GENERAL TERMS AND CONDITIONS

Basic Terms and Conditions of Delivery and Service of Blackbit digital Commerce Gmbh 

§ 1 General Information

1.
These basic terms and conditions are an integral part of all our offers and contracts for services, including any consultations, even in current and future business relationships without express reference to them. They are supplemented by additional terms and conditions for our services:

• Web design
• Software sales
• Remote use of software (ASP)
• Software development
• Software maintenance
• Provider services..

2.
Other terms and conditions of the customer shall only be binding if agreed in writing. We hereby expressly object to any reference by the customer to its own terms and conditions. Verbal promises and agreements are only binding upon written confirmation.

3.
Our offers are to be understood as a non-binding invitation to conclude a contract. A contract shall only come into effect upon our order confirmation.

4.
The customer may only assign claims arising from the contract with our prior written consent.

5.
Unless otherwise agreed, the respective DIN, ISO or VDE standards, RFC (Request for Comments) of the Internet Engineering Task Force and specifications of the World Wide Web Consortium (W3C) applicable at the time of conclusion of the contract shall apply to technical terms, designations, symbols, quality requirements, format requirements or similar. If one of these standards and recommendations is changed after conclusion of the contract but before fulfillment of the contract, this agreement shall nevertheless remain in effect unchanged. However, we are free to take into account the requirements of the new standard and to refer to it in case of doubt.

6.
If our Basic and Supplementary Terms and Conditions do not contain any or no conclusive provision, the law on contracts of sale or contracts for work and services shall apply in the version of the German Civil Code valid from January 1, 2002.

 

§ 2 Prices

1.
The conditions and price lists applicable at the time of ordering shall apply.

2.
Prices are only valid as fixed prices if confirmed in writing and are subject to the statutory VAT applicable at the time of performance.

3.
If costs beyond our control, such as communication fees, increase by more than 10% after conclusion of the contract, we may increase the prices for services due later than four months after conclusion of the contract on the day the service is provided accordingly.

 

§ 3 Obligations of the Customer to Cooperate

1.
The customer is obliged to provide all information necessary for the performance of our services completely and accurately and, in particular, to specify the scope of services desired by him. If parts of the specifications are definitely not sufficiently specified by the customer, Blackbit digital Commerce will create a functioning solution that corresponds to the current state of the art. Change requests are chargeable author corrections.

2.
Insofar as our services require access to the customer's IT system, the customer must ensure unhindered access, usually by means of direct access via remote data transmission..

3.
When providing services, the customer must provide qualified employees at our request. If, in our opinion, the employees provided do not have sufficient qualifications, we may demand the replacement of the employees within a reasonable period of time.

4.
The customer is obliged to back up its data stocks in a suitable form during test runs or other interventions in its data system or to provide systems isolated from its networks for test runs. He must inform us of any data backups that may not have been made or of any other risks to data stocks. We shall not be liable for any resulting loss of data.

5.
The customer is obliged to perform its obligations in advance. If he does not fulfill his obligations within a reasonable period of time, we may withdraw from the contract and invoice the services rendered up to the withdrawal on a pro rata basis at the agreed remuneration. Further statutory rights remain unaffected by this.

6.
The customer undertakes to keep all passwords of the accesses made available to him carefully and protected from access by third parties and to protect them from misuse and loss. The customer is liable to Blackbit for compliance with the above obligations. He indemnifies Blackbit digital Commerce GmbH from costs and claims of third parties arising from the violation of the above obligations.

7.
Additional expenses caused by insufficient fulfillment of these obligations shall be borne by the customer. This shall be presumed to be the case if we can prove that the expenditure was higher than that offered.

8.
The customer must point out any data that is subject to special confidentiality. He shall indemnify us against any claims by third parties.

 

§ 4 Service Provision

1.
The details of the provision of services are set out in the order form, the order confirmation and the additional conditions for the services to be provided.

2.
We are authorized to have our services provided by third parties at any time.

 

§ 5 Transfer of Risk; Delivery Dates

1.
If our work results are transmitted to a place other than the place of performance, the risk of accidental loss and accidental deterioration shall pass to the customer as soon as we have handed over the work results in embodied form to shipping persons or have made them available in electronic form for transmission via a data transmission network.

2.
Delivery times shall only be deemed to be deadlines within the meaning of fixed trade sales if they are expressly confirmed as such.

3.
Non-compliance with delivery dates and deadlines shall only entitle the customer to assert the rights to which he is entitled after he has set us a reasonable grace period of at least 15 working days, unless this can be dispensed with by law.

4.
If we are prevented from fulfilling our obligations due to unforeseen circumstances that could not be avoided despite reasonable care, the delivery period shall be extended by the duration of the hindrance. This shall also apply in the event of labor disputes, disruptions in our own operations, disruptions in the operations of third parties including network operators (insofar as a replacement cannot reasonably be expected) and disruptions due to measures by public authorities.

