Terms and Conditions

General Terms and Conditions Business Customers (B2B)

July 2019

1. Scope of application/defensive clause

1.1 The following general terms and conditions apply to all legal transactions of NDCom Digital GmbH & Co. KG, hereinafter referred to as "Provider", with its commercial contractual partners, hereinafter referred to as "Customer". Deviating general terms and conditions of the customer do not apply.

1.2 Our terms and conditions shall apply only to natural persons and legal entities who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs) as well as to legal entities under public law and special funds under public law.

1.3 These terms and conditions shall apply exclusively to all our services, including future services. Deviating or additional terms and conditions of the customer shall not be binding for us, even if we do not object to them in individual cases, unless we accept them in writing. In this case, they shall only apply to the respective individual contract. Any special agreements made between us and the customer shall remain unaffected.


2. Conclusion of contract

2.1 Our "offers" are non-binding invitations to the customer to conclude a contract with us. The contract is concluded when we accept an order from the customer. This generally occurs by means of an order confirmation, by providing the offered service or delivery of the offered goods or by issuing an invoice.

2.2 The customer is bound to his order for a period of four weeks from receipt by us.


3. Remuneration

3.1 Insofar as daily rates are agreed, these shall cover a work performance of eight hours per working day. In case of a lower hourly effort, this rate shall be reduced accordingly, in case of a higher hourly effort, this rate shall be increased accordingly per full hour.

3.2 Travel costs as well as expenses and other incidental costs are not included in the remuneration and will be invoiced by us according to the expenses incurred and against receipt. Travel time is only included in the daily rate for assignments of eight hours per day. For assignments of less than eight hours, travel time (up to a maximum of the daily rate) will also be charged.

3.3 We shall invoice on a monthly basis, if agreed, upon submission of proof of activities. We must be notified in writing of any objections to an activity record within two weeks, otherwise the activity record shall be deemed approved.

3.4 The remuneration shall be due for payment immediately upon receipt of the invoice.

3.5 All amounts are exclusive of the value added tax applicable at the time the tax liability arises.

3.6 The customer shall only have the right to withhold payments or to set off payments against counterclaims to the extent that its counterclaims are undisputed or have been finally determined by a court of law.

3.7 If the customer does not make use of agreed services in whole or in part contrary to the contract, we shall nevertheless be entitled to remuneration as if the contractually agreed services had been provided; we are prepared for this in terms of personnel and technology. The remuneration to be paid by the customer in this case, taking into account any expenses saved, shall amount to 80% of the remuneration in the case of contractual performance, unless the customer proves higher expenses saved or we prove lower expenses saved.


4. Obligations of the contractor

4.1 We will advise the customer on the design options and possible functionalities of the projects. We will inform the customer about general knowledge that we have of the habits and needs of Internet users (e.g. with regard to loading times, weighting of texts and graphic elements).

4.2 We will use programming languages ​​that correspond to the current state of the art. We will coordinate with the customer the screen resolution and the Internet browsers on which the website is to be designed.

4.3 A separate agreement must be concluded for support after the termination of this contract.


5. Cooperation of the customer

5.1 The successful provision of the services by us requires intensive cooperation with the customer. Our obligation to perform is suspended as long as the customer is not only insignificantly in arrears with a liability. Any costs incurred by us as a result of non-fulfillment of this obligation shall be borne by the customer.

5.2 The customer provides us with the content to be integrated into the projects, in particular texts, images, logos, tables and other graphics. The customer alone is responsible for producing the content. We are not obliged to check whether the content provided by the customer is suitable for the purposes pursued with the project. However, we will point out any obvious errors. We will inform the customer in which form and in which file format the content is to be provided. The customer releases us from all third-party claims that are asserted against us due to the violation of third-party rights through the use of the content provided by the customer.

5.3 Insofar as test runs or acceptance tests, presentations or other meetings become necessary or expedient, the customer will assign competent employees who are authorized to make the necessary decisions to participate.

5.4 If we provide the customer with suggestions, drafts, test versions or the like, the customer will carry out a quick and careful examination, especially if releases are required to continue the work, and immediately notify us of complaints and change requests or give the releases.

5.5 The customer ensures that he/she provides the cooperation actions required for the performance of the services (e.g. texts, images, logos, approvals) in good time. It is an essential obligation of the customer. If the customer does not meet his/her obligations to cooperate in a timely manner or adequately, we are released from the obligation to provide the services.

5.6 The customer is responsible for backing up the entire data stock at least every working day, unless more frequent data backups (e.g. before tests) are appropriate or necessary.

5.7 The customer will notify us of changes to its hardware and software environment as early as possible and inform us in good time about all planned changes to its hardware and software environment, insofar as they are relevant to the services (in case of doubt, the customer will coordinate with us), otherwise the service costs will increase can increase significantly.

5.8 All of the customer's cooperation services are free of charge for us.


6. Execution of the contract, changes in performance, default

6.1 We use up-to-date virus protection programs. The customer is nevertheless obligated to examine software with up-to-date virus protection programs before using it on its systems. Likewise, before providing us with data or programs, the customer is obliged to examine them with up-to-date virus protection programs.

6.2 Both parties can propose changes, in particular additions, to the agreed scope of services. If the customer proposes a change in writing, we will inform you immediately, within 10 working days, whether the change is possible and what effects it will have on services, costs and deadlines. If the review of the proposed change itself may affect deadlines, we will inform the customer before the review begins. We can demand reasonable compensation for a necessary extensive examination of whether and under what conditions a desired change can be implemented, provided that the provider informs the customer beforehand of the necessity of this examination and the customer places a corresponding order. In the event of a change proposal by the contractor, the customer must inform us immediately within 10 working days whether he agrees to the change. If approval is not given or is refused, we will continue the activities according to the existing service description.
Changes to the scope of services must be agreed in writing by the parties.

