WavySys B2B SaaS Terms and Conditions
Last updated: 15. January 2020
“Customer” refers to the entity that has ordered Software as a Service from Wavy GmbH, Alt-Moabit 90, 10559 Berlin, Germany (“WavySys”) or an authorized distribution partner of WavySys by ordering online or by executing the Ordering Document that accompanies and incorporates this WavySys software as a service agreement, as applicable (collectively, the “Agreement”).
“Software as a Service” refers to the services rendered by WavySys to Customer based on the use of the WavySys Application Programs such as WavySys CRM, Booking Button and Booking System by the Customer`s access to such programs via the internet or a cloud infrastructure. The scope and functionalities of such services comprise contract management, invoicing/billing and integration into payment services providers as in more detail set forth on WavySys`s website https://www.wavysys.com. Such services shall also include any required technical support services as set forth in §§ 2 and 3 below rendered to the Customer (“Support”), as well as any other services provided by WavySys as defined in the Ordering Document (collectively, the “Services”). For the avoidance of doubt, the Services shall not include any professional services (training, consulting and the like) unless expressly referred to in an Ordering Document or a separate agreement.
The term “Program Documentation” refers to documentation in written form, video tutorials for Users as well as any other materials provided by WavySys as part of the Services provisioning.
The term “WavySys Application Programs” refers to the software products owned or distributed by WavySys to which Customer is granted access to via the internet, including Program Documentation, all in their most recent version.
The term “Users” shall mean those individuals authorized by Customer or by any WavySys distribution partners to use the Services.
The term “Data” where related to Customer refers to the data provided by Customer that reside in Customer`s services environment.
The term “Ordering Document” refers to the ordering document signed by the parties.
2 Scope of Services, Timely Performance
- This Agreement is valid both for the attached Ordering Document and any orders placed online. The scope of the Services shall be limited to those set forth in this Agreement.
- In case the WavySys Application Programs are accessed via an on-premises data center of Customer or in case Customer wishes to integrate the WavySys Application Programs as an OEM into other software products or IT solutions, additional provisions will need to be agreed in good faith in the Ordering Document or in a separate agreement.
- Customer shall be obliged to and shall have the responsibility to provide and maintain any suitable hardware and software and access to the internet necessary or desirable to use and have access to the WavySys Application Programs and the Services in accordance with the provisions of this Agreement. In general, any front-end mobile or customized applications, the admin UI and any self-services centers beyond the WavySys API shall be the responsibility of Customer. Where any third party software tools (connectors, adapters or interfaces) are used, WavySys`s scope shall not include any third party tools, even if such tools are referred to as “WavySys certified and supported” in the Ordering Document. Furthermore, where any other software or hardware needs to be provided by any third parties such as system integrators or other IT companies and any such software, hardware or services are not provided correctly in time, scope or otherwise, WavySys shall also be relieved from any obligations hereunder.
- WavySys`s Support shall consist of the following services:
- First and second line Support as defined in § 3 below;
- Updates, fixes, security alerts and critical patch updates;
- General maintenance releases, releases relating to specific functionalities, updates to the Program Documentation;
- Assistance with service requests during usual business hours on working days but not on Saturdays, Sunday and on public holidays;
- Grant of online access to https://support.WavySys.com allowing Customer to log service requests or Support requests online;
- General customer service (non-technical issues only) during normal business hours.
- WavySys shall use reasonable commercial efforts to generally respond to any Support requests within one business day, unless set forth otherwise in the Ordering Document. WavySys shall only be liable for any delay if any binding dates are expressly agreed and marked as such in the Ordering Document.
- WavySys reserves the right to amend or change the terms of Support as set forth herein from time to time by observing four weeks prior notice. Such changes or amendments may not have a material negative effect on the Support level, as long as Customer pays any subscription fees or any other agreed remuneration on time.
3 Support Terms
- SaaS Fees: The subscription fees agreed in the Ordering Document include the fees for Support hereunder. Customer will not be separately invoiced for Support hereunder.
- 2. Technical Contacts: Users as the technical contacts are the sole liaisons between Customer and WavySys for Support relating to the WavySys Application Programs. The technical contacts must have, at a minimum, initial basic WavySys Application program product training and, as needed, supplemental training appropriate for a specific role or implementation phase, or in relation to specific functionalities and/or a migration in relation to the WavySys Application Programs, as the case may be, all so as to be knowledgeable enough about the WavySys Application Programs and the interfaces to Customer`s IT environment and in order to help resolve system issues and to assist WavySys in analyzing and resolving Support requests and to itself prioritize Support requests. When submitting a Support request, Customer`s technical contact should have a baseline understanding of the problem being encountered and an ability to reproduce the problem. To avoid interruptions in Support services, Customer must notify WavySys whenever technical contact responsibilities are transferred to another individual.
- WavySys may review Support requests logged by Customer`s technical contacts, and may recommend specific training to help avoid future Support requests or their causes. The terms of such training shall be agreed separately in a professional services agreement.
- 4. Updates of the WavySys Application Programs: “Update” means a subsequent scheduled release of the WavySys Application Programs which WavySys generally makes available to its customers of the Software-as-a-Service at no additional fee. Updates of the WavySys Application Programs do not include any release, option, services or program that WavySys only and exclusively makes available under a separate license. As part of Support, WavySys will provide updates to the WavySys Application Programs during the term of this Agreement when available (as determined by WavySys). WavySys is under no obligation to develop or make available any future services, programs or functionalities relating to the WavySys Application Programs. If an update of a WavySys Application Program is made available to Customer pursuant to these terms of Support, it shall replace the previous version of such terms of Support.
- First and Second Line Support: WavySys usually renders both “First Line Support” and “Second Line Support” for the WavySys Application Programs directly to the Users entitled to such Support.
- First Line Support shall include but not be limited to the following Services: A direct response to Users with respect to enquiries concerning the performance, functionality or operation of the WavySys Application Programs, a direct response to Users with respect to problems or issues with the WavySys Application Programs, a diagnosis, evaluation and/or resolution of problems or issues with the WavySys Application Programs.
- If after reasonable commercial efforts a diagnosis or resolution of problems or issues of the WavySys Application Programs cannot be effected, the User may contact WavySys for “Second Line Support.” Such Second Line Support shall consist of the following Services: A diagnosis and evaluation of issues with the WavySys Application Programs and reasonable commercial efforts to resolve reported and verifiable errors in the WavySys Application Programs so that the WavySys Application Programs functionalities are fulfilled in all material respects as described in the associated Program Documentation.