5.
We are entitled to make partial deliveries insofar as this does not unreasonably disadvantage the customer.

6.
If neither of the contracting parties requests a formal acceptance or if the acceptance date requested by one party does not materialize due to circumstances for which the customer is not responsible, the contractual service of Blackbit shall be deemed accepted upon use by the customer.

7.
Withdrawal due to deterioration of assets on our part after conclusion of the contract is excluded.

 

§ 6 Payment

1.
We shall issue an invoice for each service, including partial services. Insofar as the additional terms and conditions provide for it, the customer is obliged to make advance payment.

2.
The invoice amount is due and payable immediately.

3.
Settlement of invoices by check or bill of exchange shall be on account of payment and shall require our consent; discount, bill charges and costs shall be borne by the customer.

4.
The customer may only assert a right of retention with regard to a defective service that is based on the same contractual relationship with Blackbit digital Commerce GmbH.

5.
In the event of default of payment, arrears of default interest, protest of a check or bill of exchange or significant deterioration of the customer's assets after conclusion of the contract, we may demand advance payment for further services, make all outstanding invoices due immediately and demand cash payment or security against return of bills of exchange accepted on account of payment.

6.
Interest on arrears shall be calculated in accordance with § 288 BGB.

7.
We charge a fee of € 10.00 for each reminder. The customer shall bear the costs of legal action, including legal reminders.

8.
Offsetting is only permitted with claims that are undisputed by us or have been legally established.

 

§ 7 Quality of Service and Warranty

1.
The contractually owed quality as well as the warranty result in principle from the respective regulations in the additional conditions and in individual cases from the order confirmation.

 

§ 8 Retention of Title

1.
Insofar as software is finally provided in the course of the provision of services, we reserve title to the software until full payment of the agreed remuneration, including any ancillary claims arising from the contract - in the case of merchants until full payment of all claims resulting from the business relationship. If a liability relating to a bill of exchange is established at our expense, the retention of title shall not expire before the bill of exchange has been honored by the customer as drawee.

2.
If the customer defaults on payment, we shall be entitled to take back the software. In order to exercise this right, we are permitted to enter the customer's business premises during normal business hours and to inspect the customer's data storage devices. Withdrawal from the contract (Section 449 (2) BGB) shall be deemed to have been declared if we demand the return of the software delivered under retention of title. Upon receipt of the request for return, but no later than three days after dispatch, the customer is obliged to immediately destroy all copies of the software, to send us embodied software, e.g. in the form of a CD, and to affirm the destruction of the copies in lieu of an oath.

3.
The customer is prohibited from pledging the software or assigning it as security. Furthermore, he shall be obliged to notify us immediately in writing if third parties wish to access the software. All necessary documents, in particular a copy of the seizure protocol for an intervention, must be handed over to us. The customer shall be liable for all damages resulting from such access, in particular for all judicial and extrajudicial costs of an enforcement counterclaim (§ 771 ZPO), insofar as third parties cannot offset these costs.

4.
As long as the customer is not in default, he may resell software if and insofar as the license granted to him permits this. In this case, the customer hereby assigns to us all claims (including VAT) arising therefrom.

5.
The customer shall remain authorized to collect receivables on a fiduciary basis, although this shall not affect our authority to collect them ourselves. However, we shall not make use of this as long as the customer is in compliance with the contract.

6.
If we wish to collect the claim ourselves, the customer must provide the information required to collect the claim, in particular to name his debtors and make documents available and to disclose the assignment.

7.
The right to resell and the authorization to collect the assigned claims shall expire upon suspension of payment or filing for insolvency; the same shall apply in the event of a cheque or bill protest.

 

§ 9 Liability

1.
We shall be liable without limitation for damages caused by us or our legal representatives or vicarious agents in the event of intent and gross negligence.

2.
In cases of slight negligence, we shall only be liable in the event of a breach of a material contractual obligation (one whose fulfillment characterizes the contract and on which the customer may rely), but limited in amount to the direct damages foreseeable at the time of conclusion of the contract and typical for the contract, unless greater damages are proven.

3.
Statutory liability for injury to life, limb or health and in the event of fraudulent intent shall remain unaffected by the limitations of liability. Statutory warranty claims also remain unaffected.

4.
In the event of delay, we shall be liable for 0.5% of the order value per week, but no more than 10% in total. Furthermore, claims for compensation shall be limited to the reimbursement of proven additional costs (covering purchase or substitute performance on the basis of three comparative offers).

5.
In the event of data loss, we shall only be liable for the costs of restoring the data, but not for any consequential damage that may arise, unless we can be accused of intent or gross negligence.

