§1 Cooperation
(1) The parties shall cooperate in good faith and shall immediately inform each other of any deviations from the agreed procedure or doubts about the correctness of the other party's approach.
(2) If the customer realizes that their own information and requirements are incorrect, incomplete, ambiguous, or unfeasible, they shall immediately notify XICTRON of this and the consequences that are apparent to them.
(3) The contracting parties shall name contact persons and their deputies who shall be responsible for and expertly manage the implementation of the contractual relationship on behalf of the contracting party that appointed them.
(4) The parties shall notify each other immediately of any changes in the designated persons. Until such notification is received, the previously designated contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their previous power of representation.
(5) The contact persons shall communicate at regular intervals about progress and obstacles in the performance of the contract in order to be able to intervene in the performance of the contract if necessary.
(6) Upon request and for a fee based on time spent, XICTRON shall prepare a protocol of the exchange of information between the contact persons and send it to the customer. If the customer has a different opinion, they shall have the right to have their opinion included in the protocol. This right must be exercised no later than one week after receipt of the protocol.
§2 Customer's obligations to cooperate
(1) The customer undertakes to provide all proper and necessary data.
(2) The customer shall support XICTRON in the performance of its contractual obligations. This includes, in particular, the timely provision of information, data material, and hardware and software, insofar as the customer's cooperation requires this. The customer shall provide XICTRON with detailed instructions regarding the services to be provided by XICTRON.
(3) The customer shall provide the necessary number of its own employees with the required expertise to perform the contractual relationship.
(4) If the customer has undertaken to procure materials (images, sound, text, etc.) for XICTRON within the scope of the contract, the customer shall make these available to XICTRON immediately and in a common, directly usable, preferably digital format. If it is necessary to convert the material provided by the customer into another format, the customer shall bear the costs incurred for this. The customer shall ensure that XICTRON receives the rights necessary to use these materials.
(5) The customer shall perform any acts of cooperation at their own expense.
§3 Involvement of third parties
The customer shall be responsible for third parties who act on behalf of the customer in XICTRON's area of activity at the customer's instigation or with the customer's consent in the same way as for vicarious agents. XICTRON shall not be liable to the customer if XICTRON is unable to fulfill its obligations to the customer in whole or in part or in a timely manner due to the conduct of one of the aforementioned third parties.
§4 Deadlines
(1) Deadlines for the provision of services may only be confirmed on the part of XICTRON by the contact person.
(2) The contracting parties shall set deadlines in writing wherever possible. Deadlines, the non-compliance with which causes a contracting party to be in default without a reminder in accordance with § 286 (2) of the German Civil Code (binding deadlines), must always be set in writing and designated as binding.
(3) XICTRON shall not be responsible for delays in performance due to force majeure (e.g., strikes, lockouts, official orders, general telecommunications disruptions, etc.) and circumstances within the customer's sphere of responsibility (e.g., failure to provide cooperation services in a timely manner, delays caused by third parties attributable to the customer, etc.) are not the responsibility of XICTRON and entitle XICTRON to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up period. XICTRON shall notify the customer of any delays in performance due to force majeure.
§5 Scope of services / changes
(1) The scope of services is specified in the valid order confirmation.
(2) If the customer wishes to change the contractually agreed scope of the services to be provided by XICTRON, they shall submit this change request to XICTRON in writing. The further procedure shall be governed by the following provisions. In the case of change requests that can be reviewed quickly and are likely to be implemented within 8 working hours, XICTRON may deviate from the procedure set out in paragraphs 3 to 6.
(3) XICTRON shall examine the effects of the requested change, in particular with regard to remuneration, additional expenses, and deadlines. If XICTRON determines that the services to be provided cannot be performed or can only be performed with a delay as a result of the examination, XICTRON shall inform the customer of this and point out that the change request can only be examined if the services concerned are postponed for an initially indefinite period. If the customer agrees to this postponement, XICTRON will review the change request. The customer is entitled to withdraw their change request at any time; the change procedure that has been initiated will then be terminated.
(4) After reviewing the change request, XICTRON will explain to the customer the effects of the change request on the agreements made. The explanation will either contain a detailed proposal for implementing the change request or information on why the change request cannot be implemented.
(5) The contracting parties shall immediately agree on the content of a proposal for the implementation of the change request and attach the result of a successful agreement to the text of the agreement to which the change relates as a supplementary agreement.
(6) If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain unchanged. The same shall apply if the customer does not agree to a postponement of the services for the further performance of the review in accordance with paragraph 3.
(7) The dates affected by the amendment procedure shall be postponed as necessary, taking into account the duration of the review, the duration of the vote on the proposed amendment and, if applicable, the duration of the amendment requests to be carried out, plus a reasonable start-up period. XICTRON shall notify the customer of the new dates.