- WavySys will review Support requests logged by Customer`s technical contacts, and may recommend specific organizational and process changes. In order to determine the scope and response time for the Second Line Support hereunder, any errors shall be categorized as below. The Support requests shall include error reports to WavySys allocating each error to one of the below error categories. Each error report should relate to one particular error only to be remedied by one specific Support request (ticket). WavySys reserves the right to change the error category after consultation with Customer should the allocation to a specific error category seem unsuitable.
- Error category 1: Software-as-a-Service as a whole unusable due to errors in the WavySys Application Programs (“Blocker”).
- Error category 2: The use of Software-as-a-Service is strongly impaired due to errors in the WavySys Application Programs (“Critical”); core functionalities of the supported software are not usable; the consequences can have a serious impact on the Customer’s business.
- Error category 3: The use of Software-as-a-Service is impaired due to errors in the WavySys Application Programs (“Major”); major errors impair the use of the supported software; the Customer’s business may be impaired by it.
- Error category 4: The use of Software-as-a-Service is slightly impaired due to errors in the WavySys Application Programs (“Minor”); less important parts of the Services are affected by the problem or a solution is available for avoiding major consequences. A minor impairment of the Customer’s business is possible.
- WavySys will allocate its resources and response times in line with the above error categories and prioritize its activities accordingly.
- If Customer is of the opinion that Customer has not received quality or timely assistance in response to a Support request critical to Customers`s business or in case Customer urgently needs to communicate important Support related business issues to WavySys, Customer` technical contact may escalate the Support request by contacting WavySys and requesting that the Support request be escalated. For Support requests so escalated, the WavySys support team member will engage the WavySys Support request escalation manager who will work with Customer to develop an action plan and allocate the appropriate WavySys resources. If the issue underlying the Support request remains unresolved, you may contact the WavySys service request escalation manager to review the service request and request that it be escalated to the next management level within WavySys as required. To facilitate the resolution of an escalated Support request, Customer is required to provide contacts within its organization that are at the same level as that within WavySys to which the Support request has been escalated.
4 Rights Granted, Restrictions
- Upon WavySys’s acceptance of Customer`s order and for the term of the Services, WavySys grants to Customer the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for Customer`s own business operations and subject to the terms of the Agreement.
- Customer may allow its Users to use the Services for this purpose and Customer shall ascertain that its Users comply with the license restrictions of this Agreement.
- WavySys has no delivery obligation of and will not ship any physical copies of the WavySys Application Programs to Customer as part of the Services. Customer acknowledges that the Services and the WavySys Application Programs are only accessible via the internet or on Customer`s premises, as applicable. Customer agrees that it does not acquire under this Agreement any license to the WavySys Application Programs themselves and that these WavySys Application Programs will only be used as part of the Services.
- Upon termination of the Agreement or the Services thereunder, Customer`s right to access or use the WavySys Application Programs specified in the Ordering Document and Customer`s right to use the Services shall terminate.
- The Program Documentation or the Ordering Document may specify third party hardware or software that may be helpful or necessary for the use of certain WavySys Application Programs. WavySys hereby points out that Customer`s right to use such third party technology is exclusively governed by the terms of the third party license agreement with su8ch third party licensor and not by this Agreement.
- Customer may not:
- remove or modify any program markings or any notice of WavySys’s Services or of WavySys`s or its licensors’ proprietary rights;
- make the Services available in any manner to any third party for use in the third party’s business operations (unless expressly permitted for the specific license of Customer);
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer or translate any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials);
- disclose results of any Services or program benchmark tests relating to the WavySys Application Programs to any third parties; and
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, or the WavySys Application Programs available, to any third party other than as expressly permitted under the terms of the Agreement.
- The rights granted to Customer under this Agreement are also conditioned on the following:
- the rights of any User authorized to use the Services (e.g., on a “named User” basis) cannot be shared or used by more than one individual (unless such authorization is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the Services);
- except as expressly provided herein, the Services may neither in whole nor in part be copied, reproduced, distributed, republished, downloaded, displayed, posted or transferred in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
- Customer undertakes to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
- In case WavySys renders any customized programming or software development services to Customer, any intellectual property rights (including copyrights and patent rights) and title thereto shall be vested in WavySys. This shall expressly comprise and include all intellectual property rights (including copyrights and patent rights) and title to all source code and object code relating to any software so developed and shall further include any algorithms, analyses, diagrams, tests, reports and documentation relating thereto. WavySys grants to Customer a royalty free worldwide perpetual non-exclusive and non-transferable license to commercially use any such developments within Customer`s group of companies.
5 Warranties and Disclaimers
- WavySys warrants – subject to Customer`s compliance with its obligations under §§ 2 and 4 above – that the Services will be rendered in accordance with good engineering practice and in line with the standard of care and quality in place at professional IT and software companies.
- If the Services provided to Customer for any given month during the Services term were not performed as warranted, Customer must provide written notice to WavySys no later than five business days after the last day of that particular month or within such other period stated in the Ordering Document. All claims not made in writing and received by WavySys within the time period specified above shall be deemed waived and be forfeited.
- In the event of a breach of the foregoing warranty WavySys´s sole obligation shall be to re-perform the defective Services and to correct any existing non – conformity. The warranty period shall be twelve months from the rendering of any Services and any warranty claims shall expire and shall be statute – barred thereafter.
- Subject to Customer`s compliance with §§ 2 and 4 above and para. 2 above, the above Services warranty shall also apply in case of any defects of any WavySys Application Programs in case such WavySys Application Programs do not perform in all material respects in accordance with the Program Documentation. Due to the nature of the Software-as-a-Service business model the warranty for the WavySys Application Programs shall be included in and be considered part of the warranty for Services and there shall not be any warranty as to any defects or deficiencies of the WavySys Application Programs used by Customer hereunder unless this materially and adversely affects the availability of the Services as in more detail specified in para 5 below.
- The Services shall in general be available and operational (“Availability”). The Availability of the Services shall be 99.5 % (calculated on a monthly basis for any given month). In general, times during which any updates, upgrades or new releases to the WavySys Application Programs are installed or implemented, shall also be considered as times of Availability, provided that WavySys has informed Customer reasonably in advance. Furthermore, times during which errors of categories 3 and 4 as defined in § 3 above exist shall also be considered times of Availability. Furthermore, where Customer is not in compliance with any supplies or services necessary for WavySys or any third party data processing center contracted by WavySys to render the Services shall also not be considered times of non-Availability. Periods of time during which maintenance works are performed to ascertain the operation of the WavySys Application Programs and the Services – either at WavySys itself or at any subcontractors of or service providers of WavySys – shall be deemed as times of Availability. Services Periods of time during which events of Force Majeure as defined in § 15 prevail, shall also be deemed times of Availability.
- If the Availability of the Services is not met for a specific month, Customer will be entitled to an adequate reduction of the subscription fees during times of non-Availability. Further claims of Customer for any damage or loss shall be excluded.