6.
The customer shall indemnify us against any claims asserted by third parties arising from infringement of copyrights or other industrial property rights of third parties insofar as the customer is responsible for the infringement. The same shall apply to violations of data protection regulations.

 

§ 10 Model Protection

1.
The customer may not imitate software provided to him or have it imitated and distribute imitations; this also applies insofar as § 69a) UrhG does not apply. In the event of infringement, we shall be entitled to a contractual penalty of 100% of the license fee (according to the price list valid at the time of infringement). A claim for damages shall remain unaffected by this; no offsetting shall take place.

 

§ 11 Data Protection

1.
Blackbit digital Commerce GmbH expressly points out to the customer that data protection in open networks, such as the Internet, cannot be comprehensively guaranteed according to the current state of the art. The customer is aware that Blackbit digital Commerce GmbH can view the data stored on the servers at any time. Other participants on the Internet may also be able to intervene in the network security without authorization and control the message traffic.

2.
Blackbit digital Commerce GmbH collects, processes and uses personal data insofar as this is necessary for administrative purposes. In doing so, the resulting requirements of the BDSG and the TDDSG are taken into account.

 

§ 12 Privacy

1.
All confidential information and documents which become known to us in the course of the execution of the contract and which are recognizable or designated as such shall be kept secret from third parties and stored in such a way that misuse by third parties is excluded.

 

§ 13 Place of Performance, Place of Jurisdiction, Choice of Law

1.
The place of performance for payment of the purchase price and for other services of the customer shall always be our registered office. The place of performance for our services is also our registered office.

2.
If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Goettingen.

3.
German law shall apply, including the UN Convention on Contracts for the International Sale of Goods (CISG).

 

§ 14 Validity of the Provisions

1.
In the event of the invalidity of individual clauses above, the validity of the remaining provisions shall remain unaffected.

 

Additional Conditions for Web Design

§ 1 Subject Matter of the Contract

1.
The client commissions us to design and create a website. This includes

• the conception
• the graphic design
• the development and integration of content and functions and
• the technical implementation and programming of the website.

2.
The creation of program documentation is only part of the contract if the offer includes such documentation ("Style+Design Guide"). The subject matter of the contract does not include editorial work, the creation and recording of data and texts and the updating of data, content, programming or software after acceptance of the website or the maintenance and care of the website.

 

§ 2 Provision of Services

1. Planning stage

a)

The creation work is preceded by a planning phase. The aim of this planning phase is to work closely with the customer to develop the content, graphic design and layout of the website, as well as the requirements for the functionality, structure and navigation of the website, and to make these binding for the subsequent creation. We shall supplement any gaps in the customer's specifications insofar as this is necessary to achieve state-of-the-art functionality. We will point out any additions to the customer's specifications.

b)
As part of the planning phase, we shall design the layout of the website, the design and arrangement of the content to be integrated into the website, a definition of the procedures by describing the functions desired by the customer, the tasks, the interfaces and the interaction of the functions as well as the information required and to be generated by them, information on the use of standard software/software tools and development tools, information on the documentation to be prepared, regulations on interim acceptance tests and, as far as possible, a schedule.

§ 3 Payment

1.
Remuneration shall be based on actual expenditure, whereby an overrun of no more than 20% of the quoted expenditure shall be deemed agreed.

2. Concept Phase

a)
From the results of the planning phase, we will create an initial, written rough concept and present it to the customer

b)
After submitting the rough concept, the customer will inform within 14 days whether and - in the case of several proposed solutions - with which of the solution(s) proposed by us to implement his content specifications, in particular the suggestions made for the graphic and other artistic design of the website, he agrees. The customer will submit any requests for changes or additions in writing.

c)
Following the rough concept, we create a detailed fine concept based on the rough concept and any other content specifications and revision requests from the customer, which contains the complete concept of the individual content of the website with texts and the layouts of the most important pages.

d)
The detailed concept requires acceptance by the customer and forms the basis for the subsequent creation after acceptance. It shall be deemed accepted unless the customer objects to it in writing within 14 days of receipt.

e)
If the customer wishes to make a significant change to the basis of the rough concept, we are entitled to submit an updated offer for the total remuneration to be paid by the customer for the planning and creation of the website, taking into account payments already made. taking into account payments already made. If the customer does not accept this offer, we may withdraw from the contract in return for payment for the services provided to date.

3. Creation phase

a)
The customer shall provide us with any content (texts, images, music, graphics, logos, tables, etc.) to be incorporated into the website - free of third-party rights - in the form specified in the detailed concept on the dates specified therein. Unless otherwise agreed, the customer shall be solely responsible for the procurement or production of such content.

b)
In order to accept the website, it shall be fed into the Internet on a trial basis for the duration specified in the schedule. If this test run runs without any objections, the website is deemed to have been accepted.

