Terms & Conditions
General Terms & Conditions of S.HE Business GmbH
1. Scope of application
- The following General Terms & Conditions (“T&C”s) apply for all legal business of S.HE Business GmbH, Marktstrasse 5, 48683 Ahaus, (“S.HE Business”) and its contract partner (“Customer”).
- S.HE Business will not recognise any conditions of the Customer that contradict these T&Cs, unless S.HE Business has expressly agreed to their applicability in written form. These T&Cs apply even if S.HE Business fulfils its contract with the Customer without protest and in full knowledge of differing Customer terms and conditions to the contrary.
- These T&Cs apply for any current and future business transactions with the Customer. They apply even if they are not expressly mentioned at a later time.
2. Contract conclusion and contract fulfilment
- The contract between S.HE Business and the Customer only comes into existence by way of a written confirmation of the Customer order. The Customer confirms an order by accepting the offer provided by S.HE Business. All offers submitted by S.HE Business will remain subject to change and non-binding until the order confirmation is received, unless it has been stated in writing that the offer is binding.
- The formation and any amendments or additions to the contract require the written form. None will be deemed valid that have not been submitted in writing. Emails will suffice to comply with the written form.
- Meeting logs forwarded by S.HE Business are binding unless the Customer contradicts them immediately after receipt.
- All work documentation, electronic data and recordings created or commissioned by S.HE Business within the scope of the order development, as well as all rights for this work documentation are retained by S.HE Business. No claim to surrender or retain such documentation exists. Specifically, the Customer is not granted any rights to use images, drawings and/or illustrations, presentations, raw or working data or prototypes. Should the Customer request the assignment of relevant usage rights and/or the provision and/or retention of such work documentation, electronic data and/or recordings, such rights assignments must be agreed and remunerated separately.
- Due dates and deadlines stated by S.HE Business are non-binding, unless expressly agreed otherwise in written form.
- S.HE Business is entitled to provide partial deliveries (specifically individual modules), provided such partial deliveries are reasonable for the customer.
3. Scope of service delivery and content of delivery
- The specific service delivery obligations of S.HE Business are stated in the relevant order and/or specifications.
- The services to be provided by S.HE Business are subject to the correct and timely provision of contractually agreed participation obligations of the Customer or any third parties to be commissioned. Any additional costs incurred by the Customer due to a breach in their participation obligations are the responsibility of the Customer. Furthermore, § 4 (6) applies for any additional costs caused by the Customer.
Additional services supplied that have not been agreed in the contract will, unless agreed otherwise, be billed separately according to time spent.
Additional services specifically comprise:
- Content and data maintenance
- Documentation of any kind
- Documentation of the source code
- User training
- Services within the scope of a workshop
- Consulting services
- Travel costs
- S.HE Business will receive EUR 0.80 commuting expenses per kilometre driven in an own vehicle plus applicable VAT. An expense claim for hotel, rental cars, taxi and/or public service transport will be submitted at cost. Daily expenses will be billed on the basis of the maximum rates permissible under tax law. Other out-of-pocket expenses, material and travel expenses will be invoiced separately, plus applicable VAT.
- S.HE Business is entitled to subcontract all third-party services required for order fulfilment in the name and on the order of the Customer with the Customer’s consent. When selecting a third-party subcontractor, S.HE Business is required to ensure a good balance of economy and the best possible outcome on behalf of the Customer.
- 50% of the order total is due at the time of order confirmation for any orders with a net order volume of less than EUR 5,000.00. The remainder is due at the time of approval/delivery. The work will be deemed approved 14 days after creation of the final invoice.
- 25% of the order total is due at the time of order confirmation, 50% of the order total at the time of approval/delivery of the layout and/or the concepts/draughts, and the remaining 25% upon completion of the works for a net order volume greater than EUR 5,000.00. The work will be deemed approved 14 days after creation of the final invoice
- Where an official handover is agreed, the work will be deemed handed over when the delivery is complete or the system has gone live S.HE Business has informed the Customer with reference to the fictitious acceptance in accordance with § 4 (3) and has prompted the Customer to accept the handover, 14 days have passed since the delivery and/or a 14 days test phase has passed and the Customer has failed to accept the delivery within that tie frame for other reasons that a fault reported to S.HE Business, which makes the use of the delivery impossible or significantly infringes its use.
- Payments are due at the time of invoice creation net without any deductions (discount).
- All services billed by S.HE Business are exclusive of the legally applicable VAT rate.
- Should the Customer change and/or add orders, works, extensive planning requirements or similar during the time of order implementation, the Customer shall compensate S.HE Business for any and all additional costs and release S.HE Business from any liability towards third parties and compensate those third parties for any additional requirements.
- Should the Customer cancel an order without justification, the remuneration entitlement of S.HE Business will remain unaffected, less any savings in expenditure and/or possible gains from alternative uses of the work product to date or the capacities reserved for the Customer.
