As of April 15, 2024

§ 1 Scope

1.1 These General Terms and Conditions (GTC) apply to all business relationships between iits-consulting GmbH (“Contractor”) and its clients (“Client”). These General Terms and Conditions apply only if the Client is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law, or a special fund under public law within the meaning of Section 310(1) of the German Civil Code (BGB).

1.2 These General Terms and Conditions apply exclusively to all contracts and services.

1.3 Any general terms and conditions of the Client that differ from, conflict with, or supplement these General Terms and Conditions shall only become part of the contract if and to the extent that the Contractor expressly agrees to their validity. This requirement for consent shall also apply if the Client refers to its general terms and conditions in the order and the Contractor has not expressly objected to them.

1.4 These General Terms and Conditions shall apply to additional services and orders even without a new express agreement with the Client, without the Contractor being required to refer to them again on a case-by-case basis.

1.5 Individual agreements made with the Client on a case-by-case basis (including ancillary agreements, supplements, and amendments) and information contained in order confirmations shall take precedence over these General Terms and Conditions. Unless proven otherwise, the content of such agreements shall be governed by a written contract or the Contractor’s written confirmation.

§ 2 Conclusion and Content of the Contract

2.1 The Contractor’s offers are subject to change and non-binding. The Contractor is not bound by its offer to enter into a contract. The Client may accept the offer in writing only within this 14-day period.

2.2 The Client is entitled to request changes to the scope of services specified in the proposal. The Contractor shall review whether the requested changes are feasible and reasonable. All agreed performance deadlines shall be extended by the number of calendar days (plus a reasonable restart period) during which the Contractor reviews the Client’s change requests, prepares change proposals, or conducts negotiations regarding changes.

2.3 A contract for additional services that the Contractor provides under an existing contract at the Client’s request (expansion of the contract) is concluded when
• the Client accepts a new, expanded offer in writing or
• the Contractor confirms a requested service or
• the Contractor begins performing a requested service.

2.4 The Contractor’s offer constitutes—subject to any expansion of the scope of the contract (Section 2.3)—the complete agreement between the parties regarding the subject matter of the contract. Any prior agreements regarding the subject matter of the contract shall cease to be valid upon acceptance of the offer.

2.5 The Contractor will make every effort to accommodate a requested expansion of the contract within the limits of its personnel and time resources, but is not obligated to do so. The Contractor will notify the Client of any refusal within 10 business days of receipt and, if appropriate, submit an alternative proposal.

2.6 The scope of a contract may include:
– Development of organizational concepts, high-level and detailed analyses,
– Creation of custom programs,
– Delivery of library or standard programs,
– Acquisition of software licenses,
– Acquisition of work usage licenses,
– Assistance with implementation (migration support),
– Consulting,
– Software maintenance,
– Creation of software media or other services.

2.7 The development of customized organizational concepts and programs is based on the nature and scope of the binding information, documentation, and resources provided in full by the Client. This also includes practical test data and sufficient testing capabilities, which the Client shall provide in a timely manner, during normal working hours, and at its own expense. If the client is already operating the system provided for testing in live production, the responsibility for backing up the live data lies with the client.

2.8 The basis for the development of customized programs is the written scope of work, which the Contractor has prepared upon request—for a fee based on the documents and information provided to the Contractor—or which the Client provides. The Client must review this scope of work for accuracy and completeness and provide its approval. Requests for changes made at a later date may result in separate agreements regarding deadlines and prices.
If no written scope of work is available at the start of the contract, the contract will be developed based on the proposal at the client’s expense and risk.