4. Orders on a Smaller Scales

a)

In the case of an order volume of less than €10,000, Blackbit digital Commerce GmbH is entitled to shorten the above-mentioned procedure in order to maintain the proportionality of project-related and productive work in the sense of optimal service provision. In this sense, planning and conception up to the detailed concept are combined in one project phase.

b)
The client shall pay the remuneration in installments; 25% upon placement of the order, 25% upon completion of the conception phase and 50% upon acceptance or fiction of acceptance in accordance with § 2 3b.

 

§ 4 Rights Granted

1.
Upon full payment, we shall grant the customer the right, unlimited in time, space and content, to use and exploit the work results (website) on the Internet and in other online services, in particular to load them into RAM and onto hard disks of an Internet server and, if applicable, onto servers of a provider, and to make them available or provide them there for retrieval and/or access by third parties, to publish, reproduce, distribute or publicly reproduce them. The transfer of these rights of use to third parties - in particular licensing - requires prior written consent. In the event that material breaches of contract are established, we shall have the right to revoke the license granted above.

2.
This transfer of rights includes the non-exclusive license to the standard programming tools and standard program modules we use.

3.
No further rights to the work results are transferred to the customer. Any translation, editing, reworking, processing or use of the original of the computer program underlying the website or its source code for purposes other than their use within the scope of the rights transferred to the customer above requires prior written consent.

4.
The customer will include references to our authorship in the imprint of the website and undertakes to maintain any copyright notices and other protective notices unchanged when using the contractual website.

 

§ 5 Service Owed Quality

1.
The website is deemed to be in accordance with the structure and content of the detailed concept and the inclusion of the content provided by the customer, to the extent that this is possible given the state of the art. This also includes deviations from the detailed concept to the extent that they are necessary based on the state of the art.

2.
Compatibility with the software for Internet browsers or operating systems specified in the specifications and in particular with the editorial system mentioned there is also deemed to be owed. If the specifications do not contain any information about the software, compatibility with the state-of-the-art software required for the creation and operation of the website is deemed to be agreed. The customer is aware that compliance with all technically conceivable combinations of browsers and operating systems represents an objectively impossible service due to the variety of possible constellations.

 

§ 6 Warranty

1.
We guarantee that the website complies with the quality of services owed. If there are defects after acceptance, we will, at our discretion, correct the deviations or create a new website in whole or in part. If we do not succeed in this after two attempts (unless the customer is permitted by law to immediately transfer to the warranty rights for defects), the customer can withdraw from the contract, reduce the remuneration or demand compensation.

2.
The customer is obliged to report defects in writing immediately after they are discovered. The notice of defects must contain a detailed description of the defect. Upon request, the customer will provide us with documents, information and other support to a reasonable extent that we need to assess and eliminate the defects that have occurred.

3.
The warranty does not apply if the customer changes or edits the website created by us or has it changed or edited by third parties. The same applies if the customer tries to repair defects that have arisen themselves or tries to have them repaired by third parties. This does not apply to editorial content that the customer has entered himself using an editorial system approved by Blackbit.

 

Additional Conditions for Software Creation

§ 1 Subject of the Contract

1.
The customer commissions us to create software according to the service description provided.

2.
The creation of a program manual is the subject of the contract. The subject matter of the contract does not include updating programming or software after acceptance of the software or maintenance and care.

 

§ 2 Performance

1. Description of Services

a)
The customer must provide a service description based on the state of the art, which contains all parameters for the software desired or, at our discretion, provide binding information about the parameters. All statements made by the customer's employees are considered binding, regardless of any authority based on corporate membership, power of attorney or power of attorney.

2. Konzeptionsphase

a)
We check the service description for consistency and completeness. If we discover any indecision or gaps, we will inform the customer and, if possible, make suggestions for remedial action. We may withdraw from the contract if any indecision or gaps in the service description that are essential to its creation are not remedied within a reasonable period of time.

b)
At the request of the client, we will work on a revision of the service description for separate remuneration on a daily rate basis.

3. Creation Phase

a)
The basis for creating the software is the service description, possibly in a revised version.

b)
At the customer's request, we report on the status of development and provide presentable preliminary versions. If creating such a presentable preliminary version requires additional effort, we will invoice this on a daily rate basis.

c)
We create state-of-the-art documentation of the developed software and development steps, which is available for the customer to view.

d)
The creation phase ends with our approval of the software for acceptance and transmission of the software including source code by email and/or by copyable data carrier, whereby the software may be provided with protection against more than one installation.

