General Terms and Conditions
for Software Development, IT Services, Hosting, Maintenance and Consulting
Notice:
This English version is provided solely for convenience and informational purposes.
Only the German version is legally binding.
In case of discrepancies, conflicts or interpretation issues, the German version shall prevail.
1. Scope of Application
1.1 These General Terms and Conditions apply to all contracts between upbyte® e.K. and its clients for software development, websites, platforms, IT services, hosting, maintenance, support, consulting and training.
1.2 Services are provided exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law. Contracts with consumers are not concluded.
1.3 Deviating, conflicting or supplementary terms and conditions of the client shall not apply unless upbyte® e.K. has expressly consented to their applicability in text form.
1.4 Individual agreements, offers, service descriptions, order confirmations and separate contracts shall take precedence over these General Terms and Conditions.
1.5 These General Terms and Conditions shall also apply to future services, provided they have been validly incorporated into the respective contract.
1.6 upbyte® e.K. is a registered sole trader (eingetragener Kaufmann). There is no corporate limitation of liability arising from this legal form. Contractual limitations of liability shall arise exclusively from these General Terms and Conditions, the respective contract and mandatory law.
2. Formation of Contract and Contract Documents
2.1 Offers from upbyte® e.K. are binding only if they are expressly designated as binding. Otherwise, offers are non-binding.
2.2 A contract is formed by acceptance of an offer, signing, order confirmation, order by email, payment, provision of services or commencement of service delivery.
2.3 The content, scope, deadlines and remuneration for services shall be determined in the following order of priority:
a) individual agreements,
b) offer or order confirmation,
c) service description or project description,
d) separate annexes such as DPA, SLA, TOMs or support agreement,
e) these General Terms and Conditions.
2.4 In the event of contradictions, the more specific provision shall prevail.
3. Scope of Services
3.1 upbyte® e.K. shall perform the agreed services diligently, professionally and in accordance with the agreed scope of services.
3.2 Only services that have been expressly agreed are owed. Services not agreed include, in particular, legal advice, tax advice, data protection advice, compliance advice, permanent operational monitoring, training, documentation, migrations, data cleansing or source code handover.
3.3 Consulting, support, maintenance and other ongoing activities constitute services (Dienstleistungen), unless a specific, acceptance-capable work (Werk) has been expressly agreed.
3.4 No specific commercial success, revenue, ranking, conversion value, savings effect or other business outcome is owed.
3.5 Third-party services, cloud services, data centres, APIs, payment services, domains, DNS services, network operators and other external services are only available within the scope of their actual availability and terms.
4. Client's Obligations to Cooperate
4.1 The client shall provide all information, content, data, access credentials, rights, licences, contact persons, decisions and technical requirements necessary for the service in a timely and complete manner.
4.2 The client shall designate a technically qualified contact person with decision-making authority.
4.3 The client is responsible for the accuracy, completeness and lawfulness of its content, data, specifications and system environments.
4.4 Delays caused by the client's failure to cooperate or by insufficient or late cooperation shall result in reasonable deadline extensions.
4.5 Additional effort caused by the client's failure to cooperate or late cooperation, incomplete information, subsequent changes or unsuitable client systems shall be remunerated separately.
5. Project Execution and Changes
5.1 Project services shall be rendered on the basis of the agreed service description, an offer, a project plan or other documented task description.
5.2 Changes or extensions to the scope of services require an agreement in text form.
5.3 A change request from the client may have implications for remuneration, deadlines, resources, technical implementation, data protection, security and third-party services.
5.4 upbyte® e.K. is not obliged to implement change requests before they have been confirmed.
5.5 If upbyte® e.K. commences implementation of a change request at the client's request prior to final approval, the effort incurred shall be remunerated.
5.6 Meetings, emails, feedback, tickets or productive use do not automatically extend the scope of services.
6. Acceptance of Work Products
6.1 Where an acceptance-capable work has been agreed, acceptance by the client shall take place upon completion.
6.2 upbyte® e.K. may require partial acceptance for clearly separable deliverables.
6.3 The client shall review the work within ten business days of provision or request for acceptance.
6.4 Acceptance may only be refused due to material defects. Minor defects shall not prevent acceptance.
6.5 If the client refuses acceptance, the client must describe the material defects in a comprehensible manner in text form within the review period.