- 7. Such warranties do further not apply to any defective Services resulting from misuse, casualty loss, use or combination of the Services or the WavySys Application Programs with any products, hardware or services furnished by any third party, any modification of the WavySys Application Programs not made by or for WavySys, or any use of the WavySys Application Programs by Customer in contradiction to the terms of this Agreement, in particular § 4 above or in case of non-compliance with Customer`s obligations set forth under § 2 above.
6 Use of Services for Trial and Evaluation Purposes
WavySys agrees that Customer may use and have online access to certain Services for evaluation and nonproduction purposes only, subject to the terms and conditions of this Agreement. Such Services for trial and evaluation purposes are provided “as is”, shall be rendered entirely at Customer`s own risk and WavySys does neither give any warranties for such Services nor shall WavySys render any Support relating to such Services. The trial and evaluation purposes use of the Services shall be limited to a period of thirty days.
- If a third party brings a claim against either Customer or WavySys stating that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or WavySys to the other party and used by the other party, infringes such third party claimant`s intellectual property rights, the party providing such Material, at its sole cost and expense, will defend the party that has received the Material against the claim and indemnify such party from any resulting damages, liabilities, costs and expenses, if the party that has received the Material:
- notifies the party that provided the Material promptly in writing about the claim, in no case later than 15 days after receipt of the claim; and
- gives the party that provided the Material sole control of the defense and any settlement negotiations and provides it with the information, authority (power of attorney), and assistance the other party needs to defend against or settle the claim at its discretion.
- The indemnifying party shall use all commercially reasonable resources to inform, authorize and support the other party in the defense, settlement and negotiation of the third party claims.
- WavySys is under no obligation to indemnify Customer to the extent that a third party infringement claim is based upon the combination of any Material with any products or services provided by third parties. WavySys furthermore is under no obligation to indemnify Customer for infringement caused by Customer`s actions against any third party if the Services as delivered and used in accordance with the terms of the Agreement would not otherwise have infringed upon any third party intellectual property rights.
8 Terms of Agreement
- Services provided under this Software-as-a-Service agreement shall be provided for the period defined in the Ordering Document unless earlier terminated in accordance with the Agreement. At the end of the Services term, all rights to access or use the Services, including the WavySys Application Programs listed in the Ordering Document, shall end. Unless otherwise stated in the Ordering Document the Agreement can be terminated by each party by giving one month´s notice and the Services term shall renew for periods of one month each in case the Agreement is not terminated by either party.
- If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Ordering Document under which the breach occurred for cause. If WavySys terminates the Ordering Document as specified in the preceding sentence, Customer must pay within 30 days all amounts which have accrued prior to such effectiveness of termination, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. Customer agrees that if Customer is in default under the Agreement, Customer may not use the Services ordered.
- In addition, WavySys may immediately suspend Customer`s registration, keys, password, account, and access to or use of the Services if Customer fails to pay WavySys as required under the Agreement and does not effect the payments within ten days following notice to do so, or if Customer breaches any obligation pursuant to §§ 2, 4, 7, 13 or 17 of this Agreement. WavySys may terminate the Services hereunder if any of the foregoing is not cured within 30 days after WavySys’s initial notice thereof. Any suspension by WavySys of the Services under this paragraph shall not release Customer from its obligations to make payments as set forth in this Agreement.
- Upon Customer`s request, and for a period of up to 60 days after the termination of the applicable Ordering Document, WavySys may permit Customer to access the Services solely to the extent necessary to retrieve a file of Customer`s Data in the Services environment. Customer agrees and acknowledges that WavySys has no obligation to retain Customer`s Data and that such Data may be irretrievably deleted thereafter.
- Provisions that survive termination or expiration of this Agreement are §§ 5, 7, 10, 11, 12 and 14.
9 Fees and Taxes
Customer agrees to pay for the Services ordered as set forth in the Ordering Document; all fees due are non-cancelable and the sums paid are nonrefundable. Customer agrees to pay any sales, value-added or other similar taxes, duties and levies imposed by applicable law that WavySys must pay on the Services, except for taxes based on WavySys’s income. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice in their full amount without any deductions.
- 1. By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). The parties each agree to keep any Confidential Information and in particular the contents of this Agreement and all information disclosed to each other in connection with the Services confidential and not to disclose them to any third parties except where required for the performance of obligations under this Agreement.
- A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
- We each agree to hold each other’s Confidential Information in confidence and not to disclose them to any third parties for a period of five years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Nothing shall prevent either party from disclosing any Confidential Information in any legal proceeding arising from or in connection with the Agreement or to a governmental entity as required by law.
- If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and in full force and such term shall be replaced with a term consistent with and coming as close as possible to the purpose and intent of the Agreement.
- Any general terms and conditions used by Customer shall not apply. It is expressly agreed that the terms of the Agreement, including any WavySys Ordering Document, shall supersede the terms of any purchase order or other non-WavySys document used by Customer and no terms other than those set forth in this Agreement shall apply to the Services ordered.
- Any changes to or amendments of the Agreement shall only be valid when made in writing. This shall also apply to a waiver regarding the written form requirement.
12 Limitation of Liability
- WavySys`s liability for damage or loss shall be limited to such damage or loss reasonably foreseeable.
- This limitation shall not in apply in cases of gross negligence or willful misconduct and shall not apply in cases of any liability pursuant to mandatory law.
- Customer shall have no rights and remedies other than those expressly set forth in this Agreement.
13 Export Control
Export control laws and regulations of Germany and the EU and any other relevant local export laws and regulations apply to the Services. Customer agrees that such export control laws govern access to and the use of the Services. Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from the Services will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
14 Other Provisions
- WavySys is an independent contractor and it is agreed that no partnership, joint venture, or agency relationship exists between WavySys and the Customer. Each party will be responsible for paying its own employees, including employment related taxes, social security, benefits and insurance.
- Customer shall obtain at its sole expense any rights and consents from third parties necessary for WavySys and its subcontractors to perform the Services under this Agreement.
- The Agreement is governed by the substantive and procedural laws of Germany without regard to its rules on conflicts of laws and to the exclusion of CISG. It is agreed to submit to the exclusive jurisdiction of, and venue in, the competent courts in Frankfurt a.M. Germany in any dispute arising out of or relating to the Agreement.
- Customer may not assign the Agreement or give or transfer the Services or an interest in them to any third party, except upon prior written consent of WavySys.
- Except for actions for nonpayment or breach of WavySys’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one years after the cause of action has accrued and shall be statute-barred by such point in time.
