Terms and Conditions

This English version is a non-binding convenience translation. Only the German version (Allgemeine Geschäftsbedingungen) is legally binding.

General terms and conditions of Droidtech e.K. for custom software and related services. They apply to businesses only.

Scope

1.1 These general terms and conditions (terms) apply to all contracts between Droidtech e.K., owner Michael Rauen, Auf der Eichelsbach 19, 54533 Hasborn, Germany (“we”), and its customers (“you”) for the development of custom software and websites and related services: concept sprint, fixed-price development (MVP, extensions and websites), operation, further development and time-and-materials services.

1.2 We contract exclusively with businesses within the meaning of section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law. We do not enter into contracts with consumers within the meaning of section 13 BGB.

1.3 These terms do not apply to our own software products offered as ready-made services (for example FuE Stundenzettel). The terms agreed for the respective product apply to those.

1.4 The customer’s general terms and conditions do not apply, even if we do not expressly object to them or perform services in knowledge of them. They apply only if we expressly agree to them in text form.

1.5 In case of conflict, the following order of precedence applies:

1. individual agreements,
2. the accepted offer with its annexes (for example service description, prototype, list of features deliberately left out, description of the operation tier) or a separate individual contract,
3. these terms,
4. statutory law.

Conclusion of contract

2.1 Content on our website, sketches generated there and prices shown on the website are not a legally binding offer. A sketch is a non-binding proposal.

2.2 We prepare our offers in text form. We are bound by an offer until the date stated in it (“valid until”).

2.3 You can accept an offer within its validity:

• in writing,
• in text form, for example by email, or
• online via the link to the offer that we send you by email. To do so, you enter your name, confirm that you are authorised to order on behalf of the company named in the offer, and submit the acceptance with the “accept offer” button.

The contract is concluded when we receive the acceptance. By accepting online you confirm that you are authorised to represent the company (section 179 BGB).

2.4 After acceptance you receive an order confirmation in text form; for online acceptance we send it automatically by email. The order confirmation documents the contract. The accepted offer governs its content.

2.5 An acceptance after the validity has expired or with changes counts as a new offer from you. The contract is then concluded only with our confirmation in text form. Acceptance via the link is no longer possible once the validity has expired.

Service stages and types of contract

3.1 Our services build on each other in stages: concept sprint, fixed-price development, operation and further development. Each stage is ordered separately and is a separate contract. No contract creates an obligation to order a further stage. You can stop after any stage; the rights to the results paid for up to then are governed by part 14.

3.2 The scope, price and dates of a service result from the offer. We do not owe services that are not described there; the statutory requirements for freedom from defects (part 15) remain unaffected.

3.3 The following applies to the types of contract:

• Fixed-price development (MVP, extension, further development or website at a fixed price) is a contract for work under sections 631 et seq. BGB. Parts 5, 10 and 15 apply in addition.
• Concept sprint: the law on contracts for work applies to the results named in the offer, with the particularities set out in part 4; parts 10 and 15 do not apply to the sprint.
• Operation, further development in a quota or retainer, and time-and-materials services are provided as services under sections 611 et seq. BGB. We owe diligent performance, and a specific result only where the service description commits to it (for example response times). Where individual assignments within a quota, a retainer or the hours included in an operation tier are by their content to be classified as work, clause 7.3 applies to errors; your approval is equivalent to acceptance. To the extent that tenancy law applies to the provision of hosting, clauses 6.4 and 16.5 apply.

3.4 We may use service providers and subcontractors, for operation in particular data centre operators, and also technical service providers and tools under clause 18.4. We remain responsible to you for their services. The data processing agreement (clause 17.2) applies to sub-processors.

3.5 We choose the technical implementation unless the offer specifies it. We develop with common, documented technology.

Concept sprint

4.1 The concept sprint is a time package at a fixed price. We provide the working days, workshops and reviews stated in the offer and deliver the results stated there, for example a clickable prototype of the core process, a data model, an overview of roles and permissions, a list of features deliberately left out and an offer for the build. How deeply individual topics are covered is decided jointly with you during the sprint.

4.2 The prototype serves to clarify process and user interface. It is not production software; we do not owe that it can be reused in the later build.

