General Terms and Conditions of onOffice GmbH
§ 1 Area of Application
(1) onOffice GmbH, Charlottenburger Allee 5, 52068 Aachen, Germany (hereinafter called "onOffice") shall provide all services to its customers solely on the basis of the version of the following General Terms and Conditions (AGB) which are valid at the time of the order. Unless expressly agreed in writing, any different Terms and Conditions shall not apply.
(2) Customers within the meaning of these General Terms and Conditions may only be entrepreneurs (hereinafter called "customers"). Entrepreneurs within the meaning of these General Terms and Conditions shall be natural or legal persons, or legally capable partnerships who are exercising their commercial or independent professional activity at the time of conclusion of the contract with the vendor.
§ 2 Subject of Services
(1) onOffice shall provide services (hereinafter called "services"), primarily in the areas of development, websites, marketing, consulting, hosting and software support. A detailed description of the services to be provided shall be based on binding offers from onOffice and, if necessary, on project contracts and their annexes. The provisions of project contracts shall take precedence over these General Terms and Conditions if you object to them.
(2) In general, onOffice shall provide services only based on a service contract showing the actual costs.
(3) Offers from onOffice shall always be non-binding and subject to confirmation, unless they are marked as binding offers.
(4) If onOffice provides free services, they may be stopped at any time. The customer or third parties shall not derive any claims for reduction, reimbursement or compensation from these free services.
(5) onOffice may use freelance employees and subcontractors to provide the contractual services, as long as this does not infringe the legitimate interests of the customer.
(6) In principle, onOffice shall be free to choose the utilised work equipment and technologies. onOffice may also use open source software and software of third-party providers if the customer can utilise them in accordance with the agreement. § 6 (6) of these General Terms and Conditions shall apply to the use of open source software.
(7) We shall expressly reserve the right to make changes to the description or external presentation of services, especially changes to the design, content or advertising layout.
§ 3 Provision of Services, Ticket System, Changes to Services
(1) Depending on the nature of performance, onOffice shall provide consulting, training and support services at its own premises or at the customer's office.
(2) onOffice shall provide its own ticket system to handle support orders. Within the framework of support, work inquiries shall be processed depending on the receipt and priority of the tickets. The customer shall have no entitlement to a specific reaction time for processing of tickets. If required, the contracting parties may conclude additional, individual contracts with SLA.
(3) If the customer wants to change or extend the commissioned services, he shall inform onOffice about his change request. onOffice shall then evaluate the impacts of the requested change, especially in regard to estimated additional costs and time estimates.
(4) After the change request has been evaluated, onOffice shall inform the customer about the impacts of the change request on the previous agreements. This information shall contain either a detailed proposal for implementing the change request or information on why the change request cannot be implemented.
(5) onOffice may refuse to implement a change request or an extension request from the customer if the changes or extensions are impossible, or if their implementation is unreasonable for onOffice within the framework of its operating capacity. We shall inform the customer accordingly if we discover that services to be provided cannot be furnished or can only be furnished at a later date as a result of the evaluation. The customer shall then decide whether the change procedure is to be continued or ended.
(6) In the event of a positive outcome of the evaluation of the content of a proposal for the implementation of the change request, the contracting parties shall reach an agreement immediately and shall document the results.
(7) If the contracting parties are unable to reach agreement or if the change procedure ends for another reason, the original scope of services shall be retained.
(8) Any dates affected by the change procedure may be deferred after taking account of the duration of the evaluation, the duration of agreement concerning the change proposal and, if necessary, the duration of the change requests to be implemented including an appropriate lead time.
(9) The customer shall pay the costs incurred as result of the change request. These costs shall include, in particular, evaluation of the change request, the formulation of a change proposal and any downtimes. The costs shall be invoiced in accordance with the normal remuneration of onOffice.
§ 4 Remuneration, Due Date, Default
(1) The remuneration agreed between the contracting parties shall apply. If no remuneration is agreed, the rates normally estimated by the provider shall apply.