2.9 Custom-developed software or program adaptations require program acceptance for the respective software package no later than eight (8) weeks after delivery by the Client. This acceptance is confirmed by the Client in a written report (verification of correctness and completeness based on the service specification accepted by the Contractor, using the test data specified in Section 2.7). If the Client allows the period of eight (8) weeks to elapse without program acceptance, the delivered software shall be deemed accepted as of the end date of the aforementioned period. If the Client uses the software in live operation, the software shall be deemed accepted. Any defects that may arise—that is, deviations from the written service description—must be reported by the Client to the Contractor in a sufficiently documented manner, and the Contractor shall endeavor to remedy the defects promptly. If significant defects are reported in writing (meaning that live operation cannot be started or continued), a new acceptance is required after the defects have been remedied.

2.10 Formal acceptance shall take place only if it has been expressly agreed upon. Unconditional acceptance of the service (in particular, use of the software) shall be deemed acceptance.

2.11 When ordering library (standard) programs, the Client confirms by placing the order that they are aware of the scope of services provided by the ordered programs.

2.12 If, in the course of the work, it becomes apparent that the performance of a contract in accordance with the scope of services is factually or legally impossible, the Contractor is obligated to notify the Client of this immediately. If the Client does not amend the scope of services accordingly or does not create the conditions necessary for performance to become possible, the Contractor may refuse to perform the work. If the impossibility of performance results from a failure on the part of the Client or a subsequent change to the scope of work by the Client, the Contractor is entitled to withdraw from the contract. The costs and expenses incurred up to that point for the Contractor’s work, as well as any dismantling costs, shall be reimbursed by the Client.

2.13 The shipment of software media, documentation, and service specifications is at the client’s expense and risk. Any additional training or explanations requested by the client will be billed separately. Insurance coverage, as well as the preparation and delivery of user documentation, will be provided only at the client’s request and expense.

2.14 The Contractor notes that accessible design (of websites) as defined by the Federal Act on the Equality of Persons with Disabilities (Federal Disability Equality Act – BGStG) is not included in proposals unless specifically requested by the Client. If accessible design has not been agreed upon, it is the Client’s responsibility to verify the service’s compliance with the BGStG. Likewise, the Client must verify the legal admissibility—particularly with regard to competition, trademark, copyright, and administrative law—of any content provided by the Client. In the event of negligence or after fulfilling any duty to warn the client, the contractor shall not be liable for the legal admissibility of content if such content was provided by the client.

2.15 The parties shall cooperate closely and on an ongoing basis in a spirit of partnership during the performance of the contract and the provision of services by the Contractor, and shall consult with one another regularly. The Client shall, to the best of its knowledge and belief, provide the Contractor with the necessary cooperation and support services to the appropriate extent and within a reasonable timeframe, as required for the provision of services and ongoing cooperation, in order to enable the Contractor to perform the contractual services.
If the Client fails to fulfill the obligations to cooperate and provide support (i) properly, (ii) in a timely manner, or (iii) to the agreed-upon or required extent, the Contractor shall not be responsible for any delays in the provision of services to that extent.

§ 3 Execution of Orders

3.1 The Contractor shall perform the agreed services in its own name. Even if services listed in the proposal are not expressly designated as services provided by third parties, the Contractor is entitled, at its own discretion, to perform such services by engaging freelancers, to commission third parties, or to procure materials and/or services from third parties. Such third parties shall be carefully selected with due regard to the required expertise and quality of the services. The engagement of third parties does not require notification to or approval by the Client. Unless it has been expressly agreed that the contract is to be concluded between the third party and the Client, the Contractor shall conclude the contracts with the third parties in its own name.

3.2 If the contract specifies which third parties are to be commissioned to perform a service or from whom services are to be procured, this is binding on the Contractor.

3.3 To the extent that the Contractor engages third-party services or purchases materials from third parties, the Contractor shall grant the Client all rights to the work products or materials to the extent necessary for the Client’s use in accordance with the contract.

3.4 The Contractor is free to choose the place of performance for its services. It is not obligated to perform its services on-site at the Client’s premises or at any location specified by the Client—this also applies to its employees, independent contractors, and other third parties it engages under this Agreement.