(8) The customer shall bear the costs incurred by the change request. These include, in particular, the review of the change request, the preparation of a change proposal, and any downtime. If the parties have agreed on daily rates, the costs shall be calculated according to these rates; otherwise, they shall be calculated according to XICTRON's usual remuneration.
(9) XICTRON shall be entitled to change or deviate from the services to be provided under the contract if the change or deviation is reasonable for the customer, taking into account the interests of XICTRON.
§6 Remuneration
(1) Payment of remuneration shall be made immediately after performance of the service in the case of contracts billed on a time basis and in advance in the case of orders billed at a flat rate. Any deviating payment terms require written confirmation of the change by XICTRON. The customer shall receive a written invoice for each payment transaction.
(2) XICTRON's remuneration shall generally be based on time spent, unless otherwise agreed. Unless otherwise agreed, XICTRON's current remuneration rates shall apply to the remuneration for time spent. XICTRON is entitled to change or supplement the remuneration rates underlying the agreements at its reasonable discretion (§ 315 BGB). Cost estimates or budget plans prepared by XICTRON are non-binding.
(3) The customer shall bear all expenses, such as travel and accommodation costs, expenses, and third-party remuneration claims incurred in the course of the contract's execution, upon presentation of proof. Travel expenses shall only be reimbursed if the distance from XICTRON's registered office exceeds 50 km. Pure travel time shall not be reimbursed. XICTRON may charge a processing fee for the handling of orders with third parties whose costs are passed on directly to the customer.
(4) If the parties have not agreed on remuneration for a service provided by XICTRON which, under the circumstances, the customer could only expect to be provided in return for remuneration, the customer shall pay the usual remuneration for this service. In case of doubt, the remuneration rates charged by XICTRON for its services shall be deemed customary.
(5) All contractually agreed remuneration is subject to statutory sales tax.
§7 Withdrawal
The customer may only withdraw from the contract due to a breach of duty that does not consist of a defect in the purchased item or the work if XICTRON is responsible for this breach of duty.
§8 Termination
(1) The customer and XICTRON may terminate the contractual relationship for contracts with a fixed term without giving reasons with two months' notice before the end of the term. If the contract with XICTRON is not terminated in due time, the term shall be automatically extended by one year.
(2) Termination must be in writing to be effective.
§9 Warranty
(1) XICTRON warrants that the product essentially complies with the specifications of the design and the conceptual specifications.
(2) No liability is assumed for deviations arising from technical circumstances and inconsistent standards, as the display may vary on different output media. Such deviations may occur in particular due to the screen resolution, monitor size, or color settings of the respective output device. In this respect, the documents underlying the concept are only approximately authoritative.
(3) If the product does not deviate significantly from the concept and if this deviation is not due to technical circumstances, XICTRON has the right to rectify the defect. Only if the attempt to rectify the defect fails does the customer have the right to reduce the price or rescind the contract.
(4) XICTRON does not guarantee that the use of the product will achieve certain successes or results.
§10 Rights
(1) All copyrights, rights of use, and other property rights to the services provided by XICTRON—in particular to source code, scripts, databases, designs, layouts, concepts, texts, and graphics—remain with XICTRON until all claims arising from the business relationship have been paid in full. Even after full payment, only a simple, non-transferable, and non-sublicensable right of use is granted. If software is the subject of the services, §§ 69d and 69e UrhG (German Copyright Act) shall apply in addition.
(2) The customer is entitled to use the services provided exclusively within the scope of the contractually agreed purpose. Any use, processing, translation, reproduction, publication, or transfer to third parties – in whole or in part – beyond this scope is not permitted without the express written consent of XICTRON.
(3) The right to use the services provided shall only exist as long as the customer meets its payment obligations. In the case of one-off services, the right of use shall only be revocable until full payment has been made. In the case of ongoing contractual relationships (continuous services), the right of use shall continue as long as the respective payments due are made and the contractual relationship has not been terminated. After full payment for a completed service, the right of use becomes irrevocable, unless otherwise agreed in the contract. If the customer defaults on payments or if insolvency proceedings are opened against their assets, the right of use expires automatically. In this case, the customer is obliged to immediately cease all use and to delete or return to XICTRON all copies, installations, or other reproductions of the services.
(4) If there are outstanding, due, or dunned claims against the customer—including those from an associated order confirmation that are to be settled by standing invoice or subsequent invoicing—XICTRON is entitled to refuse access to programming, hosting, or other technical services until these claims have been settled in full. This denial of access does not constitute a right of withdrawal, but is exercised in accordance with the contractual and statutory right of retention (§§ 273, 320 BGB). Access will be restored immediately upon full payment.