6.6 If neither acceptance nor a substantiated refusal of acceptance is received within the review period, the work shall be deemed accepted upon expiry of a reasonable additional period set by upbyte® e.K.
6.7 Productive use shall constitute acceptance, unless use is expressly for testing purposes only.
6.8 These provisions do not apply to pure services, consulting, support, maintenance, hosting or SaaS services without an agreed acceptance-capable work.
7. Hosting, SaaS and Ongoing Services
7.1 Ongoing services include, in particular, hosting, maintenance, technical support, SaaS provision and other operational services.
7.2 The type, scope, term, remuneration, storage limits, support hours and technical parameters shall be determined by the respective contract.
7.3 Unless a binding SLA has been agreed, upbyte® e.K. does not warrant any specific minimum availability, response time or recovery time.
7.4 upbyte® e.K. shall endeavour to maintain reasonable availability of the agreed services.
7.5 The following shall not constitute downtime: scheduled maintenance, emergency maintenance, force majeure, disruptions at third-party providers, failures of data centres, cloud providers, DNS services, domains, certificates, APIs, network operators, payment services or disruptions caused by the client.
7.6 Scheduled maintenance shall be announced in advance where possible. Urgent maintenance, security measures or emergency interventions may be carried out without prior notice.
7.7 upbyte® e.K. may temporarily suspend services or access where this is necessary due to payment default, security risks, misuse, unlawful content, third-party measures or for the protection of systems.
7.8 Any suspension shall be proportionate and, where possible, limited to the affected services.
8. Data Backup and Data Responsibility
8.1 The client remains responsible for its data, content, access credentials, user accounts, permissions and lawful use.
8.2 upbyte® e.K. shall create backups only if this has been expressly agreed.
8.3 The scope, frequency and retention period of backups shall be determined by the respective contract.
8.4 No guarantee of complete recoverability is given.
8.5 The client is obliged to maintain its own adequate data backups, particularly prior to migrations, updates, modifications, deletions, imports or productive interventions.
8.6 In the event of data loss, upbyte® e.K. shall be liable only for the recovery effort that would have been necessary had the client maintained proper data backups, unless mandatory liability applies.
9. Data Handover upon Contract Termination
9.1 Upon termination of ongoing services, upbyte® e.K. shall make the client's data available for a period of 30 days, insofar as this is technically feasible, legally permissible and covered by the scope of services.
9.2 The export format shall be determined by the respective service or the agreement reached.
9.3 Additional assistance with export, migration, data preparation, provider migration or reactivation shall be remunerated on a time and materials basis.
9.4 After expiry of the availability period, data may be deleted, provided no statutory retention obligations or legitimate preservation interests apply.
9.5 Backups may persist within regular backup cycles and shall be deleted or overwritten upon expiry of the respective cycles.
10. Remuneration and Payment
10.1 Remuneration shall be in accordance with the respective contract as a fixed price, on a time and materials basis, as monthly or annual remuneration, or a combination thereof.
10.2 All prices are net prices plus applicable statutory value added tax, insofar as VAT is payable.
10.3 Invoices are due within 14 days of the invoice date without deduction, unless otherwise agreed.
10.4 upbyte® e.K. is entitled to request instalment payments, advance payments or milestone payments insofar as this has been agreed.
10.5 Services on a time and materials basis shall be invoiced at the agreed hourly rates.
10.6 Travel time, travel expenses, expenses, licence costs, third-party fees and other ancillary costs shall be invoiced separately, unless they are expressly included in the price.
10.7 In the event of default in payment, the statutory default interest shall apply. Further claims for damages due to default are reserved.
10.8 The client may only offset claims against undisputed or legally established counterclaims.
10.9 The client may only assert rights of retention in respect of claims arising from the same contractual relationship.
11. Price Adjustment for Ongoing Services
11.1 For ongoing services, upbyte® e.K. may adjust the remuneration at the earliest after twelve months if relevant cost factors change.
11.2 Relevant cost factors include, in particular, personnel, infrastructure, energy, data centre, cloud, licensing, third-party, support, security, tax and compliance costs.
11.3 Price adjustments shall be communicated to the client in text form at least three months prior to taking effect.
11.4 The price adjustment must be substantiated in a comprehensible manner.
11.5 In the event of an increase of more than 10% within twelve months, the client may extraordinarily terminate the affected ongoing contract effective as of the date the increase takes effect.
