These general terms and conditions apply to all contracts between gertrud digital GmbH, Nobistor 10, 22767 Hamburg, Germany (hereinafter: “gertrud” or “we”) and its contractual partners (“Partners”). All services provided by gertrud are subject to the following terms and conditions and are provided exclusively to companies in accordance with § 14 BGB. Regulations deviating from these terms and conditions of business shall only apply on the basis of an individual agreement with our express consent. They shall also apply in the version last included in any contractu-al relationship with the partner for all subsequent and future commissions and services, even if they are not expressly men-tioned again at the time of commissioning.
II. Conclusion of contract, amendments(1) The service contract is concluded by confirmation of a binding offer by the partner or by binding confirmation of a contractual offer of the partner by gertrud. Subject of the contract is exclu-sively the agreed performance as agreed with the partner in each case.
(2) We owe the services agreed with the partner in each case. Under no circumstances do we owe the achievement of a specific economic success beyond the respective performance. When cre-ating customer-specific communication measures such as Internet pages, apps, layouts etc., we do not owe the provision of texts or images under any circumstances, unless expressly our responsi-bility.
(3) Unless otherwise agreed, we provide our services at our busi-ness premises.
(4) Changes to the agreed service must be agreed in text form to be effective. Insofar as the implementation of a change request by the partner affects performance conditions, gertrud may demand appropriate adjustment of remuneration as well as postponement of any agreed deadlines. In case of changes foreseeable additional expenditure, we will notify the partner.
(1) Unless otherwise agreed for project communication, the part-ner shall designate a responsible contact person to make deci-sions or bring about decisions at short notice. This contact person or their deputy, to be appointed in good time, is available for nec-essary information and coordination at short notice if required. Within the framework of project preparation, the contractual partners agree on communication channels applicable to the re-spective project or the entire business relationship. These com-munication channels are binding for both sides for project com-munication and project management. For its part, the customer is responsible for project-friendly communication and provision of information via the agreed communication channels.
(2) gertrud shall take account of the partner’s existing conditions insofar as they become part of the service description. If the cus-tomer requires advice and information before conclusion of the contract, it must inform us of this and, if necessary, obtain advice and information from third parties or from us. If we do not receive notification from the customer in text form, we shall assume that the customer has all knowledge required on their side for the selection, design and use of our contractual services and are not obliged to provide further pre-contractual advice and information.
(3) Unless otherwise agreed, project communication shall normal-ly be in electronic form, in particular by e-mail, through appropri-ate applications or other communication channels agreed between the contractual partners. The partner shall ensure that they take note of and respond to messages and notifications exchanged in the course of communication within a reasonable time and that they actively participate in project communication. In particular, the partner must ensure that no filtering devices on its side pre-vent the receipt and processing of messages.
IV. Third parties
(1) gertrud may, at its due discretion, call in third parties to render services. The responsibility for gertrud’s contractual obligations remains unaffected.
(2) If third parties are not involved in the performance of services at gertrud’s own instigation, but on behalf or at the special re-quest of the partner, gertrud is not liable for these third parties or their performance. gertrud shall only be responsible for the selec-tion or supervision of external services or their service debtors if this has been expressly agreed and is remunerated separately.
V. Duties of the Partner
(1) The partner shall provide gertrud in good time with all infor-mation relevant to the respective order and shall inform gertrud in good time of any problems or change requirements. The partner shall provide gertrud with all access data (log-in/passwords/addresses) necessary for the service in due time or, if no date has been agreed, upon request. gertrud may consider the partner’s notifications to be correct and complete and is not obliged to make inquiries. We shall point out any inaccuracies to the partner if we recognize them. Instructions of the partner are to be given in good time so that a reasonable period for implemen-tation remains.
(2) The partner shall only hand over to gertrud such templates and work equipment whose use by gertrud in accordance with the order does not infringe any third-party rights. The same applies to other contributions, for example to domains provided by the part-ner.