4. Acceptance of the Software

a)
Once we have released the software for acceptance, the customer must declare acceptance within 7 days. Commissioning outside of test runs is considered acceptance.

b)
In the context of acceptance, the usual test runs according to the state of the art or other measures relevant to checking the software quality, e.g. B. by implementing the software in test systems.

c)
The customer must document the results of the test runs; Defects in the documentation are at his expense. If there is no documentation of the test runs, it is assumed that the software is free of defects.

 

§ 3 Compensation

a)
Remuneration is based on actual effort, whereby an excess of the offered effort by no more than 20% is deemed to be agreed.

b)
The customer must pay the remuneration in installments; 1/3 when the order is placed, 1/3 upon completion and 1/3 upon acceptance.

 

§ 4 Rights Granted

1.
Upon full payment, we grant the customer the exclusive right, unrestricted in terms of time and space, to use the software for the purposes in accordance with the service description, in particular to load and copy it onto RAM and hard drives at its own disposal. The transfer of these usage rights to third parties - in particular sublicensing - requires prior written consent. The exclusivity only applies to the components of the software that were created for the customer.

2.
No further rights to the work results are transferred to the customer. Any sale, rental or lending of the software is prohibited. Any translation, editing, reworking, processing, making publicly available or other use of the software for purposes other than its use within the scope of the rights transferred to the customer above requires prior written consent.

3.
Decompilation of the software may only be carried out for the purpose of making the software compatible with software used by the customer and requires prior consent, unless consent cannot be obtained from us within a reasonable period of time, e.g. B. in the event of bankruptcy.

4.
The above regulations apply accordingly to the manuals or other documentation created for the software, even if these are not subject to copyright.

 

§ 5 Service Owed Quality

1.
We owe the creation of software based on the service description that is able to fulfill the parameters specified therein under normal application conditions on commercially available data processing systems. The benchmark for development is the state of the art at the time the contract was concluded.

 

§ 6 Warranty

1.
We guarantee compliance with the quality of services owed. If there are defects after acceptance, we will, at our discretion, correct the deviations or create completely or partially new software. If we do not succeed in this after two attempts (unless the customer is permitted by law to automatically transfer to the warranty rights for defects), the customer can withdraw from the contract, reduce the remuneration or demand compensation.

2.
The customer is obliged to report defects in writing immediately after they are discovered with a detailed description of the defect. Upon request, the customer will provide us with documents, information and other support to a reasonable extent that we need to assess and eliminate the defects that have occurred.

3.
The warranty does not apply if the customer changes or edits the software created by us or has it changed or edited by third parties. The same applies if the customer tries to repair defects that have arisen themselves or tries to have them repaired by third parties.

 

Additional Terms and Conditions for Software Sales

§ 1 Subject of the Contract

1.
The subject of the contract is the transfer of software and the granting of usage and exploitation rights thereto.

 

§ 2 Performance

1.
The software is handed over to the customer without source code, only with object code, via email and/or on a copyable data carrier, whereby the software may be provided with protection against more than one-time installation.

 

§ 3 Rights Granted

1.
Upon full payment, we grant the customer the simple, non-exclusive right, unlimited in time and space, to use the software for the purposes in accordance with the service description, in particular to load and reproduce it in RAM and hard drives, in particular for backup purposes. The transfer of these usage rights to third parties - in particular licensing - requires prior written consent.

2.
No further rights to the work results are transferred to the customer. Any sale, rental or lending of the software is prohibited. Any translation, editing, reworking, processing, making publicly available or other use of the software for purposes other than its use within the scope of the rights transferred to the customer above requires prior written consent.

3.
Decompilation of the software may only be carried out for the purpose of making the software compatible with software used by the customer and requires prior consent, unless consent cannot be obtained from us within a reasonable period of time, e.g. B. in the event of bankruptcy.

4.
The above regulations apply accordingly to the manuals or other documentation created for the software, even if these are not subject to copyright.

5.
The rights granted generally only refer to use on one computer (license), unless the customer has purchased a multiple license. The license fees charged by Blackbit digital Commerce GmbH depend on the frequency of use (number of simultaneous visits, concurrent sessions). If the customer uses the software on more than one computer without a corresponding license or if the use exceeds the frequency provided for in the license, the customer must pay the corresponding license fees without further ado, with a surcharge of 50%. Any additional payments are due immediately.

 

§ 4 Compensation

1.
The price list valid for the term of the contract is decisive for the remuneration.

 

§ 5 Service Owed Quality

1.
We owe software according to the quality as shown in the respective product description and the state of the art at the time the contract was concluded; Updates or upgrades after conclusion of the contract generally do not affect the quality owed. The suitability of the software for a specific purpose is not guaranteed unless this is stated directly in the product description. Reference to application examples or technical standards does not constitute a description of the contractually agreed quality.

