For the "Design&Consult for End Customers" offer, the following terms and conditions apply between
ePages Software GmbH
Pilatuspool 2 20355 Hamburg,
hereafter referred to as the "contractor"
the end customer
hereafter referred to as the "customer"
§ 1 Purpose of Contract
- The contractor develops and markets software for operating online shops. The customer intends to allow the contractor to set up the latter's standard software – which was handed over for use to the customer by the contractor or a third party on account of a separate agreement – and to have the software adapted to its needs, or to engage in consultation concerning this.
- The contractor adapts the software within the framework of a standard set of performance characteristics (Appendix 1) as per the scope of services selected by the customer. Upon the customer's request, the contractor will instruct the customer – against payment – on the operation and use of the existing/adapted/set-up software and, if necessary, provide additional consulting.
§ 2 Completion of Contract
- A customer who sends an order to the contractor by means of Internet, e-mail, telephone, fax or other means of communication is deemed to have submitted a proposal – as stipulated in §§ 145 ff BGB (German Civil Code) – to complete a contract with the contractor. The customer will receive via e-mail a confirmation that the order has been received (order receipt confirmation). This order receipt confirmation does not constitute acceptance of the proposal; instead, it is merely meant to notify the customer that the contractor has received the order.
- The contract with the contractor is effected when the contractor accepts the proposal by means of receiving the order form which has been completed in its entirety and signed by the customer. The customer will receive confirmation of this by means of a second e-mail from the contractor (acceptance confirmation).
§ 3 Scope of Services
- The services which the contractor is to perform, respectively, comprise the services selected upon commissioning and confirmed by the customer via e-mail (acceptance confirmation).
- The customer is responsible for setting up or activating the website on the World Wide Web as well as ensuring that the website can be accessed via the Internet. The contractor is obligated neither to provide storage space for the website (hosting) nor to procure an Internet domain. The providing of access to the Internet is similarly not one of the services which the contractor is obligated to render.
§ 4 Advising the Customer
- The contractor undertakes to extensively advise the customer regarding not only design-related possibilities but also the possible functionalities of the software in the scope of the agreed-to period of advising. During advising, the contractor will take into consideration – on the one hand – which target groups are to be appealed to via the software to be set up, and – on the other hand – which purposes the customer wishes to fulfil, on the whole, by means of the website. The contractor will also educate the customer on the advantages and disadvantages of respective design-related and functional characteristics as well as share general insights which the contractor has gained concerning the habits and needs of online users – with respect to, for instance, loading times and the importance of texts and graphic elements.
- The contractor can be expected neither to have industry-specific knowledge nor to provide legal advice. In particular, the contractor is not obligated to obtain – by means of surveys, studies or other market-research methods – specific insights concerning the habits and user behaviour of people belonging to the shop's target groups.
Section II. Design Services
Provided that the contractor undertakes to set up a shop interface, the provisions in this section shall also apply.
§ 5 Design Phases
- Teamwork-oriented cooperation between the contractor and the customer is necessary as per the following stipulations so that the contractor can adapt the customer's website.
- The contractor will create an initial version (basic design) of the customer's website on the basis of the customer's specifications as regards the scope and the functionality of the website and in consideration of the target groups to which the website shall appeal. This initial version must show the website's structure, contain all key design-related characteristics and exhibit the necessary basic functionalities. Of particular importance among the necessary basic functionalities are the functionality of hyperlinks which link the individual websites and the realisation of a website layout.
- The contractor is not obligated to integrate e-mail windows, banner ads or computer-animated films.
- The contractor undertakes to prepare several alternative suggestions for the graphic design of the shop within the scope of the respective stipulation as per Appendix 1.
- On the basis of the shop's initial version created in cooperation with the customer, the contractor will create a version of the shop which is suitable for use.
§ 6 Customer's Duties to Cooperate
- The customer provides to the contractor content which is to be incorporated in the shop. The customer bears sole responsibility for the creation of content. The contractor is not obligated to check whether the content provided by the customer is suitable for the purposes pursued via the shop. Only in the case of obvious errors is the contractor obligated to alert the customer to such content-related issues.
