Terms and Conditions

General Terms and Conditions of Unitz IT GmbH

1. Applicability of the General Terms and Conditions

1.1 These General Terms and Conditions ("GTC") apply to all business relationships between Unitz IT GmbH (hereinafter also "we" or "us") and clients (hereinafter "Client") who are entrepreneurs (§ 14 BGB), legal entities under public law, or special funds under public law.
1.2 These GTC also apply to all subsequent orders, even if there is no explicit reference to these GTC.
1.3 By placing an order, the Client acknowledges these GTC. Contrary terms and conditions of the Client do not become part of the contract, even if we do not expressly object to them, even in the event of our delivery or performance.

2. Conclusion of Contract

2.1 Our offers are non-binding and subject to change without notice.
2.2 The binding order by the Client is considered a binding offer to conclude a contract. Unless otherwise stated in the order, we are entitled to accept this contract offer within four weeks after its receipt by us.

3. Scope of Services

3.1 The scope of the services to be provided by us is based on the offer and/or the service description underlying the offer.
3.2 The services to be provided by us are services. We only owe the production of a specific work or the achievement of a result if this is expressly agreed upon in text form in the offer or the service description underlying the offer.
3.3 We do not warrant the copyright, design protection, competition, trademark, and/or patentability or registration ability of the delivered ideas, suggestions, proposals, concepts, designs, communication measures, and other services.

4. Client's Obligations to Cooperate / Approvals

4.1 The Client shall provide us with all data and documents necessary for the provision of our services at its own expense and risk. Data and data carriers provided by the Client must be free of viruses, trojans, and other malicious programs; otherwise, the Client is liable to compensate us for any resulting damages.
4.2 The Client must retain backup copies of all data provided to us.
4.3 If the Client fails to take a required action of cooperation, we may set a reasonable deadline for the Client to perform the action, stating that we will terminate the contract if the action is not taken by the deadline. Our compensation claim under § 642 BGB remains unaffected by this. If we request approvals from the Client for components of the service, concepts, design drafts, functional descriptions, or decisions on technical or organizational procedures, the Client must notify us of any objections in text form within one week after the request for approval has been made available. If the Client does not provide specific objections within the deadline, we are entitled to carry out the services as proposed by us. We will inform the Client separately of this.

5. Delivery

5.1 Delivery dates are only binding if expressly confirmed by us in writing.
5.2 Agreed delivery times can only be met if the Client has fulfilled its obligations (e.g., timely payment of an agreed down payment, complete provision of documents to be provided, etc.). In the case of subsequent changes or additions requested by the Client, the delivery time will be extended accordingly. If we fail to meet delivery deadlines, the Client must set a reasonable grace period for us in text form, which begins upon receipt of the grace period setting by us. The Client is only entitled to withdraw from the contract after the grace period has expired without result.
5.3 The Client's right to withdraw from the entire contract due to partial delay or partial impossibility is only permissible if the partial service already provided is demonstrably of no interest to the Client.
5.4 Even in the case of agreed deadlines and dates, we are not responsible for delays in delivery and performance due to force majeure. Force majeure includes, in particular, war, riots, interventions by public authorities, measures within the framework of labor disputes, strikes, or lockouts, raw material or energy shortages, as well as unavoidable operational or transport disruptions such as disruptions in the external data network including house connections to network operators, internet access and/or service providers, power failure, water ingress, or weather conditions affecting transport. This also applies if the above conditions occur with our suppliers or if we are not supplied despite corresponding contracts that would have covered the demand arising from the agreement with the Client. In this case, we are entitled to postpone delivery or performance for the duration of the hindrance plus a reasonable lead time or to withdraw from the contract entirely or partially due to the unfulfilled part.
5.5 We are entitled to partial deliveries and partial performances at any time, provided this is reasonable for the Client.