(3) The partner is obliged to create all conditions necessary for the proper execution of the order within its business context. This applies in particular to hardware and software required for the implementation of the service, as well as storage space, insofar as this is not expressly provided by gertrud, and also to remote ac-cess and the provision of network access and access data, insofar as this is required for the execution of the service by gertrud as agreed. The partner must make available to us, in good time and without defects, content, images and other media not to be provid-ed by us which are required for the execution in such a way that they can be incorporated by us as agreed.
(4) For gertrud’s performance, an appropriate project structure on the part of the partner is essential and decisive. The partner shall therefore ensure in particular that sufficient resources and suffi-ciently qualified personnel are deployed and available for the implementation of the project on the part of the partner. If the project is interrupted for reasons for which gertrud is not respon-sible, but e.g. by the partner, gertrud is entitled to suspend the project until a resumption has been agreed with the partner and to invoice for services rendered up to that point. Agreed schedules are null and void in this case. gertrud shall be entitled to compen-sation for any additional expenses incurred as a result of the delay. In addition, gertrud is entitled to a reasonable restart peri-od, even within the framework of agreed plans.
(5) The partner must check data and data media for viruses and other malicious software with a state-of-the-art virus protection program before handing over or transferring them to gertrud.
(6) The partner undertakes to secure data originating from his sphere before it is transferred to gertrud or processed by gertrud and otherwise at regular intervals appropriate to the importance of the data. Our liability in the event of loss of data is limited to the costs of recovery by means of careful and proper backup. Until completion of the project, services provided by gertrud are consid-ered to be unstable and not fully functional, which is why no in-formation relevant to the partner may be stored exclusively in the systems provided, adapted, processed, or otherwise influenced by gertrud, but exclusively elsewhere.
(1) The partner must check services’ contractual conformity as well as preliminary and interim results immediately upon receipt and issue acceptance without delay. gertrud is entitled to demand interim acceptance upon completion of individual work sections. Acceptance of a service shall be deemed to have been granted if the partner does not refuse it within 10 working days of delivery with a meaningful justification or if the partner uses the services deliverable for its business purposes. In the case of previous in-terim acceptances, only the contractual conformity of the last part of the service handed over and the interaction of all parts shall be subject of the acceptance test for the last part of service.
(2) Acceptances are to be declared in text form upon gertrud’s request.
(3) If acceptance is refused, obstacles to acceptance must be de-scribed in detail. Insignificant defects shall not prevent acceptance and shall be remedied by gertrud within a reasonable period of time. A defect shall be deemed to exist if its presence eliminates the suitability of the performance for the agreed purpose or im-pairs it in such a way that this leads to noticeable additional ex-penditure for the partner. Acceptance may not be refused for design and aesthetic reasons alone, as long as no deviation from a design agreed in text form exists.
(1) The delivery or performance date or the delivery or perfor-mance period – hereinafter referred to simply as “delivery date” – is agreed on the basis of gertrud’s expected performance capacity and is subject to unforeseen circumstances and obstacles, in particular force majeure, government measures, sabotage or non-delivery, wrong delivery or late delivery for which gertrud is not responsible, as well as non-performance or poor performance of the partner’s obligations to cooperate. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. In this case, any grace period set by the partner shall also be extended by the duration of the unforeseen event. If a service cannot be provided by gertrud during a current term of the contract for reasons for which the partner is responsi-ble (in particular the provision of necessary cooperation), the contract shall be deemed to be extended by the duration of the delay plus a reasonable period for resumption and provision of the service in accordance with the contract. Alternatively, the partner may waive the provision of the service, provided that it reimburses gertrud for the imputed profit of the services covered by the waiv-er as well as for the costs of any delay for which the partner is responsible.
(2) gertrud shall only be in default on the basis of a reminder from the partner in text form, provided that no transaction for delivery by a fixed date is involved. The agreement of binding delivery dates requires agreement in text form.