(2) All prices shall be net prices plus the current statutory VAT rate.
(3) Expenses and special costs which are incurred by the provider at the express request of the customer shall be invoiced at cost price.
(4) If the offered service involves a recurring service, invoices shall be issued monthly in advance for the following month.
(5) Invoice amounts shall become due for payment when the invoice is received. An invoice shall be deemed to have been received at the latest three days after the invoice date, unless the customer provides evidence of a later date of receipt. The customer shall agree to the transmission of electronic invoices.
(6) Default shall occur 14 days after receipt of an invoice without the need for a warning. In the event of default, onOffice shall be entitled to enforce a right of retention in regard to the services to be provided to the customer from the same contract. Interest at 9% above the base interest rate shall be charged on the due payments during the period of default. A flat-rate default charge of up to €15.00 shall also be paid. We shall reserve the right to enforce a claim for further damage.
(7) Objections by the customer to invoices from onOffice shall be raised in writing within three months following receipt of the invoice. Objections may not be raised after this date.
(8) If the customer is in arrears with payment, onOffice shall be entitled to request immediate payment of all amounts due up to the next possible date for termination of the contract and to request advance payment for all other services. If the payment arrears do not only involve insignificant amounts, onOffice shall be entitled to end the contractual relationship.
(9) The customer may only offset claims which are final and absolute or have been recognised in writing by onOffice.
(1) onOffice shall be entitled to adjust the valid prices at most once a quarter to changed market conditions, e.g. on account of higher purchasing costs, taxes or charges. The customer shall be informed immediately about price adjustments. If the adjustments are well above the general rate of inflation, the customer shall have an extraordinary right to terminate the contract. The customer shall be expressly informed about this right of termination on receipt of the notice of price adjustments.
§ 5 Obligations of the Customer
(1) The customer shall guarantee that he does not infringe any third-party rights in connection with the use of the services of onOffice. The customer shall be obliged to carry out a careful check. The customer shall also be obliged to test the materials which he supplies or uploads for viruses, etc. onOffice shall not be obliged to carry out a test.
(2) The customer shall have sole legal responsibility for the content of all supplied or uploaded materials. In response to an initial request, the customer shall release onOffice from all third-party claims which are based on the supply of illegal materials, especially on account of the contravention of competition regulations, criminal regulations, copyright regulations and other legal regulations, but also due to contraventions of valid directives, principles or self-commitments. Release shall also extend to the necessary costs incurred by onOffice in connection with legal defence against the third party. The customer shall be fully liable for the damage which he causes to onOffice through the transmission of data or programs which contain viruses, etc.
(3) If required, the customer shall grant onOffice and the persons appointed by onOffice access to the deployment location and shall instruct his employees to cooperate with onOffice if this is required to provide the services.
(4) If the contracting parties have agreed to provide the services through remote maintenance, the customer shall create the necessary technical conditions for this at his own expense.
(5) The customer shall help onOffice to perform the contractually agreed services. The cooperation obligations of the customer shall include, in particular, the information, documentation and documents which are required from the customer's sphere to provide the services.
(6) The customer shall perform the cooperation acts expressly mentioned above at the latest within one week after being requested to do so by onOffice. onOffice shall be entitled to grant the customer a reasonable period of grace to perform additional cooperation acts. In principle, the customer shall react at the latest within 2 working days to letters or inquiries from onOffice.
(7) The customer shall provide the required number of his own employees to fulfil his contractual obligations; these employees shall possess the necessary expertise.
(8) The customer is aware that, in case of doubt, the agreed services of onOffice may not be provided as per the agreement due to an infringement of or a delay in the customer's cooperation obligations. This may lead, in particular, to delays in the agreed time schedule or to additional costs.
(9) All cooperation acts for which the customer has an obligation shall be performed at his own expense.