 

§ 6 Warranty

1.
Wir gewährleisten die Übereinstimmung mit der geschuldeten Leistungsbeschaffenheit. Bei Mängeln beheben wir nach unserer Wahl die Abweichungen oder erstellen vollständig oder teilweise eine neue Leistung. Gelingt uns dies nach zweimaligen Versuchen nicht (es sei denn, der Kunde darf von Gesetzes wegen ohne Weiteres zu den Mängelgewährleistungsrechten übergehen), kann der Kunde vom Vertrag zurücktreten, die Vergütung mindern oder Schadenersatz verlangen.

2.
The customer is obliged to report defects in writing immediately after they are discovered. The notice of defects must contain a detailed description of the defect. Upon request, the customer will provide us with documents, information and other support to a reasonable extent that we need to assess and eliminate the defects that have occurred

3.
The warranty does not apply if the customer changes or edits the software created by us or has it changed or edited by third parties. The same applies if the customer tries to repair defects that have arisen themselves or tries to have them repaired by third parties.

 

Additional Conditions for Remote Use of Software (Asp)

§ 1 Subject of the Contract

1.
The subject of the contract is the granting of rights for remote use of software as well as the associated services: web design, provider services and software maintenance.

 

§ 2 Performance

1.
With the full payment of a one-time setup fee and a rental security amounting to three months' rent, Blackbit digital Commerce GmbH creates the concept of a website suitable for operating the software, creates it or adapts an existing website for the subsequent operation of the software. Blackbit grants the customer the non-exclusive right to use the software in accordance with the service description on the servers provided by Blackbit for the duration of the contract. To use the software, Blackbit digital Commerce GmbH operates an operating environment for the customer, hosts the software on this operating environment and provides software maintenance in the form of technical support and the provision of updates.

 

§ 3 Performance Quality

1.
The contractually owed quality and the warranty basically arise from the respective regulations in the additional conditions for:

• Web design
• Software maintenance
• Provider services
• and in individual cases from the order confirmation.

§ 4 Compensation

1.
As compensation, the customer pays Blackbit digital Commerce GmbH a monthly flat rate plus a one-time setup fee.

 

§ 5 Duration

1.
The contract for remote use of software can be terminated with four weeks' notice to the end of the contract term. If termination is not given, the contract will be extended by a further 12 months. The declaration of termination must be made in writing.

 

§ 6 Early Termination

1.
The customer can terminate the contract before the end of a certain term if the use of the software no longer has any economic benefit, e.g. because there is a lack of staff capacity to update the pages. In the event of extraordinary termination, the customer pays flat-rate compensation in the amount of the setup fee plus the monthly flat rate due until the end of the term, less variable costs that no longer apply.

 

§ 7 Warranty and Liability

1.
Warranty liability based on § 536a) ff. BGB is excluded. Furthermore, Blackbit only guarantees compliance with certain technical parameters to the extent that this is expressed in the service description.

2.
Blackbit acts to the best of its knowledge and belief based on the state of the art. Blackbit's liability outside of the warranty under this contract for foreseeable damages is limited to the total amount that the customer has to pay during the twelve-month term. In the event of data loss, Blackbit is only liable for the costs of restoring the data, but not for any consequential damage that may arise, unless Blackbit can be accused of intent or gross negligence or damage to life, body or health.

 

Additional Conditions for Software Maintenance

§ 1 Subject of the Contract

1.
Depending on the scope of the order, we either provide updates or technical support for the software we supply for a separate fee.

 

§ 2 Scope of Services Updates

1.
Updates are modifications to our software in functionality and/or performance capabilities, which are identified by a change in the version number before the decimal point.

2.
The update will be provided after prior notice based on the software without individual adaptation.

3.
If the customer provides remote maintenance access (SSH, FTP or customer-specific), the installation is free of charge. Otherwise, the effort, including any necessary individual adjustments to the update, will be billed separately in accordance with our price list.

4.
With full payment, the customer receives exploitation rights to the update in accordance with the software purchase regulations.

 

§ 3 Scope of Technical Support

1.
Technical support includes us answering questions asked by email or telephone that go beyond eliminating faults within the scope of a warranty for defects (assistance service). In addition, technical support includes the provision of revisions d. H. Modifications to our software, which are identified by sequential numbers after the version number dot.

2.
During the contract term, the customer can use our assistance service from Monday to Thursday from 9:00 a.m. to 5:00 p.m. and Friday from 9:00 a.m. to 1:00 p.m. The questions can be asked in German or English.

3.
Depending on the level of support ordered, a certain response time is required and the questions can be asked at different times and by different customer contacts.

4.
Any use that exceeds the requested support level will be billed separately at prorated daily rates according to the current price list.