- WavySys may audit your use of the Services. Customer agrees to cooperate with WavySys’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer`s normal business operations. Customer agree to pay within 30 days of written notification any fees applicable to the use of the Services in excess of Customer`s rights and license hereunder and in the Ordering Document. If the fees are not paid within such time, WavySys suspend the Services and/or in case the fees are not paid after a payment reminder upon a further 30 days` notice WavySys may terminate the Agreement for default. It is agreed that WavySys shall not be responsible for any of Customer`s internal or third party cost incurred in cooperating with the audit.
15 Force Majeure
Neither party shall be responsible for failure or delay of performance if caused by any Force Majeure events, such as but not limited to an act of war, hostility, or sabotage; hacks or cyberattacks; act of God; fire, flood, strikes or labor disputes, electrical, internet, or telecommunication outage or downtime beyond the reasonable control of the obligated party; government restrictions (including the denial or cancellation of any export or other license); or any other event outside the reasonable control of the obligated party. The parties will use reasonable efforts to mitigate the effect of a force majeure event. If such force majeure event continues for more than 30 days, each party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer`s obligation to pay for the Services.
16 Customers Data
- WavySys reserves the right to provide the Services from various locations, and/or through use of subcontractors and service providers, with nor geographical limitations to apply. Unless otherwise expressly agreed, all server locations for the WavySys Application Programs are located within the European Union.
- WavySys shall carry out data processing in the form of order data processing (Auftragsdatenverarbeitung) pursuant to Sec. 11 of the Federal Data Protection Act (BDSG). Customer undertakes to obtain any third party consents related to its use of the Services and WavySys’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer`s Data.
17 Restrictions of Use
- Customer agrees not to use or permit use of the Services for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, vulgar, offensive, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm or discriminate against certain people, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of third party intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations.
- WavySys reserves the right to remove or disable access to any material that violates the foregoing restrictions when becoming aware of any such violations. In this case, WavySys shall have no liability whatsoever towards Customer in the event that WavySys takes such action. Customer agrees to defend and indemnify WavySys against any claim arising out of a violation of Customer`s obligations under this § 17.
- WavySys may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve any WavySys Support requests. The Tools will not collect, report or store any of the Data residing in the service production environment, except as necessary to troubleshoot Support requests or other problems in the Services.
- Data collected by the Tools (excluding production data of Customer) may also be used to assist in managing WavySys’s product and service portfolio and for license management. Customer agrees that (a) Customer may not access or use the Tools, and (b) Customer will not use or restore the Tools from any tape backup following termination of the Agreement.
19 Statistical Informations
WavySys may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Customer`s Data and/or identify Customer`s confidential information or include Customer`s company name. WavySys retains all intellectual property rights in such information.
20 Third Party Web Sites, Content, Products and Services
The Services may enable Customer to add links to web sites and may provide Customer access to content, products and services of third parties (including users, advertisers, affiliates and sponsors of such third parties). WavySys does not assume any responsibility for any third party websites or third party content provided on or through the Services and Customer bears the full responsibility and all risks associated with the access and use of such web sites and third party content, products and services.
21 Named as client references
The client agrees, that WavySys is allowed to name the customer as reference of billwer-services and uses the customers logo in press releases, sales and marketing documents and presentations. For marketing purposes WavySys creates a short customer profile of the client, which is published on WavySys.com.
Web Design Terms & Conditions
Last updated: 15. January 2020
1 Contractual object
- The object of this contract is the development of a concept and the creation of a website by the contractor for the client, with which he can appear on the Internet.“Contractor” is the Wavy GmbH and “Client” is the client who will receive with acceptance of offer the service by the contractor.
- The Customer shall itself take care of the placement of the Website on the Internet, the permanent storage of the Website on a server (hosting), the procurement of an Internet domain and the provision of access to the World Wide Web (access providing).
2 Contractor’s performance obligations: specifications, development, Production and search engine optimization
- The contractor is obliged to develop a concept for a website according to the client’s specifications and to produce it according to the functionalities required by the client. The consultant shall perform the services due under the Terms & Conditions in four phases in accordance with the following paragraphs 2 to 5:
The contractor will first prepare a specification sheet for the website. The specifications are based on the client’s specifications regarding the scope, functionality and structure of the website. The Contractor shall support the Client in an appropriate manner in the development and concretisation of the Client’s specifications. The requirements specification shall specify the requirements for the graphic design of the website as well as the requirements applicable to the software programming to an appropriate extent and shall make initial specifications for linking the website to social networks (in particular Facebook and Twitter) as well as for the use of a Content Management System (CMS).
- Concept phase:
- On the basis of the specifications, the contractor first develops a concept for the structure of the website. This structure includes a directory of the hierarchical structure of the individual pages (structure tree), the definition of a possible frame concept, the placement of hyperlinks and the integration of e-mail windows. In addition, a concept is required for linking the website to social networks, and for the use and placement of advertising banners, animations, sound files, video files, as well as photos, logos and other graphics. The concept also includes – if desired – the integration of a Content Management System (CMS) by WordPress.
- When developing the concept, the contractor shall take into account the integration of the following elements:
up to Pages,
up to Image files (photos, graphics and logos),
up to sound files
up to video files
up to interactive elements (shopping function, games, etc.),
up to Animations,
Integration of an e-mail input window
the following design elements (buttons, mail links etc.)
- Design phase:
- After completion of the concept and its approval by the client, the contractor creates a basic version of the website based on the approved concept. The basic version must show the structure of the website, contain the essential design features and provide the necessary basic functionalities. The necessary basic functionalities include in particular the functionality of links connecting the individual websites, the implementation of a frame concept, the possible integration of a content management system (CMS) and the integration of graphics, e-mail windows, advertising banners, animations, sound files and video files as well as links to social networks. Concrete content can be indicated with dummy text and placeholders. The basic version of the website must continue to function properly to the extent that the client is able to check the website, in particular to carry out test runs.
- The contractor is obliged to optimize the programmed websites as follows:
- aa) Browser by WordPress / Elementor.
- bb) mobile devices through WordPress / Elementor
When using the browser version for which they have been optimised, the pages created must be error-free and accessible without impairing the appearance of the page. Hyperlinks that refer to subpages within the created website must function correctly. For other hyperlinks, a functional check must be carried out at the time of their creation. Required browser plugins must either be included by default in the browser version for which the page has been optimized or be made downloadable by clicking no more than two further links.
- Completion phase:
- After completion of the basic version and its release by the customer, the contractor creates the final version of the website. This must be fully functional.
- After acceptance of the final version of the website by the Client, the Contractor shall be obliged to make the website accessible to the Client through WordPress / Elementor.
3 Performance obligations of the client: cooperation obligations, contents, acceptance
- At the time of the conclusion of the Terms & Conditions, the customer is obliged to provide the contractor with access to the data and programs required for the creation of the website.
