Terms & Conditions

Section 1 - Cooperation

(1) The parties cooperate in a spirit of mutual trust and inform each other without undue delay of any deviation from the agreed procedure and of any doubts about the correctness of the other party's approach.

(2) If the client recognises that its own information and requirements are incorrect, incomplete, ambiguous or impracticable, it must notify XICTRON of this and of the consequences apparent to it without undue delay.

(3) The contracting parties name contact persons and their deputies to each other, who manage the performance of the contractual relationship responsibly and competently on behalf of the party naming them.

(4) The parties must notify each other without undue delay of any change in the named persons. Until such notification is received, the previously named contact persons and/or their deputies are deemed authorised to make and receive declarations within the scope of their previous power of representation.

(5) The contact persons consult each other at regular intervals on progress and obstacles in the performance of the contract, so that they can steer the performance of the contract where necessary.

(6) Upon request and against invoicing based on time spent, XICTRON will prepare minutes of the exchange of information between the contact persons and send them to the client. If the client holds a different view, it has the right to have its view included in the minutes. This right must be exercised no later than one week after receipt of the minutes.

Section 2 - Client's obligations to cooperate

(1) The client undertakes to provide all proper and necessary data.

(2) The client supports XICTRON in performing its contractually owed services. This includes in particular the timely provision of information, data material and hardware and software, insofar as the client's cooperation requires this. The client will instruct XICTRON thoroughly regarding the services to be rendered by XICTRON.

(3) The client provides its own employees with the necessary expertise, in the required number, for the performance of the contractual relationship.

(4) If the client has undertaken to procure materials (images, audio, text or similar) for XICTRON in the course of performing the contract, the client must provide them to XICTRON promptly and in a common, directly usable, preferably digital format. If the material provided by the client has to be converted into another format, the client bears the costs incurred for this. The client ensures that XICTRON obtains the rights required to use these materials.

(5) Content created by XICTRON in the course of providing its services is provided as a content template. The legal review of this content for compliance with the applicable legal provisions – in particular the German Act against Unfair Competition (UWG), trademark law, the German Price Indication Ordinance (PAngV) and industry-specific labelling obligations – is the sole responsibility of the client. The client is obliged to review all content created by XICTRON on its own responsibility, or to have it reviewed by competent third parties, and to approve it before it is published.

(6) By approving or publishing the content created by XICTRON, the client assumes sole responsibility for its legal compliance. XICTRON is not liable for warning letters, injunctive claims, fines or other legal consequences resulting from the publication of the content by the client or on its behalf, unless XICTRON caused the infringement intentionally or through gross negligence. Section 12 remains unaffected.

(7) The client performs its acts of cooperation at its own expense.

Section 3 - Involvement of third parties

The client is answerable, as for its own vicarious agents, for third parties who act for it in XICTRON's area of activity at the client's instigation or with its acquiescence. XICTRON is not responsible towards the client if, due to the conduct of one of the aforementioned third parties, XICTRON is unable to fulfil its obligations towards the client in whole or in part, or on time.

Section 4 - Deadlines

(1) On XICTRON's side, deadlines for the provision of services may only be committed to by the contact person.

(2) The contracting parties will set deadlines in writing wherever possible. Deadlines whose non-observance puts a contracting party in default without a reminder pursuant to Section 286 (2) of the German Civil Code (binding deadlines) must always be set in writing and designated as binding.

(3) XICTRON is not responsible for delays in performance due to force majeure (e.g. strikes, lockouts, official orders, general disruptions of telecommunications, etc.) or due to circumstances within the client's area of responsibility (e.g. failure to provide cooperation in time, delays caused by third parties attributable to the client, etc.); such delays entitle XICTRON to postpone the provision of the affected services by the duration of the hindrance plus a reasonable start-up period. XICTRON will notify the client of delays in performance due to force majeure.

Section 5 - Scope of services / changes

(1) The scope of services results from the valid order confirmation.

(2) If the client wishes to change the contractually defined scope of the services to be rendered by XICTRON, it will communicate this change request to XICTRON in writing. The further procedure is governed by the following provisions. For change requests that can be reviewed quickly and are expected to be implemented within 8 working hours, XICTRON may dispense with the procedure under paragraphs 3 to 6.