4.3 The offer for the build that we hand over as a result of the sprint is an offer under part 2 and binding until the date stated in it. Whether and to what extent the price of the sprint is credited against a later order is governed by the offer for the sprint.

4.4 We hand over the results at the latest in the closing meeting or in text form. If a result named in the offer is missing or incomplete, you can require us to deliver it without additional charge. The results are deemed accepted unless, within seven days of handover, you notify us in text form which result named in the offer is missing or incomplete. We point out this consequence at the handover.

4.5 We provide additional working days only by prior agreement and at the price stated in the offer.

4.6 Unless the offer states otherwise, the sprint does not include: production code, building interfaces, taking over or cleaning up data, or legal, data protection or tax advice.

Fixed-price development

5.1 For an MVP, an extension, further development or a website at a fixed price, we develop the software described in the offer. The scope is determined by the offer and its annexes, for an MVP in particular the prototype and the list of features deliberately left out from the concept sprint.

5.2 The fixed price applies to the agreed scope regardless of the actual effort. We bear additional effort caused by a misjudgement on our part. Changes to the scope are governed by part 9.

5.3 Unless the offer provides otherwise, the delivery includes the executable software, the source code, the database migrations and setup instructions. We provide an onboarding session if the offer includes one.

5.4 Where the software is provided (for example on a test environment, in our operation or in your environment) is governed by the offer.

5.5 Part 10 applies to acceptance and part 15 to defects.

Operation

6.1 In operation we provide the services of the agreed operation tier according to the offer and the service description, in particular hosting in data centres in Germany or the EU, security updates, data backup, monitoring and support within service hours.

6.2 We take on operation only for software that we developed ourselves.

6.3 A response time is the time until a qualified response and the start of work, not until resolution. Response times run only within the agreed service hours. We owe on-call standby outside service hours only if agreed.

6.4 We commit to a specific availability only if the service description quantifies it. Announced maintenance windows and disruptions whose cause lies outside our area of responsibility (for example public networks outside the data centre or your own IT) do not count as downtime. Flat-rate credits are granted only if the service description provides for them; they are offset against statutory claims for the same outage. Statutory rights in respect of defects otherwise remain unaffected.

6.5 We announce maintenance work that interrupts operation in advance. We may carry out urgent security measures without notice; we inform you without undue delay afterwards.

6.6 The frequency and retention period of data backups result from the operation tier. You are responsible for the content that you or your users store in the software and for its lawfulness.

6.7 Unless the offer states otherwise, operation does not include: new features, adjustments to changed interfaces of third-party systems, training, data corrections after operating errors, or your end devices and network. You can order such services through a quota, a retainer or on a time-and-materials basis.

6.8 Operation does not replace liability for defects in a fixed-price development (part 5). We remedy defects under part 15 regardless of whether and which operation contract exists.

6.9 Unless the offer and the description of the operation tier provide otherwise:

• Service hours are Monday to Friday, 9 am to 5 pm, excluding public holidays in Rhineland-Palatinate.
• Priority 1: the software cannot be reached by any user, or its core process cannot be used. Priority 2: an essential function is significantly impaired while the core process remains usable. Priority 3: all other disruptions and requests. We set the priority after your report; if you disagree, we coordinate with you.
• Availability means the share of time in a calendar month during which the software can be reached via the internet at the transfer point of our data centre. We measure it with our reachability monitoring; clause 6.4 sentence 2 applies.

6.10 If a component used in the software, for example a runtime environment, a framework or a library, no longer receives security updates from its manufacturer, we inform you as soon as this becomes foreseeable and offer you the migration to a supported version. As long as you do not order the migration, we do not owe security updates for this component; the other operation services remain unaffected.

Further development and time-and-materials services

7.1 Quota: Each month you receive the hours stated in the offer for changes as agreed. We bill in the time increment stated in the offer, or under clause 7.5 if none is stated, and report the hours monthly. Whether and for how long unused hours are carried over and when they expire is governed by the offer. We bill hours beyond the quota according to the rule in the offer; without such a rule only with your prior approval.