5.
At our request, the customer provides complete information about the configuration and topology of his computer system and network and its system settings. The customer must notify us immediately of any changes to the information stored.

6.
If our terms and conditions do not contain any provisions, service contract law applies.

 

§ 4 Compensation

1.
The price list valid for the term of the contract is decisive for the remuneration.

 

§ 5 Service Owed Quality

1.
We owe an update according to the condition as shown in the respective product description and the state of the art at the time the update was created. The suitability of the update for a specific purpose is not guaranteed, unless this is clear from the product description. Reference to application examples or technical standards does not constitute a description of the contractually agreed quality.

2.
We provide consulting services to the best of our knowledge and belief based on the information provided to us by the customer, which we assume to be accurate.

3.
We eliminate faults using state-of-the-art technology. The customer is solely responsible for securing the data.

 

§ 6 Guarantee for Updates

1.
We guarantee compliance with the quality of services owed. In the event of defects, we will, at our discretion, correct the deviations or create a new service in whole or in part. If we do not succeed in this after two attempts (unless the customer is permitted by law to automatically transfer to the warranty rights for defects), the customer can withdraw from the contract, reduce the remuneration or demand compensation.

2.
The customer is obliged to report defects in writing immediately after they are discovered with a detailed description of the defect. Upon request, the customer will provide us with documents, information and other support to a reasonable extent that we need to assess and eliminate the defects that have occurred.

3.
The warranty does not apply if the customer changes or edits the software created by us or has it changed or edited by third parties. The same applies if the customer tries to repair defects that have arisen themselves or tries to have them repaired by third parties.

 

§ 7 Duration

1.
The contract for software maintenance runs for one year and is extended by one year if it is not terminated with three months' notice to the end of the contract term. The declaration of termination must be made in writing.

 

Additional Terms and Conditions for Provider Services

§ 1 Subject of the Contract

1.
The customer commissions us to provide the following services:

• Hosting

• Email service

• User statistics

• Domain management.

 

§ 2 Performance

1. Availability

a)
Blackbit digital Commerce GmbH guarantees an availability of its servers of 99% on an annual average. This does not apply to times when the server cannot be reached via the Internet due to technical or other problems that are beyond Blackbit's control (force majeure, fault of third parties, etc.). Blackbit digital Commerce GmbH can restrict access to the services if the security of network operations, the maintenance of network integrity, in particular the avoidance of serious disruptions to the network, the software or stored data requires this.

2. Transfer Volume

a)
Unless otherwise agreed, a data transfer volume of one gigabyte per month is included. The data transfer volume used is the sum of all data transfers related to the customer order (e.g. emails, downloads, uploads, websites). To determine the data transfer volume, one gigabyte corresponds to one thousand megabytes, one megabyte corresponds to one thousand kilobytes, and one kilobyte corresponds to one thousand bytes.

3. Hosting

a)
We store all files required to create the customer's website on the servers available to us and provide additional storage space upon separate agreement.

b)
The customer is obliged to design his website in such a way that there is no excessive load on the server, e.g. B. is avoided by CGI scripts that require high computing power or use an above-average amount of memory. Blackbit digital Commerce is entitled to exclude pages that do not meet the above requirements from access by the customer or third parties. Blackbit digital Commerce will immediately inform the customer of such a measure. Blackbit digital Commerce will make the relevant pages accessible again if the customer proves to Blackbit digital Commerce that the pages have been redesigned so that they meet the above requirements.

c)
Every web hosting offer contains a defined inclusive data transfer volume per month. Blackbit digital Commerce GmbH will provide volume for additional data transfer within the scope of the technical performance of the data center, taking into account the service obligation towards other customers, for an additional fee, the amount of which is determined from the currently valid price list.

d)
The customer is obliged to mark content posted on his website as his own content, stating his full name and address. The customer is advised that there is a legal labeling requirement that goes beyond this, e.g. B. may exist if teleservices or media services are offered on the Internet pages. The customer releases Blackbit digital Commerce GmbH from all claims based on a breach of the aforementioned obligations.

e)
The customer may not violate legal prohibitions, morality and the rights of third parties (trademarks, name rights, copyrights, data protection rights, etc.) through the Internet presence, the banners displayed there and the designation of his e-mail address. In particular, the customer undertakes not to offer or allow to be offered any pornographic content or any services aimed at making a profit that involve pornographic and/or erotic content (e.g. nude pictures, peep shows, etc.). The customer may not enter his Internet presence in search engines if the customer violates legal prohibitions, common decency and the rights of third parties by using keywords during the entry. For each case of violation of one of the above obligations, the customer promises Blackbit digital Commerce GmbH to pay a contractual penalty in the amount of 5,050.00 (in words: five thousand and fifty) euros, excluding the assumption of a continuation connection.

f)
Blackbit digital Commerce is not obliged to check the customer's Internet presence for possible legal violations. After detecting legal violations or content that is inadmissible according to the above regulations, Blackbit digital Commerce GmbH is entitled to block the tariff. Blackbit digital Commerce GmbH will immediately inform the customer of such a measure.