- The Principal shall be obliged to cooperate appropriately throughout the development of the concept for the Website and its production by the Contractor. In particular, reasonable cooperation includes the provision of all data and information necessary for the development of the concept and production of the website. The Client shall also be obliged to provide the Contractor with access to WordPress / Elementor.
- The Customer shall support the Contractor in the preparation of the specifications (§ 2 para. 2 of this Agreement) and the concept (§ 2 para. 3 of this Agreement) in order to enable the Contractor to create a detailed concept.
- After the contractor has created the concept for the website (§ 2 para. 3 of these Terms & Conditions), the client is obliged to check it carefully and conscientiously. If the concept essentially corresponds to the requirements of § 2 Para. 2 of these Terms & Conditions, the client is obliged to release the concept by declaration in text form (§ 126 b BGB).
- After the creation of a basic version (§ 2 para. 4 of these Terms & Conditions) by the contractor, the client is obliged to check this carefully and conscientiously. As far as errors are recognizable, the client will inform the contractor of this. If the basic version essentially meets the requirements of § 2 para. 4 of these Terms & Conditions, the customer is obliged to release the basic version by declaration in text form (§ 126 b BGB).
- After completion of the final version (§ 2 paragraph 5 of these Terms & Conditions), the client is obliged to accept the website, provided that the website is essentially functional and free of defects. The acceptance shall be declared in text form (§ 126 b BGB).
- At the latest after release of the basic version, the Customer shall provide the Contractor with all content required for the development and creation of the website in the following form:
- Images, graphics (incl. logos, buttons if applicable):
- Information for interactive functions:
The client is solely responsible for the procurement and acquisition of rights to these contents.
- Furthermore, the Customer shall provide the Contractor with the following information in the following form immediately after release of the basic version at the latest:
- Guidelines and instructions for the design of the website: in writing or by e-mail;
- technical specifications (URL, host, mail forwarding, etc.): in writing or by e-mail;
4 Remuneration/ payment modalities
- Upon acceptance of the Terms & Conditions, a down payment of 30% of the net amount plus 19% value added tax is due. The client undertakes to pay the down payment immediately upon acceptance of the Terms & Conditions. The contractor will not start work until receipt of the complete down payment on the agreed company account of Wavy GmbH. Upon completion of the website, the Contractor shall invoice the Customer for the remaining remuneration due under the Terms & Conditions (final invoice). The final invoice is due for payment within five working days.
- The Customer undertakes to pay the Contractor a flat-rate fee of _________________plus 19% value-added tax. All services to be rendered by the contractor in accordance with § 2 of this Terms & Conditions shall be remunerated with it.
- For additional expenses that go beyond the services owed by the contractor in accordance with § 2 of this contract, the parties agree on an hourly remuneration of 40 euros plus German VAT. 19%.
- Irrespective of the lump-sum payment pursuant to paragraph 1, the Principal shall be obliged to reimburse the Contractor for any additional expenditure incurred by the Contractor at an hourly rate of 80 euros plus 19% value added tax resulting from the Principal’s failure to fulfil its obligations pursuant to § 3 of this Agreement.
- The following supplementary agreements shall be made:
In any case, expenses incurred by the Contractor because the Customer has made changes at the request of the Customer after approval of the concept, after approval of the basic version or after partial acceptance, which relate to services that have already been approved or accepted, shall be deemed to be additional expenses subject to remuneration.
Such additional expenses are reimbursed at an hourly rate of 40 euros plus 19% VAT.
The Customer shall reimburse the Contractor for the following expenses separately:
- The Contractor shall be entitled to invoice the Customer for advance payments at reasonable intervals. The amount of the instalment payments shall depend on the services already rendered by the Contractor. The partial invoices are due for payment within five working days.
5 Source code, further development, right of use, name and labelling rights
- The Contractor shall make the source code available to the Client in its entirety through access to WordPress, the database and plug-ins and shall grant the Client all rights of use to the contractual website for all known and unknown types of use exclusively, irrevocably and in full without any restrictions in terms of content, space or time. In particular, the granting of rights is not limited to uses on the Internet, but also includes exploitation in other ways, e.g. in radio and television, on CD-ROM, in print versions and in all other possible ways.
- The handing over of the source code and the granting of the rights of use according to § 158 para. 1 BGB (German Civil Code) shall only become effective when the customer has paid in full the remuneration owed according to § 4 of this Terms & Conditions including previous expenses.
- The client is entitled to edit, subsequently change, supplement, expand, exchange or delete the contractual website in whole or in part, to redesign, disassemble, reassemble or translate it into other languages himself or through other third parties. The contractor will not claim any protection against distortion with regard to the website or individual web pages, unless there is a gross violation of its author’s personal interests. In case of doubt, the contractor can demand that he is not or no longer named in connection with the changed website.
- All name, title and trademark rights arising from the website or individual parts thereof or through use on the website are the property of the client.
- The contractor shall be liable for defects with regard to the functionality of the website in accordance with the statutory provisions of the law governing contracts of sale (§§ 434 ff BGB). Furthermore, the contractor shall also be liable for ensuring that the website created complies with the contractual specifications and the concept (or basic version) in the form approved by the client.
- The Customer shall inspect the website immediately after delivery or making it accessible on the Internet by the Contractor, insofar as this is feasible in the ordinary course of business, and, if a defect becomes apparent, shall notify the Contractor immediately.
- If the client fails to report the defect, the website shall be deemed to have been approved, unless the defect was not identifiable during the investigation.
- The Contractor shall be liable for the careful and professional performance of his contractual services and their freedom from defects.
- Der Auftragnehmer haftet für Vorsatz und grobe Fahrlässigkeit. Für leichte Fahrlässigkeit haftet der Auftragnehmer nur bei Verletzung einer wesentlichen Vertragspflicht, deren Erfüllung die ordnungsgemäße Durchführung des Vertrags überhaupt erst ermöglicht und auf the observance of which the contractual partner may regularly trust and in the case of damage resulting from injury to life, limb or health of persons in accordance with the Product Liability Act.
- The above provisions shall also apply in favour of the Contractor’s vicarious agents.
- The contractor guarantees that the contents created or procured by himself as well as the design and the ideas for the conception of the entire website brought in by him do not interfere illegally with the rights of third parties. He hereby exempts the client from any claims in this connection and reimburses him for the reasonable costs of legal defence.
- The client guarantees that the contents and information made available by him do not infringe the rights of third parties in an unlawful manner. He hereby indemnifies the contractor against any claims in this connection and reimburses him for the reasonable costs of legal defence.
8 Confidentiality / data protection
- The Contractor undertakes not to use or disclose to third parties any business and trade secrets and confidential information of the Client and its clients which have come to its knowledge during its work for the Client without the prior consent of the Client. The same applies to the documents and knowledge provided to him.