§ 4 Client’s Obligations to Cooperate

4.1 The Client is obligated to provide all necessary cooperation in a timely manner so that the Contractor can perform its services in accordance with the contract.

4.2 The Client must, in particular, provide all necessary information and its own materials in full, up-to-date, and in a format that the Contractor can process. If the Contractor specifies requirements regarding transmission, file formats, or the quality of digital content, these must be complied with.

4.3 If information or materials are provided incompletely, inaccurately, in an unsuitable format, or late, thereby delaying the performance of the contract, the resulting additional work shall be borne by the Client. The Contractor is entitled—upon prior written notice—to invoice for this additional work in accordance with Section 4.3, Sentence 2 (Billing for Additional Work). If the service in question is remunerated on a time-and-materials basis according to the offer, the agreed hourly or daily rate applies; otherwise, an hourly rate of EUR 150 net or a daily rate of EUR 1,200 net applies.

§ 5 Client’s Obligations to Inspect and Report Defects

5.1 If the Contractor submits a draft to the Client, the Client is required to review the draft within one week of receipt and to notify the Contractor in writing whether the Client approves the draft or requests that defects be corrected.

5.2 If the Client does not respond in writing within the specified period, this shall be deemed approval of the draft. Any additional costs resulting from a subsequent complaint shall be borne by the Client; Section 4.3, Sentence 2 (Calculation of Additional Costs) shall apply mutatis mutandis.

5.3 Section 5.2 does not apply to defects that could not have been detected during a reasonable inspection.

§ 6 Changes to the Order

6.1 If, after placing the order (Section 2.1), the Client notifies the Contractor of changes to the information or materials provided by the Client or of other requests for changes, Section 4.3, sentence 2 (calculation of additional costs) shall apply accordingly.

6.2 The requested change to the order (as set forth in Section 6.1) constitutes an extension of the order (as set forth in Section 2.3); Section 2.5 therefore applies accordingly.

6.3 A request for a change within the meaning of this Section 6 does not in itself constitute a valid claim for a defect, provided that a draft or work product does not meet the contractually agreed specifications.

§ 7 Delivery Times and Deadlines

7.1 A delivery deadline is considered binding only if it has been confirmed in writing by the contractor upon acceptance of the order.

7.2 Dates that the Contractor merely indicates are non-binding.

7.3 Section 7.2 does not apply to meeting dates agreed upon in writing or to dates that have been expressly agreed upon as binding or as essential within the meaning of a relative fixed-date transaction (Section 323(2)(2) of the German Civil Code (BGB)).

7.4 (Note: It appears that your original text continues under section 8.2. Please check whether a section on delivery times is missing here or whether the numbering needs to be adjusted.)

§ 8 Compensation

8.2 Unless otherwise agreed, compensation is calculated based on the time spent at the hourly or daily rate agreed upon for the service and is due upon completion of the service, unless otherwise agreed.

§ 9 Force Majeure

9.1 Force majeure is an event external to the business, caused by external natural forces or by the actions of third parties, which is unforeseeable according to human judgment and experience and cannot be prevented or rendered harmless by economically reasonable means—including through the utmost care that can reasonably be expected. It is also an event whose occurrence the business owner cannot accept. Force majeure applies in particular to:
– epidemics, pandemics, war, civil unrest, terrorism, sabotage,
– natural disasters such as earthquakes and floods,
– labor disputes involving third parties, traffic accidents,
– Failure of power or telecommunications networks,
– Similar significant operational disruptions,
– Embargoes, sanctions, or other legal or regulatory orders.

9.2 If, due to force majeure, the performance of the service is temporarily impossible or can only be performed with unreasonable difficulty (impediment to performance), the mutual obligations to perform shall be suspended. This suspension shall remain in effect until the impediment ceases; the affected party must notify the other party of this in writing without delay. Subsequently, the affected service must be made up within a reasonable period of time. The period within which the service will be made up must be communicated to the other party in writing.

9.3 The party affected by force majeure must notify the other party as soon as possible of the obstacle to performance and its expected duration.