6.3 In the event of default on the part of the Contractor, the Customer may only withdraw from the contract or claim damages in lieu of performance if it has set us a reasonable deadline for the performance of the contractual service with the simultaneous threat that acceptance of the service will be refused thereafter.

6.4 We may use third parties (e.g. subcontractors, freelancers) to provide services.


7. Rights

7.1 After full payment of the remuneration, the customer receives an exclusive, transferrable, spatially and temporally unrestricted right to use the work results on the website we have created for copyrightable work results that we provide under this contract. The customer is only granted the right to use the website as a whole or parts of the website on the Internet. The customer is not entitled to use individual design elements of the website or the entire website in any other form - especially in printed form. The customer may further develop or otherwise edit the website and the software that makes up the website, but only for his own purposes. In particular, the customer is not entitled to make any edits that serve the partial or complete use of the website by third parties as their own website.

7.2 Unless otherwise agreed, we are only obliged to provide the customer with the work results free of industrial property rights and copyrights of third parties in Germany ("property rights").

7.3 All rights to models, methods, ideas, know-how and rights of use that we use to provide the contractual services remain with us.

7.4 References to the Contractor's authorship will be included in suitable places on the website. The customer is not entitled to remove or change these notices without the written consent of us.

7.5 As soon as the customer has paid the fee in full, we will make the source code available to the customer in full, provided that it is a development to order and there are no other license or business conditions to the contrary.


8. Customer's Rights Mängeln

If we provide services under a work contract, the customer has the following rights and obligations in the event of material defects and defects of title:


8.1 Claims by the customer due to a defect require the immediate notification of the defect after discovery.

8.2 A notice of defects should contain as detailed a description of the defect as possible. If possible and reasonable, the customer will provide us with the documents and information that we need to assess and eliminate the defect upon request.

8.3 The customer gives us the opportunity to check complaints. If the notice of defects turns out to be unfounded, the customer is obliged to reimburse us for the expenses incurred for the inspection.

8.4 In the event of defects, we will either remedy the defect or deliver a new one (subsequent performance) at our discretion. In the event of failure, unreasonableness or refusal of supplementary performance, the customer can reduce the price, withdraw from the contract or demand damages in accordance with § 9 "Liability". Claims for material defects do not exist if the deviation from the agreed quality is only insignificant.

8.5 Claims due to a defect expire six months after delivery of the website/software or the relevant part of the website/software, unless we have caused the defect through intentional or fraudulent behavior or have assumed a guarantee ("defect liability period"). ).


9. Liability

9.1 The liability of the contractor for slightly negligent breach of non-essential contractual obligations is excluded. In the event of a slightly negligent breach of essential contractual obligations - also by legal representatives and vicarious agents, liability is limited to the foreseeable damage typical of the contract, but no more than €5,000.00 per claim. However, we have unlimited liability for damage to life, limb and health of the customer culpably caused by us, our legal representatives, vicarious agents or vicarious agents, as well as for intent and gross negligence and the lack of guaranteed properties.

9.2 However, we are not liable for financial, indirect or consequential damage such as lost profit, missed savings, loss of production, lost use.

9.3 Liability for data loss is limited to the typical recovery effort that would have occurred if data backups had been made regularly and in accordance with the risk.

9.4 Claims for damages by the customer other than those expressly mentioned in this contract or which go further than those expressly stated in this contract, for whatever legal reason, are excluded.

9.5 Claims for damages by the customer become time-barred - with the exception of claims due to defects - one year after the claim arose, but no later than one year after the end of the contract; unless the claims are based on intentional or fraudulent behavior attributable to us.

9.6 Liability under the Product Liability Act remains unaffected.

9.7 Our liability is in any case limited to the facts and amounts of damage covered by our liability insurance.



10.1 The customer shall inform us of any special data protection and confidentiality requirements. Business and trade secrets of the customer are treated confidentially in accordance with the statutory provisions.

10.2 We can include the customer's name in a reference list (also on our website) for marketing purposes and announce that we have a business relationship with him and that this contract has been concluded with the customer. In addition, we reserve the right to place a link from the customer's side to our site; all other advertising references require the prior consent of the customer.

10.3 The customer will treat all non-public information, in particular technical and commercial information, that he receives from us in connection with this contract as confidential and as his own business and trade secrets.

10.4 Point 10.2 also applies expressly to the creation of products or the provision of services for third parties on behalf of or on behalf of the customer.


11. Termination

11.1 We can terminate the contract for important reasons up to the completion of the project.
This includes, in particular, default in payment by the customer (e.g. in the case of partial payments), as well as the determination of a significant deterioration in the customer’s financial situation.

Point 3.7 of these terms and conditions applies accordingly.


12. Miscellaneous

12.1 Should individual provisions of this contract be wholly or partially invalid, the remainder of the contract remains valid. The parties undertake to replace ineffective provisions with effective ones in such a way that the economic purpose pursued with the contract is achieved as far as possible. This applies accordingly in the case of a loophole that the parties do not want or in the case of unfulfillable provisions.

12.2 German law applies; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

12.3 Place of jurisdiction is Altötting. However, we are also entitled to sue at the customer's registered office.