12. Usage Rights and Copyright
12.1 All copyrights, ancillary copyrights and other rights in concepts, software, websites, designs, documentation, source code, object code, modules, scripts, templates, frameworks, methods and other work results shall remain with upbyte® e.K. or the respective rights holder, unless expressly agreed otherwise.
12.2 Upon full payment, the client shall receive a simple, non-exclusive, non-transferable, temporally unlimited licence to use the individually created work results for the contractually agreed purpose.
12.3 Use beyond the agreed purpose, including in particular distribution, sublicensing, resale, public provision or use by third parties, is only permitted with the consent of upbyte® e.K. in text form.
12.4 Handover of source code, development files, build scripts, repositories, access credentials or internal documentation is only owed if this has been expressly agreed.
12.5 Prior to full payment, the use of work results is only permitted on a revocable basis and only within the agreed scope.
12.6 upbyte® e.K. may use general know-how, methods, experience, preliminary work, standard components and reusable modules for other clients, provided that no confidential information of the client is disclosed.
13. Open Source, Third-Party Software and APIs
13.1 The delivery of services may include open-source components, third-party software, frameworks, libraries, APIs, cloud services or other third-party services.
13.2 Open-source components and third-party software are subject to the respective licence and usage terms of the rights holders.
13.3 The client is obliged to comply with the respective applicable licence terms.
13.4 upbyte® e.K. does not warrant the ongoing availability, freedom from defects or continued unchanged provision of third-party services, APIs, cloud services or open-source components.
13.5 If the client specifies particular third-party providers, licences, APIs, accounts or technical systems, the client shall bear the resulting risks, unless upbyte® e.K. has expressly assumed them.
14. AI-Assisted Service Delivery
14.1 upbyte® e.K. may use AI-assisted tools to support service delivery, insofar as this is legally permissible and no conflicting agreement exists.
14.2 Client data shall not be released for training external AI models without a separate legal basis or agreement.
14.3 The client may only provide confidential, personal, regulated or sensitive data if a legal basis exists and use within the project has been approved.
14.4 AI-assisted results shall be appropriately reviewed insofar as they form part of the owed services.
14.5 No guarantee is given for the accuracy, completeness, protectability, legal permissibility or commercial exploitability of AI outputs.
15. Warranty
15.1 The statutory warranty rights apply to work products in accordance with these General Terms and Conditions.
15.2 upbyte® e.K. warrants that acceptance-capable work products shall substantially conform to the agreed service description upon acceptance.
15.3 Defects must be reported by the client without delay upon discovery in text form and in a comprehensible manner.
15.4 The defect description should include, in particular, error messages, screenshots, logs, reproduction steps, the affected environment and the impact.
15.5 upbyte® e.K. may remedy defects through repair, re-performance, update, configuration change, workaround or instructions, insofar as this is reasonable for the client.
15.6 The following do not constitute defects: change requests, missing features outside the service description, operator errors, unsuitable system environments, client-side changes, third-party disruptions, API changes, incorrect client data or insufficient cooperation.
15.7 Warranty claims shall lapse insofar as the client or third parties have made changes to the services without the consent of upbyte® e.K. and the defect is attributable to such changes.
15.8 Warranty claims for work products shall become time-barred twelve months after acceptance, unless mandatory law provides for longer periods.
15.9 Claims arising from intent, gross negligence, injury to life, body or health, fraudulent concealment, guarantees and mandatory statutory liability shall remain unaffected.
16. Liability
16.1 upbyte® e.K. shall be liable without limitation in cases of intent, gross negligence, injury to life, body or health, under the German Product Liability Act, for expressly assumed guarantees, for fraudulent concealment of defects and in other cases of mandatory statutory liability.
16.2 In cases of ordinary negligence, upbyte® e.K. shall only be liable for the breach of material contractual obligations.
16.3 Material contractual obligations are those obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the client may regularly rely.
16.4 In cases of ordinary negligence, liability shall be limited to the foreseeable damage typical of the contract.
16.5 In addition, in cases of ordinary negligence, liability per incident of damage shall be limited to the remuneration agreed in the respective contract.
16.6 For ongoing services, liability per incident of damage in cases of ordinary negligence shall be limited to the remuneration of the last twelve months.
16.7 upbyte® e.K. shall only be liable for loss of profit, indirect damages, consequential damages, lost savings, business interruptions and reputational damages in cases of ordinary negligence if such damages are foreseeable and typical of the contract and a material contractual obligation has been breached.