- In addition, the contracting parties agree to maintain confidentiality regarding the content of this Terms & Conditions and the knowledge gained during its execution.
- Die Geheimhaltungsverpflichtung gilt auch über die Beendigung of the contractual relationship.
- Für jeden Fall der Zuwiderhandlung gegen die Verpflichtung gemäß Abs. 1 und Abs. 2 zahlt der Auftragnehmer an den Auftraggeber eine Vertragsstrafe in Höhe von . Bei fortdauernden Verstößen wird forfeits the contractual penalty for each new month.
9 Milestones/contractual penalty
- The parties agree on the following binding completion dates (milestones). The milestones are fixed with the Client at the strategy meeting after the prepayment.
- Completion of the requirements specification (§ 2 Para. 2 of this Terms & Conditions)
- Completion of the Concept (Section 2 (3) of this Terms & Conditions);
- Completion of the basic version (§ 2 para. 4 of this Terms & Conditions)
- Completion of the final version (§ 2 para. 5 of this Terms & Conditions),
- If the contractor does not comply with the above completion dates (default), he is obliged to pay the contractor an amount of EUR 150 (contractual penalty) for each commenced day of delay after a transitional period of five working days, this amount being increased to the actual damage caused by default , if the client can prove that the damage was actually higher. An obligation to pay contractual penalty and / or damages does not exist as the delay is not the responsibility of the contractor.
- If, during the processing phase, the Client prevents the Contractor from accessing data, CMS and other data required by the Contractor for the completion of the website, in particular after completion of the final version, the Contractor’s service shall be deemed to have been completed and the complete outstanding invoice amount plus VAT shall be due immediately.
- This contract can only be terminated for good cause (§ 314 para. 1 BGB). The termination is to be declared in text form (§ 126 b BGB). An important reason shall be deemed to exist in particular if
- the contractor has one of the completion dates according to § 9 Abs.
1 of this contract and a reasonable grace period set by the customer has elapsed fruitlessly, unless the contractor is not responsible for the delay;
- the contractor violates other obligations arising from this contract in a gross manner;
- the customer grossly violates his obligations under this contract – in particular his obligations to cooperate as described in § 3 of this contract;
- insolvency proceedings have been instituted against the assets of a contracting party or the institution of such proceedings has been refused due to the lack of an insolvency estate corresponding to the costs of the proceedings.
- In the event of termination of the contract without notice by the client for good cause, the client is entitled to have the website further developed by third parties at the expense of the contractor. For this purpose, the contractor is obliged to immediately hand over the version of the website created up to that point to the client.
- In the event of effective termination of this contract by the client, all rights of use to websites already created and ownership of all embodiments thereof shall pass to the client against payment in the amount of the value of the services already rendered.
11 References, recognition of authorship
- The contractor may name the client as reference client on his website or in other media. Furthermore, the Contractor may publicly reproduce or refer to the services rendered for demonstration purposes, unless the Customer can assert a conflicting justified interest.
- The Contractor shall be entitled to have his name mentioned as the author in the form of a note on any website created by him. He may affix this copyright notice himself and the client is not entitled to remove it without the consent of the web designer.
12 Special arrangements
The Client shall have the choice of either acquiring WordPress Pro itself or acquiring it through the Contractor from the time the Terms & Conditions is concluded. If the contractor chooses, the invoice will be issued annually on 02.01.2019 in the amount of 20 Euro per website plus 19% VAT.
13 Final provisions
- All amendments or supplements to this Terms & Conditions or other contractual agreements must be made in writing in order to be effective.
- Should the Terms & Conditions contain ineffective regulations, the effectiveness of the rest of the remains unaffected. The parties are obliged to replace the invalid provision with a valid one that comes as close as possible to the purpose of the Terms & Conditions, taking into account the economic interests of both parties. The same procedure should be followed in the event of a gap in the provisions of the contract which needs to be filled.
- The present Terms & Conditions shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- The place of jurisdiction for all disputes arising from or in connection with this Terms & Conditions shall be Berlin, Germany.
Website Analytics Terms & Conditions
1 Subject matter of the terms & conditions
- The two parties agreeing on these terms & conditions are the Wavy GmbH (“WavySys” or “Contractor”) and the client of this service (“Client”) who agreed of receiving the service from the Contractor.
- Subject of this terms & conditions is the maintenance of the website(s) specified in § 1 paragraph 3 according to the specifications of the client.
- The inclusion of the website in the World Wide Web, its storage on its own or an external server (host providing), the ongoing maintenance of the website as well as the procurement of an Internet domain and access to the Internet (access providing) are not the subject of this contract.
2 Duties of the Contractor
- Website(s) monitors as follows:
- Analysis Integration & Monthly Updates
- Monthly usage statistics
- Analytics Integration
- The contractor is obliged to monitor the website visits of the website(s) at reasonable intervals and to report visits and statistics.
- The contractor is obliged to handle the dial-in data in accordance with § 1 paragraph 6 of this contract carefully and to prevent an improper use of the dial-in data by third parties.
- Our prices quoted are net prices plus the legally applicable value-added tax.
- Depending on the choice of service, the following flat-rate fees apply per website:
- Analytics Integration & monthly reports for 20 Euro per month
If an hourly rate has been agreed, it will be charged in units of 0.25 hours (15 minutes) or part thereof.
- Our hourly rate of 40 EURO (subject to adjustment) shall be deemed agreed for additional expenses which exceed the services owed by the contractor in accordance with § 1 of this contract.
- Expenses and any expenses incurred shall be borne by the customer.
4 Terms of payment
- The Contractor shall invoice the Customer for the contractually owed remuneration on a monthly basis, at the end of each month. Each invoice is due for payment within five working days. Alternatively, longer billing periods can also be agreed.
- The money must be on the provider’s account by the 6th of the month at the latest, otherwise the provider is entitled to refuse performance until receipt of payment.
5 Warranty and liability
- The contractor shall be liable for defects in his services in accordance with the statutory provisions.
- The contractor is not responsible for the content provided by the client. In particular, the Contractor shall not be obliged to check the contents for possible violations of the law. Should third parties make claims against the provider due to possible violations of the law resulting from the contents of the website, the client undertakes to indemnify the contractor from any liability and to reimburse the costs arising from the possible violation of the law.
- In the event of slight negligence, the Contractor shall only be liable in the event of breach of material contractual obligations (cardinal obligations) as well as in the event of personal injury and in accordance with the Product Liability Act. Otherwise, the Contractor’s pre-contractual, contractual and non-contractual liability shall be limited to intent and gross negligence, whereby the limitation of liability shall also apply in the event of the fault of a vicarious agent of the Contractor.