7.2 Retainer: Each month we reserve the capacity stated in the offer. We agree the content together in planning meetings; the delivery rhythm results from the offer. What happens to unused capacity is governed by the offer. If there is no meaningful task, we do not do filler work but raise this with you.

7.3 We fix errors in services that we provided in a quota, in a retainer or within the hours included in an operation tier without charging the effort to the quota, the retainer or these hours, if you report the error within twelve months of delivery.

7.4 We bill time-and-materials services according to the actual time spent at the rates stated in the offer, under clause 7.5 unless stated otherwise, with a record. If the offer states no rate, our hourly rate for time-and-materials services applies, which we tell you in text form before work begins. Estimates for time-and-materials services are non-binding. If it becomes apparent that a stated estimate will be exceeded by more than 15 %, we inform you in advance and continue only with your approval.

7.5 Time recording: we record time to the minute. We add up the time recorded on one calendar day for the same contract and round the total up once to the next full 15 minutes, not each individual activity.

Cooperation and dates

8.1 You name a contact person who knows the process concerned and can make decisions or obtain them at short notice.

8.2 You provide in good time and free of charge what we need for the service, in particular information, documents, sample and test data, and access to systems and interfaces. Where possible, you provide test data without personal reference or anonymised. You attend the agreed meetings (for example workshops, reviews, acceptance) and give feedback and approvals promptly.

8.3 You ensure that you hold the necessary rights to the materials you provide to us and that we may use them for the service without infringing third-party rights.

8.4 Backing up your own systems and data is your responsibility, unless we have taken it on as part of an operation tier.

8.5 If you do not provide cooperation in good time, affected dates are postponed by the duration of the delay plus a reasonable time to resume work. We may bill additional effort caused by this on a time-and-materials basis at the rates under clause 7.4 if we have previously informed you of the missing cooperation and the cost consequence. The statutory rights under sections 642 and 643 BGB remain unaffected.

8.6 Dates and deadlines are binding only if expressly agreed as binding. If we exceed a non-binding date by more than four weeks, you may set us a reasonable grace period in text form; we are in default when it expires. Events beyond our control for which we are not responsible (for example force majeure, widespread disruptions of public networks, official orders) extend dates and deadlines by the duration of the hindrance plus a reasonable time to resume work.

8.7 You tell us which particular professional and legal requirements of your business the software must meet (for example retention and bookkeeping rules, industry rules, accessibility towards consumers); what is described in the offer is implemented. We do not provide legal advice.

Changes to the scope

9.1 The agreed scope does not grow along the way. You notify us of change requests in text form; an email is sufficient. We tell you how the request affects price, effort and dates.

9.2 Swap instead of add: If you want to replace an agreed feature with another, this is possible without additional charge if the effort is the same according to our reasonably substantiated estimate and the replaced feature has not yet been implemented. We record the swap in text form.

9.3 Additional features belong in a later version, that is in further development or an extension. If something additional is to be included in the ongoing development, we prepare a change order offer with price and effect on dates. We implement the change only after you have accepted the change order offer; part 2 applies accordingly. Until then we continue on the basis of the agreed scope.

Acceptance

10.1 A fixed-price development (part 5) requires acceptance. After completion we provide the service and ask you in text form to accept it.

10.2 You test the service within 14 days of receiving the request. Within this period you declare acceptance in text form or refuse it, stating the defects.

10.3 You may not refuse acceptance because of insignificant defects (section 640 (1) sentence 2 BGB). We record such defects and remedy them under part 15.

10.4 If within the period you neither declare acceptance nor refuse it stating at least one defect, the service is deemed accepted (section 640 (2) BGB). We expressly point out this consequence in the request for acceptance.

10.5 If you rightly refuse acceptance, we remedy the defects stated and ask you again to accept. Clauses 10.2 to 10.4 then apply again.

10.6 Partial acceptances take place for self-contained parts if the offer provides for them; the procedure is the same. An intermediate stage to which the payment plan links an instalment is not a partial acceptance unless the offer expressly says so.