9.4 If the impediment to performance lasts longer than one month or if it is highly probable that it will last longer than one month, either party may terminate the contract with immediate effect without notice.

9.5 If the Contractor has already performed a partial service, it may claim a pro-rata payment for the service in question, corresponding to the value of the partial service performed. If part of the service involves the granting or transfer of intellectual property rights (in particular copyrights and related rights), the Client shall receive these rights to the extent agreed in the contract (in accordance with Section 8.2) even with respect to partial services already rendered.

§ 10 Copyright and Use

10.1 The results of the services provided are the intellectual property of the Contractor—this applies in particular to concepts, software, programs, and consulting content. Suggestions or other contributions by the Client do not give rise to any co-authorship rights.
The resulting work products may not be reproduced, either in their original form or in a modified form, without express consent. Any imitation, even of parts thereof, is prohibited.

10.2 The Contractor grants the Client the rights of use necessary for the respective purpose within the Client’s company or corporate group, or within the Client’s own legal entity under public law. Unless otherwise expressly agreed, the Contractor grants the Client perpetual, non-exclusive rights to use the deliverables in all media.

10.3 Section 3.3 applies to rights in third-party services and materials, unless the Contractor has indicated any restrictions on such rights in the proposal.

10.4 Should the use of the deliverables give rise to an obligation to pay fees to third parties (e.g., collecting societies such as GEMA in the case of music use), this shall not constitute a breach of the obligation to obtain comprehensive usage rights. In such cases, the Client is solely responsible for obtaining the necessary usage rights and paying the corresponding fees. The Contractor hereby expressly draws attention to a possible obligation to pay remuneration.

10.5 The Contractor must be credited in an appropriate manner when the work is used. For example, © notices (such as those appearing on photographs or in the legal notice of a website or app) must not be removed. If the Contractor is named in the legal notice, a link to their website must be provided.

10.6 The rights of use shall not pass to the Client until full payment of the agreed remuneration for the specific deliverable has been made. Until full payment is made, the Client is permitted to use the services provided only on a revocable basis. If the Client is in default of a payment, the Contractor may revoke the Client’s right to use the relevant services for as long as the payment remains outstanding. Any use beyond this requires the Contractor’s written consent. If use occurs without this consent, the Contractor is entitled to demand compensation in the form of a fee customary in the market.

§ 11 Compensation and Payment Terms

11.1 All amounts stated in quotations are net amounts in euros, plus applicable sales tax.

11.2 The remuneration is based on the Contractor’s price list in effect at the time the contract is concluded.

11.3 The following provisions apply to services requiring acceptance (in accordance with Section 2.9):
11.3.1 If a partial payment has been agreed upon for individual services under the contract, it becomes due upon placement of the order.
11.3.2 The remaining remuneration or the remuneration for a service becomes due upon acceptance. If work results are accepted in parts, an agreed partial payment becomes due upon each corresponding partial acceptance.
11.3.3 Upon completion of the order, the contractor issues a final invoice.

11.4 The provisions of Section 9.2 apply to other services. Unless otherwise agreed, invoices are issued at the end of each calendar month.

11.5 Travel expenses and costs incurred for the procurement of third-party services or materials to which the Contractor has committed under the contract shall be invoiced at the actual amount incurred, unless the procurement of such third-party services and materials is expressly included as part of a fixed-fee service in the proposal. Travel time shall be billed at 100% of the agreed hourly rate.

11.6 Payment is due 14 days after receipt of the invoice. Without an express demand for payment, the Client shall be in default no later than 30 days after the due date and receipt of the invoice. In the event of late payment, the contractor may charge interest on arrears at the statutory rate as well as the statutory late payment fee. The right to claim higher damages or to terminate the contract for cause remains reserved.

§ 12 Rights of Retention

The Client is entitled to set-off or retention rights only if its claim has been legally established or is undisputed and its counterclaim is based on the same contractual relationship.