(10) onOffice shall have an extraordinary right to terminate a contract if the customer seriously or repeatedly infringes his cooperation obligations. This shall apply, in particular, if the customer does not make payments or does not make them on time, does not provide information or materials, does not cooperate with onOffice, cannot be contacted over a longer period of time or prevents the progress of the order in any other way.
§ 6 Utilisation Rights of the Customer and Provider
(1) onOffice shall grant the customer a simple right, unlimited in terms of time and place, to use the work products which were created individually for the latter in accordance with the contract provisions. If software is the subject of the services, § 69 d and § 69 e of the Copyright Act (UrhG) shall apply. Unless otherwise expressly agreed, the intended use shall only include mere utilisation of the software, but not a processing right or other rights.
(2) Transfer of the source code has not been agreed. The customer shall therefore have no rights to use the source code.
(3) The customer shall not be permitted to change, combine, adapt, translate, decompile, retrograde and disassemble the work products of onOffice or parts thereof, or produce them in a human-readable form. The customer shall also not be permitted to use the work products of onOffice or parts thereof as a basis for developing similar applications, products or websites.
(4) If, by way of derogation, the transfer of exclusive utilisation rights has been individually agreed, the tools developed and used for implementation by onOffice, the underlying data processing programs/functions and other tools in general use shall not be covered by exclusivity.
(5) It shall not be permitted to transfer the rights to third parties.
(6) The work results may contain elements which were licensed by third parties as open source software. In case of doubt, the respective licensing conditions shall apply exclusively to open source software. These General Terms and Conditions may therefore not be used for open source software.
(7) Until such time as the remuneration has been paid in full, the customer shall only be entitled to use the produced work results on a revocable basis. onOffice may prohibit the use of these services, for which payment has not been made by the customer, for the duration of default.
(8) Through utilisation of the services, onOffice shall receive a right of use to evaluate figures and statistics (e.g. number of all configured properties, number of all users, etc.). These figures may be used by onOffice in an anonymised form. onOffice shall guarantee that no conclusions can be drawn about the particular customer or dataset. The customer shall remain the owner of the data.
§ 7 Naming as a Reference
The customer shall hereby agree to be named as a reference on the websites of onOffice and the websites of the manufacturers of standard software used by onOffice, as well as in the reference stories of the above-mentioned companies. The customer shall therefore grant onOffice and the manufacturers the right, without any restrictions on time and location, to use the trademarks and company logos for the purpose of naming references.
§ 8 Dates, Cancellations, Impossibility of Performance
(1) Dates for providing services shall only be binding for onOffice if they are promised to the customer by onOffice in writing and expressly as binding.
(2) When training courses, conferences or other events (e.g. onOffice business-beats) are booked, 50% of the price of the event shall be invoiced for cancellation, irrespective of the reason, later than three weeks before the start of the event. In the event of cancellation later than ten days before the event, the full amount shall be invoiced.
(3) Delays in performance due to force majeure (e.g. strikes, lockouts, official decrees, general telecommunication problems, etc.) and circumstances in the area of responsibility of the customer (e.g. failure to provide cooperation services on time, delays by third parties assignable to the customer, etc.) shall not be the responsibility of onOffice and shall entitle onOffice to defer the date for the supply of the services in question by the duration of the delay plus a reasonable lead time. onOffice shall immediately inform the customer in writing about any delays in performance due to force majeure.
(4) If neither the customer nor onOffice is responsible for impossibility of performance, onOffice shall be entitled to remuneration for the services up to the date of impossibility of performance, unless it is proved that the customer is not interested in partial performance.
§ 9 Termination
(1) Continuing obligation agreements without a fixed term may only be terminated with a period of notice of three months at the end of the respective month.
(2) All concluded continuing obligation agreements shall automatically be extended by a further 12 months, unless they were terminated at the latest 3 months before they were due to end. The burden of proof for prompt termination shall rest with the contracting party terminating the agreement.