(5) If the customer violates the provisions of this paragraph, the granted right of use shall expire with immediate effect. XICTRON reserves the right to assert claims for damages and to initiate legal action for injunctive relief.
§11 Infringements of property rights
(1) XICTRON shall indemnify the customer at its own expense against all claims by third parties arising from infringements of property rights (patents, licenses, and other property rights). The customer shall inform XICTRON immediately of any claims asserted by third parties. If the customer does not inform XICTRON immediately of the claims asserted, the right to indemnification shall expire.
(2) In the event of property right infringements, XICTRON may, at its own discretion and at its own expense, make changes to the affected service after prior consultation with the customer, which, while safeguarding the interests of the customer, ensure that there is no longer a property right infringement, or acquire the necessary rights of use for the customer, without prejudice to any claims for damages on the part of the customer.
(3) If this subsequent performance is impossible for the contractor or only possible under unreasonable conditions, it shall have the right to take back the services concerned against reimbursement of the remuneration paid. The contractor shall grant the client a reasonable grace period for this, unless this is only possible under unreasonable legal or other conditions.
(4) If the client is responsible for the infringement of property rights, claims against the contractor are excluded.
§12 Liability
(1) XICTRON shall be liable for intent and gross negligence. XICTRON shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb, or health.
(2) In the case of slight negligence, liability is limited to the amount of foreseeable damage that can typically be expected to occur. In any case, liability is limited to the damage typically foreseeable at the time the contract was concluded.
(3) XICTRON shall not be liable for the loss of data and/or programs insofar as the damage is due to the customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
(4) The above provisions also apply in favor of XICTRON's vicarious agents.
§13 Arbitration
(1) In the event of any disagreements arising from or in connection with this contractual relationship, the parties shall first attempt to reach a solution through detailed discussions between the contact persons.
(2) Disagreements that cannot be resolved by the parties shall be settled by arbitration. If one party refuses to participate in arbitration, it may take legal action if it has notified the other party in writing in advance.
(3) To enable arbitration, the parties mutually waive the statute of limitations for all claims arising from the disputed facts from the date of the arbitration request until one month after the end of the arbitration proceedings. The waiver has the effect of suspending the statute of limitations.
(4) The dates affected by the conciliation proceedings, including the preceding discussions between the contact persons, shall be postponed as necessary, taking into account the duration of the conciliation and, if applicable, the duration of the conciliation results to be implemented, plus a reasonable start-up period.
§14 Confidentiality
(1) The documents, knowledge, and experience provided to the other party may only be used for the purposes of this contract and may not be made available to third parties, unless they are intended to be made available to third parties or are already known to the third party. Third parties do not include auxiliary persons involved in the performance of the contractual relationship, such as freelancers, subcontractors, etc.
(2) In addition, the contracting parties agree to maintain confidentiality regarding the content of this contract and the knowledge gained during its execution.
(3) The confidentiality obligation shall continue to apply even after the termination of the contractual relationship.
(4) If one party to the contract so requests, the documents provided by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, unless the other party to the contract can assert a legitimate interest in these documents.
§15 Miscellaneous
(1) The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent may not be unreasonably withheld. The provision of § 354 a HGB (German Commercial Code) remains unaffected by this.
(2) A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.
(3) The contracting parties may only offset claims that have been legally established or are undisputed.
(4) XICTRON is entitled to name the customer as a reference customer on its own websites or in other media. XICTRON may also publicly reproduce or refer to the services provided for demonstration purposes, unless the customer can assert a conflicting legitimate interest.
(5) XICTRON is entitled to mention its name and/or logo on the pages it has created. Furthermore, XICTRON may place a link to its own pages on those of the customer.
(6) All offers and prices of XICTRON are always non-binding and subject to change, unless they have been declared binding in writing. Furthermore, all texts, information, prices, etc. from the customer information are subject to change and errors. Unless otherwise stated, all prices are in euros without value added tax.
(7) XICTRON is entitled to commission third-party service providers to perform parts or all of the range of services.
(8) XICTRON is entitled to use/change the infrastructures, technologies, systems, procedures, or standards used and the service providers and vicarious agents commissioned with the implementation at any time without separate notification, provided that this does not result in any disadvantages for the customer.
§16 Final provisions
(1) All changes and additions to contractual agreements must be recorded in writing for verification purposes. Notifications that must be made in writing may also be made by email.
(2) The law of the Federal Republic of Germany shall apply, excluding international private law and the UN Convention on Contracts for the International Sale of Goods.
(3) The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is the registered office of XICTRON.
(4) The customer's general terms and conditions shall not become part of the contract.
(5) Should individual provisions of the agreements between the parties be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.