Remuneration and payment

11.1 All prices are net plus statutory VAT.

11.2 Fixed prices for a development are due according to the payment plan in the offer. If the offer contains no payment plan, the following applies: 30 % on conclusion of the contract as a down payment, 40 % when a testable intermediate stage is provided on the test environment, 30 % after acceptance. The down payment secures the reservation of our capacity for your project; further instalments before acceptance are payments on account within the meaning of section 632a BGB and, together with the down payment, do not exceed the value of the services provided up to that point. You receive the rights to the results upon full payment (part 14). Unless the offer provides otherwise, the price of the concept sprint is due on handover of the results (clause 4.4). Whether it is credited is governed by the offer.

11.3 Unless the offer provides otherwise, we bill monthly fees (for example for operation, quota or retainer) per calendar month in arrears after the month has ended, part months pro rata. The monthly flat fee, additional hours and usage-based amounts for a month are billed together on one invoice. We provide a record for additional hours and usage-based amounts; the monthly flat fee is a fixed amount and is billed regardless of the actual effort, without an itemised record.

11.4 We bill time-and-materials services monthly in arrears with a record of activities.

11.5 We bill travel costs and expenses according to the rules in the offer; without such a rule only by prior agreement.

11.6 We send invoices electronically, for example as a PDF by email or as an e-invoice in a structured format. You agree to this. Invoices are payable without deduction within 14 days of receipt, by bank transfer to the account stated in the invoice.

11.7 In case of late payment the statutory provisions apply (sections 286 and 288 BGB).

11.8 You may set off only claims that are undisputed, ready for decision or finally established by a court, and counterclaims from the same contractual relationship, in particular because of defects. The same applies to a right of retention.

11.9 If you are in default with a payment due, we may withhold further services until the amount is paid, provided we have announced this in text form with a notice period of at least 14 days. We restrict operation only to the extent that is reasonable in relation to the outstanding amount. We do not delete your data for this reason.

Price adjustment for recurring services

12.1 We may adjust the prices for recurring services (operation, quota, retainer and other monthly services) at most once within twelve months, no earlier than twelve months after the start of the contract, in order to offset increased costs for personnel, infrastructure, licences or third-party services, and by no more than 10 % per adjustment. We announce the adjustment in text form at least two months before it takes effect, stating the new price and the date.

12.2 You may terminate the affected contract with effect from that date, by giving notice before the adjustment takes effect. We point out this right in the announcement. Your right to ordinary termination remains unaffected.

12.3 During a fixed term (for example an annual option) we do not change the prices.

12.4 Fixed prices for one-off services, including the concept sprint, do not change.

12.5 Usage-based fees that under the offer follow a third party’s purchase price (for example purchase price plus a mark-up) change with that purchase price; this is not a price adjustment under clause 12.1. If the third party raises its prices, we inform you as soon as we learn of it. A monthly cap agreed in the offer continues to apply.

Term and termination

13.1 Recurring services run for an indefinite period from the start stated in the offer or contract and have no minimum term. Either party may terminate them with one month’s notice to the end of a calendar month, unless the offer or contract provides otherwise.

13.2 If you chose a fixed term in the offer (for example an annual option), ordinary termination is excluded during that term. It is possible at the earliest as of the end of the fixed term, with the notice period under clause 13.1. If the contract is not terminated, it then continues for an indefinite period and can be terminated under clause 13.1; the discount of the annual option then no longer applies unless you choose the option again.

13.3 Individual components of a contract (for example a quota alongside operation) can be terminated separately, unless the offer provides otherwise. If one component requires another (for example a retainer requires an operation tier with a test environment), it ends when the other ends; we point this out on termination.

13.4 The right to extraordinary termination for good cause remains unaffected. Good cause for us exists in particular if you are in default with payments amounting to two monthly fees and a grace period of 14 days has expired without result.

13.5 Termination requires text form; an email is sufficient.

13.6 You can use the hours of a quota, including hours carried over, until the end of the contract. Thereafter they expire without refund, unless the offer provides otherwise. If we terminate by ordinary notice, or if you terminate for good cause for which we are responsible, we refund the price of unused carried-over hours pro rata at the hourly rate of the quota.

13.7 For contracts for a fixed-price development (part 5), the statutory termination rules apply (sections 648 and 648a BGB).