(3) If the partner withdraws from the contract in addition to as-serting claims for damages caused by delay or asserts claims for damages instead of performance, the partner must have granted gertrud a reasonable period of grace in text form after expiry of the performance deadline. However, gertrud’s liability is excluded if the damage would also have occurred if the delivery date had been met.
(1) The provisions of this No. VIII. apply to the creation, develop-ment, and provision of software/applications and also to the crea-tion of internet pages (web design) and internet-based applications as well as to services for the processing and adaptation of the aforementioned subjects of performance.
(2) Subject to a separate agreement, gertrud is not obliged to analyze the customer’s existing data, hardware and software and other system environment and is therefore dependent on the customer providing complete information. gertrud shall take ac-count of the customer’s existing conditions insofar as they become a written part of the service description. The customer undertakes to provide us with a final specification of all their requirements for the software prior to conclusion of the contract.
(3) Insofar as the customer’s requirements do not yet result from the terms of reference according to the contract, gertrud shall, upon request and against separate remuneration, detail the per-formance requirements with the customer’s support, draw up a specification and submit it to the customer for approval. This shall be approved by the customer in text form within 14 days if in ac-cordance with the contract. The specification is a binding guideline for further work.
(4) The customer shall notify gertrud in writing of any change requests concerning the object of performance. gertrud shall support the customer in their request and against remuneration in formulating any change request. gertrud is entitled to reasonable remuneration for the examination of requests for changes in accordance with remuneration rates agreed with the customer, or, in the absence of a relevant agreement, in accordance with ger-trud’s current standard rates.
(5) In the performance of services in the field of web content (web-sites, intranet pages and the creation of mock-ups, designs and other design materials; summarized hereinafter as “Website”) we shall create a concept proposal based on the requirements of the customer. After approval of the concept proposal, we will create a block layout representing the graphic design and architecture of the website. The customer shall then examine this block layout and inform us of any objections or change requests. The layout will then be adapted on the basis of the customer’s change re-quests. As far as it is not a matter of rectification of defects, fur-ther requests for adjustment by the customer are considered as a change in performance. Based on the approved block layout, we will then create the final version of the website, to which the regu-lations regarding the acceptance of the block layout apply accord-ingly.
(6) In the case of services in the field of web design and software development, the provision of texts, images and other content is the responsibility of the customer, unless they are to be provided by us in accordance with the order. The customer assumes the obligation to provide the relevant content in the required form in good time.
(7) Unless otherwise agreed, the licensing and provision of media materials (texts, photos, animations, videos, etc.) is exclusively for the respective website. Any other use is not subject to the granting of rights and requires separate agreement.
(8) In the area of software development, we owe the provision or deposit of source codes only insofar as this has been expressly agreed with the customer in text form.
IX. Consulting and services
(1) The provisions of this No. IX apply to the provision of services by gertrud. Services include advising the customer and supporting the customer in the design and implementation of measures, especially in the area of digitization and information technology. Unless otherwise agreed, our services shall always be deemed as provision of services.
(2) Services are provided exclusively on the basis of the infor-mation provided by the customer. If third parties are used for services and the collection of necessary data, these third parties are used in the name and on behalf of the customer, unless oth-erwise agreed.
(3) gertrud shall be responsible for the professional execution of services, taking into account the requirements specified in the order. In the case of consultancy services, gertrud owes a profes-sional recommendation to the best of its knowledge and belief, but not a specific consultancy result in the sense of a specific state-ment or conclusion.
(4) After the order has been placed, additional requirements can only be included as part of an amendment agreement.
(5) gertrud’s services do not include advice and information on legal, insurance or tax matters. The customer shall be obliged to ensure that all requirements existing on their part with regard to the above-mentioned areas have already been correctly and com-prehensively taken into account at the time of the conclusion of the contract and are sufficiently taken into account within the scope of our services. Any additional expenditure resulting from this in the course of the project is to be reimbursed by the cus-tomer.