- The warranty period is one year if the customer is an entrepreneur (§ 14 BGB). For customers who are consumers (§ 13 BGB), a warranty period of one year applies to claims for damages against the contractor and a warranty period of two years applies to all other warranty claims.
6 Term & termination
- This contract can only be terminated for good cause (§ 314 para. 1 BGB) in text form (§ 126 b BGB).
- An important reason for the termination of this contract exists for the provider in particular if
- the client sustainably violates his obligations according to § 3 of this contract;
- the customer leaves due invoices unpaid despite reminder and setting of a deadline.
- The contract is concluded for an indefinite period and can be terminated by both parties by declaration in text form (§ 126 b BGB) with a notice period of 1 month.
7 Special agreements
- Special agreements must be made in writing.
8 Final provisions
- The present contract is exclusively subject to German law.
- Should individual provisions of this contract be invalid or lose their validity due to a later circumstance, the validity of the remaining provisions of the contract shall remain unaffected. The ineffective contractual provisions shall be replaced by a provision which comes as close as possible to what the contracting parties would have wanted if they had considered the relevant point. The same applies to any loopholes in this contract.
+49 (0) 30 95 999 34 60
HRB 197835 B
SEO Terms & Conditions
Last updated: 15. January 2020
1. Subject matter of the terms & conditions
- Subject of the terms and conditions are services of the contractor in the field of search engine optimization (SEO) against payment. “Contractor” is the Wavy GmbH and “Client” is the client who will receive with acceptance of offer the service by the contractor.
- The aim is that the website of the client hereinafter referred to as (“website”) is listed at a higher position by the search engine user than is currently the case when certain relevant search terms agreed between the parties (hereinafter referred to as “keywords”) are entered in search engines. A certain search engine placement is not owed. If another search engine is not explicitly specified, the advice refers solely to Google.
- The Client is aware that SEO is an ongoing process and that it may take up to 12 months after the implementation of all changes proposed by the Contractor before the first changes become visible. The client is also aware that search engine placement depends on a number of factors that are subject to constant change and are not known in detail. Unforeseen changes in the placement – also a drastic deterioration or a complete removal from the index of the respective search engine – cannot be excluded.
2. Consulting for onpage measures
- In the context of the Onpage optimization the contractor will advise the client at his own discretion regarding the page structure and/or the content of the website, its titles, headings, meta data, picture descriptions etc. and give recommendations for changes. Depending on requirements, the contractor will also advise the client with regard to web analysis tools (e.g. Google Analytics), social media and other website related topics.
- Consultation shall take place at the discretion of the Contractor by e-mail, telephone or in discussions with the Client (workshops).
- Unless expressly agreed otherwise, the client is responsible for the implementation of the proposals, in particular for any possibly recommendable modification of the source text of the website.
- In the event of changes to an SEO-relevant parameter, a significant change to search engine algorithms, problems with the Google Webmaster Tool or a sudden deterioration in search engine placement, the contractor will advise the client within the term of the terms & conditions for further action at short notice, suggest possible remedies and provide the client with the best possible support during implementation.
3. Offpage services
- The contractor will check whether the quantity and/or quality of the links (backlinks) on the website can be improved and make appropriate recommendations (off-page optimisation).
- After consultation with the client, the contractor shall endeavour to increase the current number and/or quality of backlinks. A certain number or quality of backlinks is not owed. Insofar as the parties expressly agree to this, offpage optimization also includes the booking of links from third-party Internet pages for a fee. The fee shall be borne by the customer.
- Details of the agreed off-page optimisation, in particular with regard to the types of external links, fees for the purchase of links, etc., shall be determined by the parties by mutual agreement.
- Clause 2 (4) shall apply mutatis mutandis, if applicable.
4. Audit, reporting and communication
- The Contractor shall provide the Client with a monthly report (“Report”) from which the current ranking of the Website in the search engines covered by the terms & conditions and the number of backlinks can be derived.
- The contractor will examine SEO-relevant parameters (in particular listing on Google) for relevant changes as part of a daily automated check. If the contractor detects significant changes in the checked parameters, he will inform the client immediately, at the latest within one week, describing the change (“Alert”).
- If the client has provided the contractor with appropriate access data, the contractor will check the data in the Google Webmaster Tools once a month for any need for action and inform the client about this to a reasonable extent promptly.
- At the express request of the Customer, the Contractor shall discuss any need for action arising from a report or alert with the Customer in a monthly telephone call. The Contractor shall in each case offer the Client a date for this in good time.
- The contractor shall provide the client with access to a collaboration tool for communication between the parties (in particular the recording of tasks, comment functions, etc.). The parties agree to give priority to communication via this channel.
5. Optional benefits
- Insofar as the contractor assumes other service orders, such as the implementation of proposed onpage optimization measures, programming services or other additional adaptations, the creation of content, workshops, training or other consulting services, the contractor owes the action in the agreed period and scope. The details of the service to be provided by the Contractor shall be derived from the respective order.
- Unless expressly agreed otherwise, optional services are remunerated on the basis of the expenses incurred.
6. Remuneration and payment modalities
- The agreed services shall be invoiced on a time and material basis. Each package includes a fixed hour budget from the Contractor.
- The following packages shall apply to the services of the Contractor:
Search engine optimization, Keyword analysis for 3 keywords, Onpage optimization, Offpage optimization, Up to 3 content pages, Monthly blog posts, Cancellation 1 month before end of test
290 € per month OR 2900 € per year
Search engine optimization, Keyword analysis for 6 keywords, Reporting every two weeks, Strategic planning every 3 months, Onpage optimization, Offpage optimization, Up to 6 content pages, 2 blog posts per month, Cancellation 1 month before end of test
380 € per month OR 3800 € per year
Search engine optimization, Keyword analysis for 12 keywords, Strategic meeting per month, Onpage optimization, Offpage optimization, Up to 12 content pages, 4 blog posts per month, Cancellation 1 month before end of trial
470 € per month OR 4700 € per year.
- The hours provided per package for SEO only from the Contractor are the following:
- Basic: 4 hours per month
- Premium: 5 hours per month
- Superior: 7 hours per month
These hours are SEO only and do not include: analysis, strategy planning and meeting, reporting and content creation.
- If additional expenses are requested by the client, the contractor charges an hourly rate of 40 € net. The fee is calculated in time units of 10 minutes or less.
- For invoicing purposes, the parties agree on a binding monthly budget in the amount of the package booked in each case (hereinafter referred to as the monthly budget) for the expenditure for the services pursuant to Clauses 2 to 4.
- The monthly budget is fixed.
- At the beginning of each month for the previous month the Contractor shall send the Customer a list of concrete measures implemented and the budget consumed or charged as a result in text form. In the event that a serious balance exists in favour of the Contractor, the Contractor shall be entitled to invoice the corresponding amount, provided that the resulting additional amount has been agreed with the Client.