Rights of use

14.1 For all work results that we create specifically for you (in particular source code, executable code, database migrations, documentation, setup instructions, prototype, data model and concepts), we grant you, upon full payment of the respective remuneration, the exclusive right, unlimited in time, territory and content, transferable and sublicensable, to use, modify, reproduce, distribute and make them publicly available in all known types of use, including as a service for third parties. This allows you to develop the software further without us, have it operated elsewhere or put it out to tender. If a contract for a development ends early, you receive these rights to the work results created up to then, including the source code, once you have paid the remuneration owed up to then (sections 648, 648a BGB). We reserve a non-exclusive right to use generally usable program parts that contain no confidential information, no trade secrets and no particulars of your process in other projects. To the extent that work results are not protected by copyright, we leave them to you for free disposal with the same powers.

14.2 Until full payment you may use the work results as intended under the contract. If you are in default with a not insignificant part of the remuneration for these results, at least 10 %, we may revoke this provisional right of use, provided we have announced the revocation in text form with a notice period of at least 14 days.

14.3 If the software contains our own components that we did not develop specifically for you but independently of your order (for example reusable program modules, tools or templates), you receive, upon full payment, a non-exclusive, perpetual, irrevocable and transferable right to use and modify them as part of the software and to pass them on with it, including in source code. All other rights to them remain with us.

14.4 Third-party libraries and components, including open-source ones, remain with their rights holders and are subject to their own licences. On request we tell you which components are used and under which licences. We use components whose licence could oblige you to disclose your own source code only after agreeing this with you.

14.5 We may continue to use our general knowledge and experience, methods and ideas gained or used in the work. We may also develop software with similar functions for other customers, but without using your confidential information or the source code created specifically for you.

14.6 If your software becomes a product that is also to be offered to third parties (licence or participation model), a separate contract governs the rights. It takes precedence over these terms.

14.7 You grant us a non-exclusive right to use materials you provide to us for the performance of the contract.

Defects

15.1 This part applies to a fixed-price development (part 5). The statutory provisions apply subject to the following.

15.2 The service is free of defects if it has the agreed quality resulting from the offer and its annexes and is otherwise suitable for the use presupposed under the contract, or else for the ordinary use (section 633 (2) BGB). There is no defect to the extent that a deviation arises only after acceptance because the software is modified by you or third parties, used in an environment not agreed, or affected by changes to third-party systems or interfaces.

15.3 Please report defects in text form with a comprehensible description: what happens, when, and how it can be reproduced.

15.4 We provide subsequent performance at our choice by remedying the defect or by producing the work anew. If a reasonable period for subsequent performance has expired without success or subsequent performance fails, you have the statutory rights, in particular price reduction, withdrawal and self-remedy. Damages and reimbursement of wasted expenses are governed by part 16.

15.5 Claims for defects become time-barred twelve months after acceptance. This does not apply in cases of intent, fraudulent intent (including fraudulent concealment), a guarantee under clause 16.1, claims for damages for injury to life, body or health, for gross negligence, or under the Product Liability Act; in these cases the statutory periods apply.

15.6 If it turns out that there is no defect for which we are responsible, we may bill the effort for the investigation on a time-and-materials basis at the rates under clause 7.4 if you could have recognised with a reasonable check of your own that there was no such defect.

Liability

16.1 We are liable without limitation for intent and gross negligence, for injury to life, body or health, for fraudulent intent, under a guarantee that we have expressly designated as such and given in text form, and under the Product Liability Act.

16.2 In the case of slight negligence we are liable only for the breach of essential contractual obligations. These are obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance you may regularly rely. In this case liability is limited to the foreseeable damage typical for the contract at the time of conclusion.

16.3 Otherwise, liability for slight negligence is excluded.

16.4 In the case of slight negligence, we are liable for loss of data only in the amount of the effort that would have been required to restore it with regular data backups in line with the state of the art. This does not apply to the extent that data backup is part of our contractual services.

16.5 To the extent that tenancy law applies to the provision of hosting, strict liability for defects already present at the conclusion of the contract (section 536a (1) BGB) is excluded. Liability for fault remains in accordance with clauses 16.1 to 16.4.

16.6 Credits provided for in a service description for availability below the agreed level are offset against claims for damages for the same outage.