X. Standard Software
(1) If, in accordance with the terms of the respective contract, we provide the customer with software that has not been adapted to the customer’s individual requirements (standard software), the provisions of this No. X shall take precedence over other provi-sions of these general terms and conditions: The object of the agreement is the transfer of software in object code for the dura-tion of the license, including any user documentation provided as part of the help function integrated in the program, as well as granting the necessary rights of use. gertrud provides the licensee with a copy of the software in digital form, either on suitable me-dia or by making it available for download.
(2) The owed quality of the software is conclusively defined in the license agreement and the associated performance description. If the software contains third-party components, gertrud’s liability and warranty for these third-party components is excluded. In place of our warranty, the assignment of our warranty claims against the respective supplier of third-party components to the respective existing extent shall take place. The customer under-takes to comply with the license terms applicable to the third-party software contained therein and as notified to them. It is not the agreed condition or owed performance that the software will work on any hardware and in any system environment. gertrud owes the compatibility promised for the software, but not general usability for the customer. Furthermore, we are not responsible for the system environment existing at the customer’s premises and are not obliged to examine it. Impairments resulting from hardware, system environment, network, users, or other circum-stances at the customer’s premises do not constitute grounds for claims for defects.
(3) We owe installation and configuration services only on the basis of a separate agreement. Software is provided exclusively in object code and not in source code. Software is delivered with the respective documentation. Creation or provision of further docu-mentation is carried out on the basis of a separate order.
(4) The Client shall be granted the non-exclusive, non-transferable, and non-sublicensable right, limited in time to the term of the license agreement, to use the Software for its own business purposes. Contractual use includes installation as well as loading and execution of the installed software. Type and scope of use are otherwise determined by the license agreement. Unless otherwise expressly agreed and provided for in the license agree-ment, the use of the software is only permitted within the coun-tries specified in the license agreement (if no country is specified, in the countries in which the licensee’s sites specified in the li-cense agreement are located).
(5) The customer is entitled to make a backup copy of the media provided. In addition, the customer is only entitled to copy the software if this is necessary to establish the interoperability of the software with other programs, unless the information necessary for this purpose is made available, either by the manufacturer of the software, or gertrud in response to a written request by the licensee. Beyond the cases mentioned above, the customer is not entitled to copy and/or use the software.
(6) Under no circumstances shall the Client have the right to rent, lend or in any other way sublicense the software, to reproduce it publicly or make it accessible or available to third parties, whether for payment or free of charge, e.g. by way of Application Service Providing or as “Software as a Service”, or to operate or use the software for third parties, unless expressly agreed otherwise with gertrud in writing.
(7) The customer is obliged to protect the software against access by unauthorized third parties by taking appropriate measures. If thesoftware is protected by technical measures from exceeding the authorization of use, the customer undertakes to refrain from any attempts to circumvent the lock.
(8) The customer shall notify us immediately of any unauthorized use. The customer undertakes to pay to gertrud for the license fees payable for any unauthorized use of the software for the entire period of use in the case of proper licensing. If several license models are considered for such unauthorized use, the license model with the highest license fee in each case shall apply in case of doubt. All other claims and rights of gertrud resulting from unauthorized use remain unaffected.
(9) If the customer fails to notify the licensor immediately of any unauthorized use or if the licensor becomes aware of any unau-thorized use without a notification from the licensee, the customer shall be obliged to pay a contractual penalty in addition to the license fee owed in the amount of 50 percent of the license fee normally payable for the unauthorized use. Any further claims of gertrud shall remain unaffected; contractual penalties shall be set off against such claims.
(10) In the event of termination of the right of use, the customer shall cease using the software and remove all installed copies of the program from its computer systems and destroy any backup copies that may have been made.
1) All representations and descriptions of our performance serve, unless expressly stated otherwise or otherwise recorded in text form, only as a description and not as an independent guarantee agreement or as a guarantee promise. Guarantees in the legal sense by gertrud shall only exist if a guarantee agreement is made in text form using the term “guarantee”.