- Reasonable travel expenses will be reimbursed separately after presentation of receipts and invoices.
- All agreed prices are net prices and do not include the applicable statutory value-added tax, currently 19% inside Germany. In other EU countries the reverse tax charge will take place.
- The Contractor shall issue the Customer with an invoice for the selected package at the beginning of the current month. If a payment period is not specified in the invoice, the amount is due without deductions within 7 days of the invoice date.
- In the event of default in payment, the Contractor shall be entitled to charge the Customer interest at a rate of 9 percentage points above the base interest rate. In the event of a delay in payment of more than 14 days, the Contractor may suspend further performance of its services until full payment has been made.
- The Customer shall check the invoice immediately after it has been transmitted by the Contractor and to the extent that this is feasible in the ordinary course of business and, if an error becomes apparent, shall notify the Contractor thereof within 7 days. If the customer fails to notify us, the invoice, including the use of the monthly budget, shall be deemed to have been approved, unless it is a matter of an error which could not be detected during the inspection. If the defect was not detectable during the inspection, notification must be made within 7 days of its discovery.
- After 12 months of use, the Contractor reserves the right to fix its prices for a further period of 12 months up to a maximum increase of 10%. The client will be notified of this in good time 6 weeks before the expiry of the 12-month limit after conclusion of the contract, so that the 4 weeks notice period remains unaffected.
7. Other obligations of the client
- The Customer shall nominate a contact person for the Contractor who shall be entitled and able to make and communicate to the Contractor all decisions to be taken within the framework of this contractual relationship.
- The Client shall provide the Contractor with the best possible support in selecting the keywords and, in particular, shall provide comprehensive information on the target group of the websites and possible search terms. The client is solely responsible for the selection of the keywords. This includes in particular the obligation to check the admissibility of keywords proposed by the contractor. If the client does not object to the keywords proposed by the contractor within 3 working days in text form, these are considered released.
- Insofar as the Customer commissions the Contractor with the implementation of Onpage Optimisation measures, the Customer shall save its data before commencing programming work and check the functionality of its website after completion before the updated version is put online. In addition, the client shall also back up his other data, in particular his user data, at regular intervals, at least daily.
- The parties shall immediately inform each other in text form of any legal disputes arising from search engine optimization measures in connection with this Agreement and any progress in the proceedings and shall agree with each other how further action should be taken.
- The client indemnifies the contractor against any claims of third parties in the event of a claim due to alleged or actual infringements of rights and/or infringements of rights of third parties through the selection of keywords and/or due to website contents and undertakes to reimburse any costs incurred by the contractor due to the claim of third parties. Eligible costs shall include in particular the costs of reasonable legal proceedings and defence which the Contractor should incur.
9. Rights of use
The contractor reserves all copyrights to the concepts, programming work and other work results created by him. The client is granted a simple right of use with regard to the work results created for him. This includes a processing right.
- The Contractor shall act only in an advisory and supportive capacity. For the rest, the statutory provisions shall apply to the warranty, whereby claims of the Customer against the Contractor due to poor performance or defects in the performance of the services shall become statute-barred six months after the occurrence of the claim and knowledge or grossly negligent or intentional ignorance of the circumstances giving rise to the claim.
- The Contractor shall endeavour to take its measures in accordance with the guidelines of the respective search engine. However, the parties are aware that individual agreed measures for search engine optimization may violate the guidelines of individual search engines and that this does not constitute a defective performance by the contractor. This applies in particular if the customer has explicitly released certain measures of the contractor in knowledge of the guidelines.
- The Contractor and/or its vicarious agents and/or legal representatives shall be liable for damages other than personal injury only in the event of intent or gross negligence. Contractual and non-contractual liability for material damage and financial loss, loss of profit and consequential damage caused by a defect on the part of the Contractor shall be excluded in the event of slight negligence, insofar as this does not involve liability for the breach of essential obligations (cardinal obligations). By cardinal obligations are meant those obligations the fulfilment of which is essential for the proper execution of the terms and conditions and on the observance of which the customer may regularly rely. In the event of a slightly negligent breach of a cardinal obligation, liability shall be limited only to the foreseeable damage typically incurred in transactions of this type, but not exceeding the amount of the order corresponding to the orders placed in the last year prior to the event causing the damage becoming known.
- Liability is otherwise excluded, whereby the exclusion of liability does not apply in the case of damage to life, body or health of a person or to liability under the Product Liability Act.
- As a service provider, the Contractor shall not be liable for any damage caused by technical malfunctions or service malfunctions of the Contractor or other third parties. The contractor is also not liable for damages which the client could have prevented by reasonable measures, in particular regular, at least daily, program and data backup.
- The terms & conditions runs for an indefinite period and can be terminated with one month’s notice to the end of each month.
- This does not affect the right to extraordinary termination for good cause. An important reason for termination shall be deemed to exist for the Contractor in particular if
- the customer does not comply with his obligation to pay the remuneration despite a reminder,
- the Customer is in arrears with the payment of the monthly remuneration amounting to an amount equal to the remuneration for two months,
- the Contractor is held liable by third parties for alleged infringements of rights in connection with the work for the Client, and/or
- the client was injured in roughly his obligation to cooperate from this contract
- In the event of termination, an outstanding balance in favour of the Contractor shall be settled by the Client if an additional amount has been agreed with the Client. If there is a balance in favour of the customer, the contractor is obliged to repay the overpaid amount. Payments are to be made within 7 days after termination of the contract. Upon termination of the contract, the Agency’s obligations to provide advice shall expire. However, the Agency may not take any action that results in the removal of links to the Website.
- The Contractor is permitted to advertise in a suitable manner with the fact that the Client has commissioned the Contractor to do so, and for this purpose he may also use the Client’s online and offline logos and the like in reference lists beyond the end of the terms & conditions.
- Unless expressly agreed otherwise in writing, the Contractor shall be permitted to accept and process orders from customers in the same or similar sectors during the term of the terms & conditions and beyond. This also applies in particular to the optimization of similar or identical search terms of different clients.
14. Final provisions
- Should the terms & conditions contain ineffective regulations, the effectiveness of the rest of the terms & conditions remains unaffected.
- The services are provided exclusively on the basis of this terms & conditions. The inclusion of a client’s general terms and conditions that contradict these agreements is already now contradicted.
- Subsidiary agreements and terms & conditions amendments require the written form to be legally valid.
- The present terms & conditions is subject exclusively to German law.
- The place of jurisdiction for all disputes arising from or in connection with this terms & conditions shall be Berlin, Germany.
+49 (0) 30 95 999 34 60
HRB 197835 B