and possible, the recipient who is obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure. 
  1. The parties will only grant access to confidential information to those advisors who are subject to professional secrecy or who have previously been required to comply with the confidentiality obligations of this contract. Furthermore, the parties will only disclose the confidential information to those employees who they need to know for the implementation of this contract, and will also oblige these employees to maintain confidentiality to the extent that is permitted by employment law after their departure. 
  2. Any culpable violation of these regulations will result in an appropriate contractual penalty, which the injured party must appropriately determine and which can be checked by the competent court for appropriateness. Further claims of the injured party remain unaffected.

§ 4 liability 

  1. Under the terms of this contract, the contractor is only liable for damage (a) that the contractor or his legal representatives or vicarious agents caused intentionally or through gross negligence or (b) from injury to life, limb or health a breach of duty by the contractor or one of his legal representatives or vicarious agents has occurred. The contractor is further liable (c) if the damage has arisen from the breach of an obligation of the contractor, the fulfillment of which enables the orderly execution of the contract in the first place and the compliance of which the customer can regularly trust and trust (cardinal obligation). 
  2. The contractor is liable in the cases of paragraph 1, letters (a) and (b) for an unlimited amount. For the rest, the claim for damages is limited to the foreseeable, contract-typical damage. 
  3. In cases other than those mentioned in paragraph 1, the liability of the contractor is excluded regardless of the legal reason. 
  4. The liability regulations in the previous paragraphs also apply to the personal liability of the organs, employees and agents of the contractor. 
  5. Insofar as liability according to the Product Liability Act comes from the assumption of a guarantee or due to fraudulent deception, it remains unaffected by the above liability regulations.

§ 5 assignment ban; Offsetting; Written form; Choice of law; Place of jurisdiction 

  1. The contractor is only entitled to assign claims against the client to third parties with the client’s written consent. Section 354a HGB remains unaffected. 
  2. Each contracting party may only offset undisputed or legally established claims. 
  3. Changes and additions to this contract must be made in writing. This also applies to the change or cancellation of this clause. Electronic documents in text form meet the written form requirement. 
  4. German law shall apply to this contract, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (UN Sales Convention). 
  5. The exclusive place of jurisdiction is Munich. 
  6. Should individual provisions of this contract be ineffective, this does not affect the validity of the remaining provisions. The contracting parties will endeavor to find an ineffective provision that will best meet the contractual objective, both legally and economically.

§ 6 subcontractors 

The contractor is entitled to engage subcontractors.

 

Part 2 – Regulations for software development or design development

§ 1 subject of the contract 

  1. If and insofar as it has been agreed between the parties that the contractor should provide a service result that is finally defined in the contract, the contract is subject to the contract for work related to software development; the application of § 650 BGB is excluded. A specific execution period is only the subject of the contract if it has been expressly agreed. If and insofar as no conclusively defined performance result has been agreed, the contract is subject to service contract law.
  2. All design services owed are generally performed with two correction loops. Section 7 of Part 2 applies to further correction levels. 

§ 2 Service provision in the context of software development 

  1. The contractor performs its services and / or creates the design and / or contract software after appropriate professional care. 
  2. The contractor creates the documentation in English. Documentation is only in the source code. The source code and the source code documentation must be such that a knowledgeable third party can independently correct software errors and edit and develop the software. A user manual is not owed.
  3. The contractor will   hand over all work results to the client after completion of the services or completion of the contract software or design services. The contract software is transferred on a conventional data carrier, unless a specific format or online transmission has been agreed. The client can also request the immediate return of the work results that have already arisen at any time without giving reasons.
  4. By the way the contract is processed and by suitable internal organizational measures, the client must ensure that there is no relationship with the contractor’s employees, which is regarded as an employment relationship (see § 7 SGB IV) between the client and the contractor’s employee can. Insofar as on-site assignments are required at the customer’s headquarters, the customer will not integrate the employee into the company and will not provide him with any resources. The right to issue instructions remains with the contractor in any case. The contractor will also instruct his employees accordingly.

§ 3 Transfer of employees / direct assignment

  1. If the client takes on an employee of the contractor or an employed subcontractor as his own employee in connection with a project, the contractor is entitled to a fee of 35% of the employee’s first gross annual salary. All compensation components are taken into account when calculating the first gross annual income. In particular, this also includes components that are paid regardless of success and / or depending on success. Non-performance-related allowances such as non-cash benefits, international allowances, housing allowances or representation allowances are recognized at their tax base. Success-related salary supplements such as royalties, bonuses or profit shares are valued at their usual expected or usual value. Benefits in kind are recognized with their monetary benefit. The contractor is entitled to this amount if the employment takes place during the term of this contract or during the first 12 months after the termination of this contract.
  2. If the client uses an IT consultant, who has been proven or brokered by the contractor or a subcontractor used for a project at the client, as the contractor, the contractor has a fee of 24 months from the start of the direct assignment by the client 15% of the remuneration invoiced to the contractor by the respective IT consultant or subcontractor, together with additional costs (travel expenses, allowances, etc.). The payment obligation arises if the direct order is placed during the term of this contract or during the first 12 months after the end of this contract. 