(2) Claims for defects are excluded insofar as a defect is due to faulty instructions, files, and material of the partner or to advance performance or material of third parties for which gertrud is not responsible. This applies in particular to standard software or other third-party software on which our services are based or which our services require in order to function correctly or to achieve the agreed performance result or which is otherwise relevant to our services.
(3) Partner’s claims for defects are limited to subsequent perfor-mance. In the case of failure of correction of performance, the partner reserves the right to reduce the remuneration or to with-draw from the contract.
(4) Claims for defects on the part of the partner lapse within one year of the transfer of risk. This shall not apply where longer periods are prescribed by law, or in cases of injury to life, body, or health, in the event of a willful or grossly negligent breach of duty by gertrud or in the event of fraudulent concealment of a defect. This period begins at the time of transfer of risk. Statutory provi-sions on suspension of the statute of limitations, suspension and recommencement of the periods remain unaffected.
(5) By handing over a service result, gertrud assures that, to ger-trud’s knowledge, the service result is not subject to any third-party rights that conflict with the performance of the contract by gertrud. Apart from the above sentence 1, gertrud is not liable for ensuring that service results produced by gertrud and in particular their use in the partner’s business area do not infringe any indus-trial third-party property rights or competition law. gertrud is not obliged to check measures and services for their legal harmless-ness and is in no case liable for any infringements, in particular of regulations of competition law, trademark and labeling law and copyright. The partner shall indemnify gertrud against any losses, costs, and damages as well as other third-party claims based on infringements of rights as a consequence of the implementation of the partner’s wishes or specifications or on the basis of templates and contents provided by the partner.
(6) The warranty expires for service results altered by the partner, unless the partner proves in connection with the defect report that the alteration is not the cause of the defect.
(7) gertrud may demand reimbursement of its expenses for the inspection of defects if a claim for defects on the part of the part-ner proves to be unjustified.
XII. Other liability
(1) gertrud shall be liable for intent and gross negligence in ac-cordance with statutory provisions. Otherwise, gertrud shall only be liable to the partner in the event of a breach of a material con-tractual obligation (cardinal obligation) and in the event of damag-es arising from injury to life, limb, or health, as well as for any guarantees which may have been assumed. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract as well as those on whose compliance the partner may regularly rely. In the case of negligent but not gross negligent breach of cardinal obligations, liability shall be limited to the foreseeable damage typical for the contract, up to a maximum of half of the total remuneration for the order on which the reason for liability exists, and in this case up to a maximum of Euro 250,000.00. Liability for lost profit is excluded.
(2) The above limitations of liability shall also apply in favor of gertrud’s legal representatives, bodies, employees, and vicarious agents if claims are asserted directly against them and, mutatis mutandis, also for claims by the partner for reimbursement of expenses.
XIII. Rights of use
(1) gertrud shall grant the partner rights of use for the service result (final result) required for the respective intended use. Un-less otherwise agreed in text form, remuneration shall cover the granting of simple, non-exclusive rights of use for the intended purpose, form of use and period of use in accordance with the original order. Any further use, in particular in or on media not expressly covered, in a different geographical area, in edited form (insofar as the editing is not necessary for use as agreed) and/or in a different period of time requires express additional granting of rights. Transfer of rights of use and sublicensing require the written consent from gertrud. Unless otherwise agreed, all rights to interim results shall remain with gertrud in text form. In the event of unauthorized use, the partner is obliged to pay compensa-tion for this use, whereby all further claims and rights of gertrud remain unaffected.
(2) All grants of rights are subject to the suspensive condition of full payment of the remuneration owed for the service.
(3) In the event of unauthorized use, the partner is obliged to pay appropriate remuneration for this use, whereby all further claims and rights of gertrud remain unaffected.
(4) gertrud may also claim third-party rights (third-party license material, such as standard software) for the services. The partner may only use this third-party license material within the scope of the agreed use of gertrud’s services and in accordance with the respective licensing terms.