- Cash outlay and extraordinary costs incurred by S.HE Business on the explicit request of the Customer will be billed at cost. This specifically includes extraordinary communication, shipping and reproduction costs.
- The ownership of work products created by S.HE Business will be transferred to the Customer only after payment in full of the agreed remuneration. The Customer is not entitled to a disclosure of the source code, raw files or work files.
- Unless agreed otherwise, the contract can be terminated by both parties at any time with future effect. Any services and deliveries provided until that point must be paid in full. The records of S.HE Business (specifically time sheets) will serve as the basis for calculation.
- The right to extraordinary termination remains unaffected.
6. Usage rights
- The scope of transferred usage rights is determined by the contractual agreements in terms of geography, time and content and/or the purpose of the contract; § 31 Section 5 of the Copyright Act is relevantly applicable.
- The transfer of usage rights to the Customer comes into effect at the time of payment in full of the agreed remuneration.
- Where no separate agreement was made regarding the transfer of usage rights, S.HE Business agrees to assign non-exclusive usage rights to the Customer, limited in time to the term of the contract.
- S.HE Business is entitled to name the Customer for advertising purposes and as a reference within the scope of tender submissions. S.HE Business is entitled to sign the services and deliveries provided within the scope of the contract with its company credentials and/or internet address.
7. Usage fee
- S.HE Business provides a holistic intellectual and creative service that goes beyond mere technical work. Where a Customer utilises S.HE Business services beyond the agreed scope, e.g. outside the agreed territory (geographical scope) and/ or after completion of the agreed term (time scope) and/or in amended, extended or changed form (content scope), then S.HE Business is entitled to charge an additional usage fee for up to three years as follows: 50% of the remuneration originally agreed in the contract during the first year, 25% during the second year and 15% during the third year.
- Suggestions by the Customer or other contributions by the Customer do not impact on the remuneration amount. These actions do not provide a basis for shared copyright.
- The service level agreements (“SLA”) of S.HE Business to be agreed separately shall apply. In so far as no SLA has been agreed, the following applies:
- Service and support will be provided from Monday to Friday between the hours of 9.00 a.m. and 4.00 p.m. This does not apply to public holidays in North Rhine-Westphalia and 24 and 31 December of each year.
- Irrespective of any other contractual agreements, requests submitted outside these times will be deemed as having been received on the following working day.
- Both S.HE Business and the Customer are obliged to maintain secrecy about all data, circumstances and information about the other party that are revealed during fulfilment of the contract and shall ensure that knowledge and information obtained will not be made accessible to third parties.
10. Legal protection, liability and warranty
- The risk associated with whether the activities of S.HE Business are permissible by law is borne by the Customer. S.HE Business is not obliged to verify ideas, suggestions, proposals, concepts or drafts in terms of their legality or whether these infringe upon third-party rights, specifically copyright, image rights or other usage rights, including name and trade mark/brand rights, etc. The same applies to templates, photographs, 6 models or work documentation provided by the Customer. The Customer shall release S.HE Business from any third-party claims to that effect. The same applies to costs for legal representation.
- S.HE Business is liable for intent and gross negligence. S.HE Business shall accept liability for minor negligence only if it breaches an essential contractual obligation (cardinal duty) whose fulfilment enables the proper implementation of the contract in the first place and that the Customer may routinely expect to be complied with, as well as for loss or damage arising from the injury to life, limb and health.
- The above stipulations shall also apply in favour of any agents of S.HE Business. 4. Liability for data losses is limited to the typical costs of data recovery that would have been incurred assuming the regular creation of backup copies in line with the risk involved.
- Where the Customer is a legal entity within the meaning of § 14 of the German Civil Code (BGB), the period of limitation for claims regarding new products or services is one year from the date of risk transfer. This shall not affect the statutory limitation periods for recourse action in accordance with § 478 BGB; the same applies to any intentional or grossly negligent breach of obligation on the part of S.HE Business, where a fault is fraudulently concealed.
- Claims of the Customer for obvious faults are excluded if the Customer does not report the fault within two weeks of receiving the service or delivery.
11. Set-off, right of retention, claim assignment
- Set-off or the assertion of a right of retention is only permissible on the basis of recognised or legally binding counter-claims.
- The Customer is not permitted to assign their claims from the contract with S.HE Business to third parties.
12. Other provisions
- The law of the Federal Republic of Germany applies to all legal relationships between S.HE Business and the Customer to the exclusion of the Convention on Contracts for the International Sale of Goods (CISG).
- Where the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any disputes arising from this contract will be Coesfeld. The same applies if the Customer does not have a general place of jurisdiction in Germany or if their place of residence or customary abode is unknown at the time legal action is filed. This does not affect the parties’ entitlement to appeal to another court of jurisdiction.