6. Production Handling, Subcontracted Services

6.1 We are entitled to use third parties as subcontractors to fulfill our contractual obligations.
6.2 To the extent that contracts for third-party services are concluded in our name and on our behalf to fulfill the order, we will pass on the costs to the Client. The Client releases us from all resulting liabilities in the internal relationship.
6.3 For orders placed with third parties on behalf of and for the account of the Client, we assume no liability or responsibility for defects in the work, provided we are not at fault in the selection. In these cases, we act only as intermediaries. If we are the clients of subcontractors ourselves, we hereby assign to the Client all claims to which we are entitled due to defects in the work, damages, and other claims arising from defective, delayed, or non-delivery. The Client is obliged to first attempt to enforce the assigned claims against the subcontractor before taking action against us.

7. Remuneration, Payment, and Default in Payment

7.1 The extent of the remuneration owed is determined by our accepted offer from the Client.
7.2 If remuneration is agreed on a time and material basis, we will invoice monthly based on the time spent.
7.3 The Client bears the travel costs incurred in connection with the provision of the services under this contract. We will agree on the travel costs with the Client in advance. We will invoice these costs monthly, at the end of each month.
7.4 The remuneration owed to us is due within 14 days after invoicing without deduction.
7.5 All prices are net prices and are subject to the respective statutory value-added tax.

8. Acceptance and Deemed Acceptance

8.1 If, exceptionally, we owe a work within the meaning of § 631 BGB (see Section 3.2), the Client is obliged to accept it. In the event of significant deviations from the contracted work, we will rectify these within a reasonable period and submit the work for acceptance again.
8.2 If we notify the Client of the completion of a work performance in text form and the Client does not report any more than insignificant defects within a period of 4 weeks after notification of completion, the work performance is deemed accepted. Acceptance is deemed to have taken place at the latest upon unconditional payment or use of the work.

9. Software Faultlessness

9.1 The configuration of hardware and the specifics of individual interfaces with third parties mean that software does not always function flawlessly. We cannot assume liability for error sources caused by third parties. Therefore, software is considered faultless if it functions on the computer system used by us according to the specifications provided to us by the Client. In the case of software, we guarantee that the software functions correctly according to the order.

10. Defects in Work Performances

10.1 Any occurring defects must be documented by the client in a manner understandable to us and communicated to us in writing and promptly after their discovery.
10.2 We are entitled to remedy the defect within a reasonable period, depending on the severity of the defect, at our discretion, either by rectification or by replacement. The client may demand rectification or replacement within a reasonable period if the other form of remedy is unreasonable for them.
10.3 Defect rectification by us may also be carried out by telephone, in writing, or by electronic instructions to the client.
10.4 If it turns out that a reported defect by the client does not actually exist or is not attributable to the contractual software, we are entitled to charge the client for the expenses incurred with the analysis and other processing, provided it is a defect that the client could have recognized as originating from their sphere.
10.5 The right to withdraw and claim damages instead of the entire performance exists only in the case of significant defects.
10.6 In providing our services, we do not owe the examination of any conflicting third-party rights unless expressly agreed otherwise in written form. Therefore, we do not guarantee the legal, particularly the competition, copyright, design, trademark, and/or patentability and/or usability of the ideas, suggestions, proposals, concepts, designs, communication measures, and other services provided by us. However, we will inform the client of any potential legal risks known to us during the execution of the order.
10.7 Claims for defects in quality and title expire after one year from acceptance. This does not apply in the case of our fraudulent intent or the provision of a guarantee. The statutory limitation period applies to claims for damages by the client based on injury to life, body, or health due to a defect caused by us or based on our intentional or grossly negligent breach of duty.

11. Usage Rights

11.1 The results of our services are protected by copyright. We transfer the rights of use necessary for contractual use in business transactions, in print media, on intranets, or on the Internet.
11.2 The granting of usage and exploitation rights depends on the complete payment of our claims. If we permit or tolerate the client's use of the service(s) before complete payment, and the client defaults on payment, the client undertakes to immediately cease using the service(s) upon our request and to refrain from exploiting them (reproduction, distribution, public accessibility, processing, modification) upon our request.
11.3 If the client does not accept design proposals presented by us, the copyright usage rights to the design proposals remain with us. The same applies to ownership of the respective templates.