§ 4 Obligation to cooperate 

  1. The client has to promote the success of the project in every phase through active and appropriate participation. In particular, he will provide the contractor with the information, documents and data, computer programs and other means necessary for the proper implementation of the project.
  2. If the client does not meet his cooperation obligations and the contractor is unable to complete the project or parts thereof within the agreed time, the period specified in the schedule will be extended accordingly. Sections 642 and 643 BGB are waived. 

§ 5 project management 

  1. Insofar as the subject of the contract is a performance result defined in the contract, the parties each designate a contact person (“project manager”) as permanent reference persons for all matters relating to the project. The project managers are to be defined at the beginning of the project.
  2. The project managers regularly, but at least every 2 weeks, discuss the progress of the project, especially with regard to adherence to the project schedule and the project requirements specified in the offer. 

§ 6 Right to information and reporting 

The client has the right to inform himself about the project progress at any time. For this purpose, the contractor will send the client the required information on request. 

§ 7 changes in performance 

  1. Insofar as the subject of the contract is a performance result defined in the contract, the client can request changes and additions to the service at any time up to the time of acceptance if these are technically feasible and reasonable for the contractor. Change requests must be sent to the contractor in writing or in text form (email). The contractor checks requests for changes within 3 working days of receipt and notifies the client of the result together with the resulting additional costs and postponements of the project schedule in the form of a binding offer.
  2. The client will examine the offer within 3 working days from receipt of the offer. If the client accepts the offer, the changes become part of the contract. The contractor has to adapt all work results, including the documentation, to the changes. If the client does not accept the offer, the contracting parties will continue the project unchanged.
  3. The contractor will continue the contractual services during a service change process in progress, unless the client instructs him in writing that the work should be stopped or restricted until a decision is made regarding the change in service. If services are to be rendered or actions to be performed before the completion of the service change procedure that would no longer be usable due to the service changes, the contractor shall inform the client immediately in writing. 

§ 8 Acceptance of the software and / or the design

  1. Insofar as the subject of the contract is a performance result defined in the contract, the subject of acceptance is the contractually owed contract software and / or design service. The prerequisite for the acceptance is that the contractor hands over all work results to the client and indicates that he is ready for acceptance.
  2. The client must then begin testing the acceptance capability within 3 days. If the client does not start, the contractor can request acceptance and set a period of at least 3 days. After this period, the work is deemed to have been accepted if the client has not refused acceptance within this period, stating at least one defect.
  3. If the acceptance fails, the client will provide the contractor with a list of all defects preventing the acceptance. After a reasonable period of time, the contractor must provide a defect-free and acceptable version of the contract software or other work results. In the course of the subsequent check, only the recorded defects are checked, insofar as their function can be the subject of an isolated check.
  4. After a successful examination, the client must declare the acceptance of the work results in writing or in text form (email) within 2 days.
  5. The customer may not refuse acceptance due to minor defects. These defects must be listed individually in the acceptance report. 

§ 9 remuneration / travel expenses

  1. The client has to pay the remuneration specified in the offer for the services of the contractor. Billing takes place monthly for the services performed in the previous calendar month. The billed services are due 14 days after receipt of the invoice.
  2. If the contractor provides services at the customer’s registered office or at another location specified by the customer, travel expenses in the amount provided in the offer must be reimbursed. If there is no provision for travel expenses in the offer, the travel expenses that would have been incurred with the cheapest means of transport must be reimbursed, unless it has been expressly agreed that travel expenses will not be reimbursed.
  3. With all-in hourly rates, all travel expenses are included in the hourly rate.