(5) Even if exclusive rights of use are granted, gertrud is entitled to use service results and their drafts for the purpose of reference and self-advertising, in particular on the internet, naming the partner, from the beginning of our service. gertrud will protect the partner’s business secrets.
(6) Any mention of the partner and projects in gertrud’s customer lists or marketing documents shall be deemed to have been ap-proved from the start of the provision of services.
XIV. Prices and payment
1) Insofar as services are invoiced on a time and material basis and no other arrangement has been agreed between the parties, gertrud shall invoice on a monthly basis.
(2) gertrud’s claims are due upon invoicing and shall be payable within 14 days without deductions. In the event of default, gertrud is entitled to suspend performance until all outstanding claims have been settled in full. Further statutory claims and rights of gertrud remain unaffected.
(3) gertrud retains title of services delivered until all present and future claims arising from the business relationship with the partner have been paid in full.
(4) The partner shall only be entitled to offsetting if its counter-claims are not disputed by gertrud or have been established as final and
absolute. The partner is only entitled to exercise a right of reten-tion insofar as its counterclaim is based on the same contractual relationship.
(5) If no fixed payment dates have been agreed, gertrud is entitled to demand reasonable payments on account when the order is placed and during the performance of services, in particular in the case of interim acceptance, to issue interim invoices for the ac-cepted part of the services and to suspend services in the event of late payment of installments until complete performance has been affected. gertrud may demand advance payment for outstanding services even if different payment schedules exist if, after conclu-sion of the contract, circumstances become known which substan-tially jeopardize the creditworthiness of the partner or if the part-ner is in default of payment to gertrud in respect of other invoices.
(6) If an order cannot or cannot fully be carried out for reasons for which gertrud is not responsible (in particular in the event of termination of the contract by the partner pursuant to § 648 Ger-man Civil Code), the partner shall owe gertrud compensation for loss of performance amounting to 50 (fifty) percent of the remu-neration to be paid for the respective service rendered. Saved expenses will be credited against this, provided the expense is expressly part of the service and actually saved (e.g. travel ex-penses). The partner is entitled to prove lower default damages; gertrud reserves the right to prove higher default damages.
XV. Confidentiality and retention obligtions
(1) gertrud is obliged to safeguard all of the partner’s business secrets that have become known in the course of the contractual relationship with the due and prudent care. Passing on of data is permitted insofar as it serves to fulfill gertrud’s contractual obli-gations towards the customer, in particular to gertrud’s affiliated companies.
(2) Unless a paid archiving agreement is concluded with the part-ner, gertrud is not obliged to retain and hand over data created and stored within the framework of the contractual relationship after its termination.
XVI. No personnel leasing
gertrud does not engage in the leasing of personnel. All rights to issue instructions to gertrud employees are the exclusive property of gertrud. The customer undertakes not to involve gertrud’s employees in its operational processes in a similar way to its own employees, for example by assigning personal telephone numbers, signage, e-mail addresses or in any similar way, provided that they work on the customer’s business premises. Insofar as gertrud employees are involved by the customer in communication with third parties or within the customer’s company, they must in all cases be identified as “external”. Project-related requirements are to be communicated exclusively within the scope of project communication via the communication channels provided for this purpose. In case of doubt, the customer shall inform us about the modalities of the performance of the activity on site and coordi-nate their design with us.
(2) The customer may not make an offer to gertrud’s employees to employ them during the term of this agreement or two calendar years thereafter (non-solicitation). Such an employment contract is equivalent to other offers and agreements on the basis of which the employee’s work no longer benefits gertrud but benefits the customer in whole or in part.
XVIII. Final provisions
((1) The contractual relationship shall be governed by German law under exclusion of the UN Sales Convention.
(2) If individual provisions of these terms and conditions are or become invalid, the validity of the other provisions shall not be affected.
3) The place of performance and place of jurisdiction in relation to a merchant, a legal entity under public law or a special fund under public law is our registered office in Hamburg.
Dated: November 2020