§ 13 Liability

13.1 The Contractor shall be fully liable for willful misconduct and gross negligence.

13.2 The Contractor shall be liable for simple negligence—except in cases of injury to life, limb, or health—only in the event of a breach of material contractual obligations (cardinal obligations). In such cases, liability shall be limited to foreseeable damages typical for this type of contract.

13.3 Liability for indirect and unforeseeable damages, loss of production and use, lost profits, lost savings, and financial losses resulting from third-party claims is excluded in cases of ordinary negligence—except in cases of injury to life, limb, or health.

13.4 Any further liability—regardless of the legal nature of the claim asserted—is excluded. The following limitations or exclusions of liability do not apply to liability mandated by law on a no-fault basis (e.g., under the Product Liability Act) or to liability arising from no-fault warranties.

13.5 To the extent that liability is excluded or limited under Section 13, this also applies to the personal liability of the Contractor’s employees, workers, representatives, officers, and agents.

§ 14 Prohibition on Poaching

The Client agrees not to solicit any of the Contractor’s employees, either directly or indirectly, during the term of the contract or for a period of two years following the termination of the respective contract. For each instance of a breach of this provision, the Client shall pay a contractual penalty in the amount of two times the gross annual salary (including bonuses and profit-sharing) of the employee in question—the gross annual salary received by the employee in the year prior to the imposition of the contractual penalty shall be decisive in this regard.

§ 15 Data Security

If data—in any form—is transmitted to the Contractor, the Client is obligated to make backup copies of it.
In the event of data loss, the Client must resend the affected data sets to the Contractor free of charge. The Client is aware that there is always a possibility that transmitted data may be intercepted during transmission—the Client accepts this risk. Unless expressly agreed otherwise, all information transmitted to the Contractor shall be deemed non-confidential.
To the extent that the Contractor engages third parties to perform the services, the Contractor is entitled to disclose the data of the contracting parties, provided this is necessary for the performance of the services.

§ 16 Client's Reference

The Contractor is entitled to list the Client as a reference customer on its own website and in other media.

§ 17 Terms of Use for “Homepot.ai”

17.1 The software and all copies made of it are the intellectual property of iits-consulting GmbH.

17.2 Limitation of the Right of Use
17.2.1 The Client is prohibited from creating and distributing derivative works or written materials based on the Software, from modifying, translating, decompiling, or disassembling the Software, or from removing copyright notices, labels, or trademarks.
17.2.2 The Client is prohibited from using equipment, devices, software, information, or other means to remove or circumvent the software protection measures implemented by the Contractor.

17.3 Copyrights
The Contractor is the owner of all property rights, copyrights, trademark rights, and other intellectual property rights in the Software. The Client acknowledges that the Software is protected by copyright and is granted only the right to use it within the limits agreed upon in the contract. The acquisition of any further rights to the software is excluded. In particular, the Contractor reserves all rights of publication, modification, and exploitation. The Client shall be liable for damages resulting from copyright infringements caused to the Contractor by a breach of contract and shall additionally pay a contractual penalty equal to 100 times the monthly software rental fee.

§ 18 Statute of Limitations

Notwithstanding Section 438(1)(3) of the German Civil Code (BGB), the general statute of limitations for claims arising from defects in performance, material defects, or defects of title is one year from delivery. If a contractual acceptance has been agreed upon, the statute of limitations begins upon acceptance.

§ 19 Governing Law and Jurisdiction

This contract is governed by the laws of the Federal Republic of Germany.
The place of jurisdiction is the Contractor’s place of business, provided that the Client is a merchant, a legal entity under public law, or a special fund under public law. However, the Contractor is also entitled to bring an action at the Client’s place of business.

§ 20 Final Provisions

If these General Terms and Conditions require a written statement, transmission via email is sufficient.
Without the Contractor’s express written consent, the Client is not permitted to assign claims against the Contractor to third parties.