(3) XICTRON reviews what effects the requested change will have, in particular with regard to remuneration, additional effort and deadlines. If XICTRON recognises as a result of the review that services to be rendered cannot be performed or can only be performed with a delay, XICTRON will inform the client of this and point out that the change request can only continue to be reviewed if the affected services are postponed for an initially indefinite period. If the client declares its consent to this postponement, XICTRON carries out the review of the change request. The client is entitled to withdraw its change request at any time; the change procedure initiated then ends.

(4) After reviewing the change request, XICTRON will explain to the client the effects of the change request on the agreements made. The explanation contains either a detailed proposal for implementing the change request or information on why the change request cannot be implemented.

(5) The contracting parties will agree on the content of a proposal for implementing the change request without undue delay and will attach the result of a successful agreement, as a supplementary agreement, to the text of the agreement to which the change relates.

(6) If no agreement is reached or the change procedure ends for any other reason, the original scope of services remains in force. The same applies if the client does not agree to a postponement of the services for the further performance of the review under paragraph 3.

(7) The deadlines affected by the change procedure are postponed as necessary, taking into account the duration of the review, the duration of the agreement on the change proposal and, where applicable, the duration of the changes to be implemented, plus a reasonable start-up period. XICTRON will inform the client of the new deadlines.

(8) The client bears the effort caused by the change request. This includes in particular the review of the change request, the preparation of a change proposal and any downtime. If the parties have agreed on daily rates, the effort is charged according to these rates, otherwise according to XICTRON's usual remuneration.

(9) XICTRON is entitled to change or deviate from the services to be rendered under the contract if the change or deviation is reasonable for the client, taking into account XICTRON's interests.

Section 6 - Remuneration

(1) For contracts billed by time spent, the remuneration is paid immediately after the service has been rendered; for orders billed at a flat rate, it is paid in advance. Deviating payment terms require XICTRON's written confirmation of the change. The client receives a written invoice for each payment transaction.

(2) Unless otherwise agreed, XICTRON is remunerated on the basis of time spent. The remuneration for time spent is based on XICTRON's remuneration rates applicable at the time, unless otherwise agreed. XICTRON is entitled to change or supplement the remuneration rates on which the agreements are based at its reasonable discretion (Section 315 of the German Civil Code). Cost estimates or budget plans prepared by XICTRON are non-binding.

(3) Against proof, the client bears all expenses such as travel and accommodation costs, incidental expenses and third-party fees incurred in the course of performing the contract. Travel costs are only reimbursed if the journey from XICTRON's registered office is more than 50 km. Pure travel time is not remunerated. XICTRON may charge a handling fee for processing orders with third parties whose costs are passed on directly to the client.

(4) If the parties have not agreed on remuneration for a service by XICTRON which, under the circumstances, the client could only expect to receive against remuneration, the client must pay the usual remuneration for this service. In case of doubt, the remuneration rates charged by XICTRON for its services are deemed to be usual.

(5) All contractually agreed remuneration is stated net, plus statutory VAT.

Section 7 - Withdrawal

The client may only withdraw from the contract because of a breach of duty that does not consist in a defect of the purchased item or of the work if XICTRON is responsible for this breach of duty.

Section 8 - Termination

(1) For contracts with a fixed term, the client and XICTRON may terminate the contractual relationship without stating reasons with two months' notice before the end of the term. If the contract with XICTRON is not terminated in due time, the term is automatically extended by one year.

(2) Termination must be in writing to be effective.

Section 9 - Warranty

(1) XICTRON warrants that the product essentially corresponds to the specifications of the design and to the conceptual specifications.

(2) No liability is assumed for deviations arising from technical conditions and non-uniform standards, since the display may differ between output media. Such deviations may arise in particular from the screen resolution, monitor size or colour settings of the respective output device. To this extent, the documents on which the concept is based are only approximately authoritative.

(3) If the product deviates from the concept, though not significantly, and this deviation is moreover not based on technical conditions, XICTRON has the right to rectify it. Only if the attempt at rectification fails does the client have the right to reduce the price or to rescind the contract.

(4) XICTRON gives no warranty that particular successes or results can be achieved by using the product.

(5) The following in particular, but not exclusively, are deemed to constitute acceptance of the product: putting it into productive use (e.g. going live), the client's approval to go live, the absence of a written notice of defects within 14 calendar days after provision for review or on a test system, and full payment without reservation regarding defects. Acceptance may also result from other conduct of the client if, under the circumstances, this conduct allows the conclusion that the client accepts the product as being in conformity with the contract.