16.8 upbyte® e.K. shall only be liable for disruptions, outages, changes or termination of third-party services insofar as upbyte® e.K. is responsible for such events.
16.9 The limitations of liability shall also apply in favour of employees, freelancers, subcontractors and vicarious agents of upbyte® e.K.
16.10 The personal and unlimited liability of the owner of a registered sole trader (e.K.) is not excluded under company law by these General Terms and Conditions. The foregoing contractual limitations of liability shall remain unaffected, insofar as they have been validly agreed.
17. Force Majeure
17.1 Neither party shall be liable for delays or failures in performance caused by events beyond their reasonable control.
17.2 Such events include, in particular, natural disasters, fire, flooding, war, terrorism, strikes, lockouts, pandemics, governmental measures, power outages, failures of public networks, cyberattacks despite reasonable protective measures and significant third-party disruptions.
17.3 Performance obligations shall be reasonably deferred for the duration of the disruption.
18. Data Protection and Data Processing
18.1 The parties shall comply with the respectively applicable data protection regulations.
18.2 Insofar as upbyte® e.K. processes personal data on behalf of the client, the parties shall enter into a separate Data Processing Agreement pursuant to Art. 28 GDPR before processing commences.
18.3 These General Terms and Conditions do not replace a Data Processing Agreement, technical and organisational measures or data protection documentation.
18.4 The client remains responsible for the lawfulness of its data processing, content, purposes, legal bases, data subject rights and deletion obligations, unless otherwise agreed.
18.5 Support access to client systems shall only occur insofar as it is necessary for the provision of services or has been authorised by the client.
19. Subcontractors
19.1 upbyte® e.K. may engage subcontractors, freelancers, hosting providers, cloud providers, data centres and other service providers.
19.2 upbyte® e.K. shall carefully select subcontractors and appropriately obligate them in respect of confidentiality, data protection and security.
19.3 Insofar as personal data is involved, the provisions of the respective Data Processing Agreement shall apply.
19.4 International subcontractors or third-country transfers shall only be used insofar as this is legally permissible.
20. Confidentiality
20.1 Both parties undertake to treat confidential information of the respective other party as confidential.
20.2 Confidential information includes, in particular, trade secrets, technical information, access credentials, calculations, client information, project data, concepts and non-publicly available documents.
20.3 Information that is generally known, lawfully received from third parties, independently developed or required to be disclosed by law is not confidential.
20.4 The confidentiality obligation shall continue to apply for five years after termination of the contract. For trade secrets, it shall apply for as long as the information constitutes a trade secret.
20.5 Reference naming, logo use or case studies shall only take place with the client's consent in text form.
21. Term and Termination
21.1 The term and notice periods shall be determined by the respective contract.
21.2 Unless otherwise agreed, contracts for ongoing services shall run for an indefinite period and may be terminated with one month's notice to the end of the month in text form.
21.3 The right to extraordinary termination for good cause shall remain unaffected.
21.4 Good cause for upbyte® e.K. exists in particular if the client is in significant payment default, materially violates its cooperation obligations, uses unlawful content, causes security risks or the performance of the contract becomes unreasonable.
21.5 Upon termination of the contract, ongoing usage rights, access and operational services shall cease, unless otherwise agreed.
21.6 Outstanding remuneration claims shall remain unaffected by the termination of the contract.
22. Export Control and Prohibited Use
22.1 The client shall not use services, software, access, data and work results for unlawful purposes.
22.2 The client is obliged to comply with applicable export control, sanctions and embargo regulations.
22.3 upbyte® e.K. may refuse, suspend or terminate services if there are concrete indications of unlawful use, sanctions violations or export control risks.
23. Final Provisions
23.1 German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
23.2 The place of jurisdiction shall be the registered seat of upbyte® e.K., provided the client is a merchant, a legal entity under public law or a special fund under public law and no mandatory statutory place of jurisdiction applies.
23.3 The contractual language is German. Translations are for informational purposes only. In the event of contradictions, the German version shall prevail.
23.4 Legally relevant declarations, in particular terminations, defect notifications, approvals and change requests, require text form, unless a more stringent form is prescribed by law.
23.5 Should individual provisions be or become invalid, the remaining provisions of the contract shall remain in force. The statutory provisions shall apply in place of the invalid provision.