4. Email Service

a)
We provide the customer with an email service that technically makes it possible to receive and send messages. The customer must check incoming messages in his e-mail inboxes at regular intervals of no more than four weeks. Blackbit digital Commerce GmbH reserves the right to return personal messages received by the customer to the sender if the capacity limits provided for in the respective tariffs are exceeded. The retention period for emails is at least 80 days.

b)
The customer undertakes not to send or have sent any emails containing advertising without the express consent of the respective recipient. This is particularly true if the emails in question, each with the same content, are distributed en masse (so-called “spamming”). If the customer violates the aforementioned obligation, Blackbit digital Commerce GmbH is entitled to block access to the server immediately.

5. User Statistics

a)
Blackbit digital Commerce GmbH provides the customer with meaningful, state-of-the-art usage statistics about third-party access to the website, including a corresponding evaluation, as well as the use of the email service.

 

6. Domain Management

a) 
The different top-level domains (“final abbreviations”) are managed by a variety of different, mostly national, organizations. To the extent that top-level domains are the subject of the contract, the procurement obligations and guidelines of the respective responsible organizations also apply. If .de domains are the subject of the contract, the DENIC registration conditions and guidelines apply.

b)
When procuring and maintaining domains, Blackbit only acts as an intermediary in the relationship between the customer and the respective domain allocation organization. Blackbit has no influence on the allocation of domains and does not guarantee that the domains requested for the customer will be allocated, are free of third-party rights and will last in the long term.

c)
The customer guarantees that the domain requested by him does not violate the rights of third parties. The customer shall indemnify Blackbit digital Commerce GmbH, its employees and vicarious agents, the respective organization for allocating domains and other parties from third-party claims for compensation as well as all expenses that are based on the unauthorized use of an Internet domain by the customer or with the approval of the customer people who have registered are free.

d)
The customer is obliged to immediately notify Blackbit digital Commerce GmbH of any loss of his domain. If the customer intends to repurchase his domain from a third party, he is obliged to immediately inform Blackbit digital Commerce GmbH about the start of negotiations with the third party and to answer inquiries from Blackbit digital Commerce GmbH about the status of the negotiations with the third party and to grant Blackbit digital Commerce GmbH the priority right of repurchase for the customer if and to the extent that this does not unreasonably prejudice the interests of the customer.

7. Service and Support

a)
Blackbit digital Commerce GmbH provides the user with customer service from Monday to Thursday from 9:00 a.m. to 5:00 p.m. and Friday from 9:00 a.m. to 1:00 p.m. in order to correct any errors in access to the host server immediately or, if this is not objectively possible, within to be eliminated within 24 hours at most.

 

§ 3 Service Owed Quality

1.
All services will be provided in accordance with the state of the art applicable at the time the contract is concluded. The customer is responsible for the content of the files that the customer provides to us to create the website and store it on the host server. He undertakes not to include any illegal content in these files.

 

§ 4 Compensation

1.
The price list valid for the term of the contract is decisive for the remuneration.

 

§ 5 Warranty

1.
The user must report defects within 3 working days by fax, email or letter. He can demand immediate improvement. If we do not provide a satisfactory repair within 48 hours, the customer is entitled to either terminate the contract without notice or to reduce the price. If the deadline of 48 hours turns out to be objectively too short, the deadline for improvement will be extended by a reasonable period of time.

 

§ 6 Duration

1.
The provider contract runs for an indefinite period of time. Each party is entitled to terminate the contract with three months' notice to the end of the respective month. The right to termination without notice for good cause remains unaffected.

2.
Blackbit digital Commerce GmbH is entitled to release the domain after the termination takes effect. This means that all of the customer's rights from registering the domain expire.

3.
If third parties make claims against Blackbit digital Commerce GmbH due to actual or
If an alleged legal violation is asserted in accordance with Section 2.3.c, Blackbit digital Commerce GmbH is entitled to immediately place the customer's domain in the care of the registrar and to block the customer's presence.

4.
The subject of this contract are all domains requested by the customer, insofar as they have been allocated to the customer. If individual domains are terminated by the customer or due to binding decisions in domain disputes, the customer has no right to request a free replacement domain. There will be no refund for individual domains or for additional, individually booked domains in the event of early termination, unless Blackbit digital Commerce GmbH is responsible for the termination. This also applies to other separable individual services or additionally booked options.

5.
We have a right of retention to the files that create the website or other components of the Internet presentation.