12. Liability

We are liable without limitation for injury to body, life, and health as well as for intent and gross negligence. In the event of a breach of essential contractual obligations and impossibility, we are also liable for slight negligence, but limited to the replacement of the foreseeable, typical damage. Otherwise, we are not liable for slight negligence. Essential contractual obligations (cardinal obligations) are those obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the client regularly relies and may rely. Typical, foreseeable damages are those that fall within the protective purpose of the respective violated contractual norm. Excluded from this are claims arising from injury to life, body, or health if we are responsible for the breach of duty and other damages resulting from an intentional or grossly negligent breach of duty by us. The above limitations of liability also apply to our vicarious agents if they are also personally held liable.

To the extent that the client is entitled to claims for damages under this clause 12, these claims expire at the end of the limitation period applicable to claims for defects under clause 10.6. In the event of any claims for damages under the Product Liability Act, the statutory limitation provisions apply.

13. Confidentiality, Data Protection

13.1 The contracting parties undertake to treat confidential information and documents of the other contracting party, which are either obviously to be considered confidential or are designated as such by the other contracting party, as trade secrets. Excluded from this obligation are such confidential information that (i) was already known to the recipient at the time of the conclusion of the contract or subsequently becomes known from a third party without violating confidentiality agreements, legal provisions, or official orders; (ii) are publicly known or become publicly known after the conclusion of the contract, provided this is not based on a breach of this contract; (iii) must be disclosed due to legal obligations or by order of a court or authority. Where permissible and possible, the recipient obliged to disclose shall inform the other party in advance and give it the opportunity to take action against the disclosure.
13.2 Our employees are obliged to maintain confidentiality in accordance with Art. 5 (1) lit. f, 32 (4) GDPR. Otherwise, the client is responsible for compliance with laws and regulations regarding data protection and data security. If and to the extent that the contractual services are supplemented by the processing of personal data, the parties will conclude an additional agreement on processing on behalf.

14. References

The inclusion of a general representation of the assignment as well as the name and logo of the client in our self-presentation on our website is permitted free of charge within the usual representation. The client may at any time request, with reasonable grounds provided, that the representation and/or logo be removed.

15. Retention / Set-off

15.1 The client is only entitled to set-off rights to the extent that their claim has been finally determined or is undisputed. The same applies to the right of retention, the effective exercise of which depends on the fact that the client's counterclaim is based on the same contractual relationship.
15.2 These restrictions do not apply to completion and/or defect remediation costs that the client is entitled to against us.

16. Non-Solicitation

16.1 In carrying out the projects by our employees, we rely on the client not to exploit the knowledge and insights of the employee gained from contract performance by poaching employees from us. Therefore, the client undertakes not to poach employees from us during the term of this contract and for a period of 12 months after termination of this contract.
16.2 In the event of any violation of the obligation under clause 16.1, the client undertakes to pay us a contractual penalty in the amount of the gross monthly salaries received by the poached employee in the last six months before the imposition of the contractual penalty (1/2 gross annual salary). Fixed and variable remuneration components are to be taken into account when calculating the contractual penalty.
16.3 Further claims for damages are not excluded by the agreed contractual penalty; however, the contractual penalty will be credited against the damages claims.
16.4 The provisions of this clause also apply to our freelance employees.

17. Other Provisions

17.1 Should a provision of these terms and conditions be or become invalid, the validity of the remaining provisions shall not be affected.
17.2 The place of performance is Berlin, Germany. The exclusive place of jurisdiction for all disputes arising from contracts with merchants, legal entities under public law, or special public funds to which our General Terms and Conditions apply is the registered office of our company. We are entitled to sue the client at their place of business.
17.3 German law applies exclusively, excluding conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

General Terms and Conditions, last updated April 2024

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