- Of particular importance concerning content to be provided by the customer are the texts, images and other graphics to be incorporated in the website. Images and other graphics are to be provided to the contractor in JPEG, PNG or GIF format, and a single file must not exceed 400 KB; texts are to be provided as ANSI, .doc or .txt files.
§ 7 Acceptance and Additional Duties to Cooperate
- As soon as the contractor has created an initial version of the shop which satisfies the contractual requirements (§ 3 Paragraph 1 of this contract), the customer must in written form accept the initial version (§ 126 b BGB).
- As soon as the contractor has completed the Internet shop which satisfies the contractual requirements (§ 5 Paragraph 5 of this contract), the customer must in written form accept the completed shop (§ 126 b BGB).
- If the contractor provides to the customer suggestions, initial versions or drafts, test versions or the like, then the customer is – to the extent which is reasonable – to quickly and carefully study the aforementioned. The customer must without delay notify the contractor of any complaints or requests for changes, respectively.
A failure by the customer to comply with its duties to cooperate as stipulated in §§ 6 and 7 of this contract entitle the contractor to exercise a right of retention against the customer, and the contractor's claim for remuneration remains unaffected (§ 9 Paragraph 2 Sentence 2 in conjunction with § 8 Sentence 2).
Section III. Remuneration, Requests for Changes
§ 8 Requests for Changes
The contractor is not obligated to fulfil the customer's requests for changes and additions which concern services that have already been accepted or (in the case of limited-duration advising) executed. This also applies even if the acceptance requirements as per § 7 Paragraphs 1 to 2 of this contract are present – but the customer has not yet expressed acceptance.
§ 9 Remuneration, Payment
- The customer undertakes to pay the specified remuneration to the contractor for every service, respectively, which the contractor was engaged to perform.
- After issuance of a bill, remuneration is generally payable after acceptance confirmation (§ 2 Paragraph II).
- If the contractor – instead of setting up and adapting the software – simply sends documents and advises by telephone, then the amount billed is payable after acceptance confirmation (§ 2 Paragraph II).
Part IV. Warranty and Liability; Termination
§ 10 Warranty and Liability
- For design-related errors regarding a web shop, the customer can hold the contractor liable as per the statutory provisions of the Kaufvertragsrecht [law regarding contracts for buying and selling] (§ 434 ff. BGB).
- The contractor is not responsible for content which the customer provides. In particular, the contractor is not responsible for checking whether content violates a law.
- Should third parties take legal action against the contractor on account of a possible violation of the law regarding the Web shop's content, then the customer undertakes to release the contractor from any liability whatsoever and to reimburse the contractor the costs incurred by the possible infringement of the law.
- In the case of slight negligence, the contractor is liable only regarding the infringement of material contractual obligations (cardinal obligations) and regarding personal injury and as per the Product Liability Act (Produkthaftungsgesetz). Incidentally, the contractor's precontractual, contractual and non-contractual liability is restricted to intent and gross negligence, whereby the limitation of liability also applies in the event that one of the contractor's subcontractors is deemed responsible.
- Warranty claims made by the customer, including contractual claims for damages, are subject to a statute of limitation of one year – provided that the customer is an entrepreneur. With regard to customers who are consumers, the statute of limitation to which the contractor is subject is one year in the case of contractual claims for damages and two years for all other warranty claims.
Part V. Miscellaneous
§ 11 Final Provisions, Place of Jurisdiction, Choice of Law
- German law applies exclusively to this contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
- In addition, the terms and conditions of ePages Software GmbH apply, particularly the independent regulations, and are accessible underwww.epages.com/de/download/tc.htm ; they are additional and subordinate to the stipulations herein.
- All agreements which constitute a change, addition or formulation regarding these contractual terms as well as special assurances and arrangements must be executed in writing as per § 126 b BGB.
Should one or more provisions in these contractual terms be invalid or lose their validity due to a circumstance which arises in future, this will not affect the validity of the remainder of this contract. In lieu of any invalid contractual provision, a regulation shall apply which corresponds as much as possible to that which the parties to this contract would have wanted – provided that they would have addressed the matter in question. The same applies to loopholes in this contract.