16.7 The liability rules of this part also apply to our legal representatives and vicarious agents.

Data protection and processing on behalf

17.1 Both parties comply with applicable data protection law.

17.2 To the extent that we process personal data on your behalf (for example in operation, when maintaining the software in your cloud environment, in support with access to production data or during tests with real data), we conclude a data processing agreement under Art. 28 GDPR before this processing begins. In matters of data protection that agreement takes precedence over these terms.

17.3 You are the controller within the meaning of the GDPR for the personal data processed in your software. How we process the data of your contact persons for handling the contract is described in our privacy policy.

Confidentiality and references

18.1 Both parties treat as confidential all information of the other party that is marked as confidential or recognisably confidential from the circumstances, and use it only for the performance of the contract. This does not apply to information that is or becomes public without breach of this obligation, that the receiving party already lawfully knew or developed independently, or whose disclosure is required by law or by an authority. Disclosure to advisers bound to confidentiality and to our service providers and subcontractors under clauses 3.4 and 18.4 is permitted, provided they are bound to confidentiality.

18.2 The confidentiality obligation applies during the collaboration and for three years after it ends; for trade secrets, as long as they remain trade secrets.

18.3 We name you as a customer or reference, for example on our website, only if you have agreed in advance in text form. You can revoke your consent at any time with effect for the future.

18.4 In our work we use technical service providers and software tools, for example for hosting, communication, development and documentation. Your information and your source code go only to providers that are contractually bound to confidentiality and do not use the content for their own purposes, in particular not for training or improving their services. We pass personal data from your business to such service providers and tools only to the extent that the data processing agreement (clause 17.2) permits it.

Handover and end of contract

19.1 When an operation contract ends, you receive on request, without additional charge:

• the current state of the source code including database migrations and setup instructions, to the extent that you hold the rights to it under part 14, and
• the data that you or your users stored in the software, as held by us, in a common, machine-readable format (for example as a database backup).

The request can be made in text form until 30 days after the end of the contract. Obligations to return and delete personal data under the data processing agreement remain unaffected and take precedence.

19.2 We provide further support for moving to you or to another provider (exit package) at the price stated in the offer, or, if there is no such provision, on a time-and-materials basis at the rates under clause 7.4. This includes in particular preparing the data for another system (for example conversion into a specific target format, cleansing or mapping to third-party data structures, and support with the import), setup with the new operator, an onboarding session and follow-up questions.

19.3 We register domains for your software in our name; we are then the domain holder. We use them only for your software and maintain them for the term of the operation contract. When the contract ends, we transfer the domain at your request to you or to a provider you name, provided that no invoices due for the domain or for the operation that includes it are outstanding. The costs of the transfer are governed by the offer; if it contains no provision, we charge only the fees that third parties charge us for the transfer. You can make the request in text form until 30 days after the end of the contract; after that we may release the domain if we have pointed this out to you in text form beforehand.

19.4 We delete the data that you or your users stored in the software no earlier than 30 days after the end of the contract and not before completing a handover requested in time under clause 19.1, but no later than 30 days after the request deadline has expired or the handover has been completed. We point out the deadline for the request and the subsequent deletion to you in text form when we confirm the termination. Backup copies are deleted when their regular retention period expires. Statutory retention obligations and instructions under the data processing agreement take precedence. On request we confirm the deletion in text form.

Final provisions

20.1 The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

20.2 If you are a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is our registered office in Hasborn; accordingly the Local Court (Amtsgericht) Wittlich and the Regional Court (Landgericht) Trier have jurisdiction. We may also sue you at your general place of jurisdiction.

20.3 Declarations regarding the contract require text form unless these terms provide otherwise; an email is sufficient. Individual agreements take precedence over these terms (section 305b BGB). For evidence they should be recorded in text form.

20.4 The contract language is German. Translations of these terms are for information only; the German version is binding.

20.5 For an ongoing contract, the version of these terms that applied when it was concluded applies. Changes for ongoing contracts take effect only with your consent in text form.

20.6 If a provision of these terms is wholly or partly invalid, the rest of the contract remains valid. The statutory provision replaces the invalid provision (section 306 BGB).