§ 10 granting of rights 

  1. The contractor grants the client the spatial, temporal and content-free, exclusive and irrevocable right to all known and unknown types of use of the work results created by the contractor at the time of payment of the respective service. In particular, the client is entitled without restriction to reproduce, edit (also combine software with other programs, redesign, convert into other programming languages ​​and for other operating systems) the work results, transfer them to other forms of representation and change them in any other way , to continue and to add, to disseminate in unchanged and modified form, to be publicly and wirelessly transmitted,
  2. The contractor uses the following programming languages ​​/ frameworks including associated standard libraries for the development: 
  • C, C ++
  • C #
  • Go 
  • python 
  • Java, Kotlin
  • Javascript
  • Typescript
  • Php
  • iOS Swift
  • Objective-C
  1. The contractor also uses open source components in the development. Open source components are in particular, but not exclusively, software components that are licensed under a license agreement that is qualified as an open source license by the Open Source Initiative (OSI).
  2. Through this contract, the client authorizes the contractor to license open source license agreements, which the contractor considers necessary for the project, on behalf of the client within the framework of the project in accordance with this paragraph. If licensing on behalf of the client is not possible, the contractor will license the respective component in its own name and, under the same conditions or, if this is not possible under the respective license agreement, to the greatest extent possible under the respective license agreement, continue to license the client .
  3. In particular, the contractor is entitled to use open source components and to license them for the client, which are subject to the following licenses:
  • BSD 3-Clause “New” or “Revised” license
  • BSD 2 Clause “Simplified” or “FreeBSD” license
  • Free Public License 1.0.0 (0BSD)
  • GNU Lesser General Public License version 2.1 (LGPL-2.1)
  • GNU Lesser General Public License version 3 (LGPL-3.0)
  • GNU Library or “Lesser” General Public License (LGPL)
  • WITH license
  • Mozilla Public License 1.0 (MPL-1.0)
  • Mozilla Public License 1.1 (MPL-1.1)
  • Mozilla Public License 2.0 (MPL-2.0)
  • Microsoft Public License (MS-PL)
  • Common Development and Distribution License
  • zlib / libpng license (Zlib)
  1. The contractor may only use open source licenses other than those mentioned in para. 4 with the appropriate consent of the client or if the license fulfills all of the following requirements: 
  • The license permits the client to modify the code without forcing the client to publish the modifying code components
  • The license allows free distribution of object code and source code to third parties 
  1. The open source licenses used are made known to the client in the context of the source code repository.
  2. The client undertakes to take the respective license conditions into account in the further development, distribution, transfer of rights and in a changed use of the software in accordance with the respective license agreements.

§ 11 warranty 

The contractor guarantees that the work results are free from material defects and do not violate the rights of third parties. As part of the legal guarantee, he is particularly obliged to investigate error messages and remedy defects (rectification). The contractor is entitled to choose the replacement delivery instead of the improvement.

 

Part 3 – Software maintenance regulations 

If the contractor also provides care services according to the offer, the following additional regulations apply, unless otherwise agreed in the offer:

§ 1 Service provision in the context of software maintenance 

  1. The contractor typically provides the services specified in the offer as follows:
  • Hosting / support / account management
    The contractor recommends a suitable service provider for the hosting to the client and takes over the necessary communication as well as the necessary technical administration of the hosting and manages the accounts in the Apple app store or in the Google play store. The contractor also supports the client with advice on avoiding errors, eliminating errors and avoiding errors.
  • Product management
    The contractor advises the client on the conceptual development of the software through meetings, workshops, product sketches or in some other way.
  • Maintenance and further development
    The contractor develops the software in terms of quality and modernity, adapts it to changed technical requirements, processes errors that arise after acceptance and leaves the new versions of the software to the customer. Smaller functional expansions are also included. These include, for example, the following services: 

    • Adjustments to new browser versions
    • Adjustments to updates from IOS or Android
    • Technical implementation of new functions
  • Software maintenance is carried out after appropriate professional care in such a way that it is in the interest of all software users. The services are only provided in relation to the last software version and the software version delivered by the contractor immediately beforehand.
  • Design
    The contractor adapts the software to changing graphic requirements. These include, for example, the following services: 

    • Design improvements and graphic services for the integration of editorial content, advertising campaigns by partners in the form of banner advertising (website) and display ads (mobile website and mobile app) within the website and mobile apps.
    • Design work for the further development of the user interfaces of the website and mobile apps as the basis for the technical further development.

§ 2 error definition, error message and error classes 

  1. During the warranty period for software developed by the contractor, errors within the meaning of this paragraph are only those that do not simultaneously represent a defect in the contractual software. 
  2. The client has to report faults to the contractor immediately. The notification can initially be made verbally, but must be repeated in text form, for example by email, at the latest on the next working day. The client will support the contractor in error analysis and rectification of faults by specifically describing the problems that arise and by providing the contractor with comprehensive information. 
  3. Error classes 
  • Error class 1: Defects preventing use: The error prevents the use of the software; a workaround is not available: the contractor starts to rectify the fault immediately, at the latest within four hours after the error message, and continues until the fault is rectified. 
  • Error class 2: Defects that hinder use: The error considerably hinders the use of the software; However, the use of the software is possible with workarounds or with temporarily acceptable restrictions or difficulties: The contractor starts troubleshooting on the same day if an error message is received before 10:00 a.m. usual working hours. The contractor can first identify a workaround and later rectify the error if this is reasonable for the customer. 
  • Defect class 3: Other defects: The contractor begins to rectify the defect within a week or only remedies the defect with the next program status if this is reasonable for the customer. 

§ 3 support

Support times are working days from Monday to Friday: 9 a.m. to 5 p.m. 

§ 4 contract duration

The software maintenance contract has the term specified in the offer. If no term is given, the contract runs indefinitely. The contract can be terminated with a period of 3 months to the end of the minimum term and then to the end of a calendar month. Termination must be in writing. The text form (email) does not meet the written form requirement.