(3) The right of extraordinary termination by the contracting parties shall not be affected. An extraordinary right of termination shall exist, in particular, if insolvency proceedings were opened against the assets of the other contracting party or if one contracting party is unable to pay.
(4) Every termination shall be effected in writing in order to become legally valid.
§ 10 Liability
(1) onOffice shall have unlimited liability for the damage incurred by the customer in connection with the provision of services if this damage is due to intentional or grossly negligible behaviour.
(2) onOffice shall also be liable for the damage incurred by the customer in connection with the provision of services if this damage was caused through negligible infringement of a material contractual obligation. In this case the liability of onOffice shall be limited to the damage that was typically foreseeable when the contract was concluded.
(3) All other liability of onOffice shall be excluded.
(4) Liability for the loss of data shall be limited to the typical recovery costs which would have been incurred if the customer had regularly produced backup copies appropriate to the risk level, unless the provisions of § 10 (1) or § 10 (2) apply.
(5) Any liability for faults in the customer's computer and the communication channels from the customer's computer to onOffice shall be excluded.
(6) Minor errors shall be acceptable to the customer. In this case no claims may be enforced against onOffice. A minor error shall be deemed to have occurred, in particular, if it is based on the use of unsuitable hardware or software by the customer or his Internet provider, if the error does not seriously impair the purpose of the contract during reproduction, if force majeure takes place, if the computer breaks down due to a system failure or a line outage, if network problems occur or if the utilised server breaks down for not longer than 24 hours within a period of 30 days.
(7) If onOffice produces the work results based on the customer's instructions and/or on the basis of content provided by the customer, onOffice shall assume no liability for the legal conformity of the work results. onOffice shall accept no liability whatsoever for the content provided by the customer. The customer shall be obliged to arrange a legal review of the services or work services to be provided by onOffice before their publication.
(8) The customer shall be obliged to implement effective measures to prevent and reduce damage. onOffice shall not be liable for the loss of data and/or programs if the damage was caused by the customer failing to back up data, thereby ensuring that lost data could be recovered at justifiable expense.
(9) The liability restrictions shall also apply to the agents of onOffice and to the personal liability of employees, representatives and organs of the provider.
(10) The stipulated liability restrictions shall not apply in the case of liability for physical injury and liability under the Product Liability Act.
(11) Claims asserted by the customer from this contract due to warranty and liability shall become statute-barred at the latest 12 months after the due date and possible notification of the claim. This provision shall not apply to intent and gross negligence, nor to physical injury, non-fulfilment of independent warranties and in the event of malice on the part of the provider. The period shall commence at the end of the month in which the reason for the claim arose and the sales partner became aware of the claim entitlement.
§ 11 Acceptance
(1) If, in derogation of § 2 (2), contractual work services are agreed, onOffice shall provide the customer with the completed work products for acceptance and shall inform the customer about readiness for acceptance via the service portal of onOffice. onOffice shall be entitled to also offer the customer individual services for partial acceptance. On receipt of the notice of readiness for acceptance, the customer shall have a period of ten working days during which he is obliged to send a written acceptance declaration if the work products or services comply with the contractual requirements. Any defects shall be notified immediately in writing to onOffice.
(2) If the acceptance period lapses without onOffice receiving an acceptance declaration or a notice of defect, the work product shall be deemed to have been accepted free of defects at the end of the period. The work product shall also be deemed to have been accepted free of defects if the customer starts to use it, publishes it or pays the agreed remuneration for the work product.
(3) Acceptance-related defects notified by the customer shall be rectified by onOffice in a reasonable period of time or shall be remedied in another way. Acceptance shall be repeated afterwards. The acceptance declaration may not be refused on account of insignificant defects. Insignificant defects shall be regarded as those defects which do not impair or do not seriously impair usability.
§ 12 Warranty
If, in derogation of § 2 (2), contractual work services are agreed, onOffice's warranty shall be based on the following conditions:
(1) onOffice shall give an assurance that the work products which it creates in accordance with the agreement are free of third-party industrial property rights and that, to its knowledge, there are no other rights which restrict or exclude contractual use of the work products. onOffice shall release the customer from all possible third-party claims in this respect.
(2) If contractual use is adversely affected by third-party industrial property rights, the customer shall inform onOffice immediately after becoming aware of this. In this case onOffice shall have the right, to an extent that is reasonable for the customer and in agreement with the customer, to either change the contractual services in such a way that they fall outside the protected area but still comply with the contractual provisions or obtain authorisation that they can be used contractually without restriction and without additional costs for the customer.
(3) In the event of general changes in technology (e.g. browser, server technology, plug-in operating systems, W3C Standards, online access, etc.), onOffice shall not warrant that the created work products will retain their contractually agreed suitability even under the changed circumstances. The customer shall have no right to subsequent adaptation.
(4) If it is possible and reasonable for the customer in regard to the impacts of the defect, onOffice may provide the customer with a temporary solution to circumvent the defect (workaround) until the defect has been finally rectified.
(5) The warranty claim shall not apply if the customer personally changes work products or arranges for them to be changed by third parties without the approval of onOffice, unless the customer proves that the defects in question were not caused through the changes made by the customer or the third party, or as a result of the failure to carry out maintenance/updates.
(6) The warranty period shall be 1 year and shall commence when the work results are accepted. Longer statutory limitation periods for liability and warranty claims shall not be affected.
§ 13 Maintenance of Secrecy
(1) The documents, know-how and experience made available to the other contracting party may only be used for the purposes of the respective contract and shall not be made accessible to third parties, unless they are to be made accessible to third parties by their nature or are already known to the third party. Third parties shall not be the auxiliary persons, e.g. freelance employees, subcontractors, etc., who are used to fulfil the contract.
(2) The contracting parties shall also agree to maintain secrecy regarding the content of the respective contract and the results obtained during fulfilment of the contract.
(3) The obligation to maintain secrecy shall apply even after the contract has ended.
(4) If requested by one contracting party, the documents which it hands over, e.g. strategy papers, briefing documents, etc., shall be returned at the end of the contract if the other contracting party cannot claim a justified interest in these documents.
(5) Press releases, information, etc. in which one contracting party refers to the other contracting party shall only be permitted after prior written agreement – also by e-mail.
(6) onOffice may also name the customer as a reference customer on onOffice's website or in other media without the customer's approval. onOffice may also publicly disclose or refer to the supplied services without the customer's approval.
§ 14 Non-solicitation
The customer shall give an undertaking not to poach any employees of onOffice or appoint them without the permission of onOffice during the period of cooperation between the contracting parties and for a period of one year thereafter. For every case of culpable violation the customer shall be obliged to pay a contractual penalty which shall be fixed by onOffice and reviewed by the competent court in the event of dispute.
§ 15 Miscellaneous
(1) Claims may only be assigned with the prior written permission of the respective other contracting party. Permission may not be refused without good cause. The provisions of § 354 a of the German Commercial Code (HGB) shall not be affected.
(2) A right of retention may only be enforced due to counterclaims from the respective contractual relationship.
(3) The contracting parties may only offset claims which are final and absolute or are not disputed.
§ 16 Final Provisions
(1) Any amendments and additions to contractual agreements shall be recorded in writing for verification purposes. This provision shall also apply to the amendment of the written form requirement itself.
(2) German law shall apply to these General Terms and Conditions to the exclusion of international private law and the UN Convention on the International Sale of Goods (CISG).
(3) If individual clauses of these General Terms and Conditions are invalid or they become invalid due to a subsequent situation, the validity of the other clauses shall not be affected. The invalid clause shall be replaced by a valid clause whose purpose comes as close as possible to the contracting parties' original intention relating to the invalid clause. (4) Aachen shall be the place of performance. Aachen shall be the sole place of jurisdiction for all legal disputes arising from or in connection with this contract.