(6) The warranty period is one year from acceptance.

Section 10 - Rights

(1) All copyrights, rights of use and other intellectual property rights in the services rendered by XICTRON – in particular in source code, scripts, databases, designs, layouts, concepts, texts and graphics – remain with XICTRON until all claims arising from the business relationship have been paid in full. Even after full payment, only a simple, non-transferable and non-sublicensable right of use is granted. If software is the subject of the services, Sections 69d and 69e of the German Copyright Act (UrhG) apply in addition.

(2) The client is entitled to use the services rendered exclusively within the scope of the contractually defined purpose. Any use, editing, translation, reproduction, publication or disclosure to third parties beyond this – in whole or in part – is not permitted without XICTRON's express written consent.

(3) The right to use the services rendered exists only as long as the client meets its payment obligations. For one-off services, the right of use is only granted on a revocable basis until full payment. For ongoing contractual relationships (continuing services), the right of use continues as long as the payments due are made and the contractual relationship has not ended. After full payment for a completed service, the right of use becomes irrevocable unless otherwise agreed in the contract. If the client defaults on payments or if insolvency proceedings are opened over its assets, the right of use expires automatically. In this case, the client is obliged to cease all use without undue delay and to delete all copies, installations or other reproductions of the services or to surrender them to XICTRON.

(4) If there are open, due or reminded claims against the client – including those from an associated order confirmation that are to be settled by recurring invoice or later invoicing – XICTRON is entitled to refuse access to programming, hosting or other technical services until these claims have been settled in full. This refusal of access does not constitute a right of withdrawal but is made in exercise of the contractual and statutory right of retention (Sections 273, 320 of the German Civil Code). Upon full payment, access will be restored without undue delay.

(5) If the client violates the provisions of this section, the granted right of use expires with immediate effect. XICTRON reserves the right to assert claims for damages and to take legal action for injunctive relief.

Section 11 - Infringement of intellectual property rights

(1) XICTRON indemnifies the client at its own expense against all third-party claims arising from infringements of intellectual property rights (patents, licences and other intellectual property rights). The client will inform XICTRON without undue delay of the claims asserted by third parties. If the client does not inform XICTRON of the asserted claims without undue delay, the claim to indemnification lapses.

(2) In the event of infringements of intellectual property rights, XICTRON may – without prejudice to any claims for damages by the client – at its own choice and expense and after prior consultation with the client, either make changes to the affected service which, while safeguarding the client's interests, ensure that an infringement no longer exists, or acquire the necessary rights of use for the client.

(3) If this subsequent performance is impossible for the contractor or only possible on disproportionate terms, the contractor has the right to take back the affected services against reimbursement of the remuneration paid. The contractor must grant the client a reasonable phase-out period, unless this is only possible on unreasonable legal or other terms.

(4) Insofar as the client is itself responsible for the infringement, claims against the contractor are excluded.

Section 12 - Liability

(1) XICTRON is liable for intent and gross negligence. For slight negligence, XICTRON is only liable in the event of a breach of an essential contractual obligation (cardinal obligation) and for damage resulting from injury to life, body or health.

(2) In the case of slight negligence, liability is limited in amount to the foreseeable damage that must typically be expected to occur. In any case, liability is limited to the damage typically foreseeable at the time the contract was concluded.

(3) XICTRON is not liable for the loss of data and/or programs insofar as the damage is due to the client having failed to carry out data backups and thereby to ensure that lost data can be restored with reasonable effort.

(4) For content approved or published by the client within the meaning of Section 2 (5) and (6), any liability of XICTRON – with the exception of intent and gross negligence – is excluded. The indemnification obligation under Section 11 (1) does not extend to third-party claims based on content approved by the client or published under its own responsibility.

(5) The above provisions also apply in favour of XICTRON's vicarious agents.

Section 13 - Conciliation

(1) In the event of any disagreement arising from or in connection with this contractual relationship, the parties will first try to reach a solution through a thorough discussion between the contact persons.

(2) Disagreements that the parties cannot resolve are to be settled through a conciliation procedure. If a party refuses to take part in a conciliation procedure, it may take recourse to the ordinary courts if it has notified the other party of this in writing beforehand.

(3) To enable conciliation, the parties mutually waive the defence of limitation for all claims arising from the disputed facts from the application for conciliation until one month after the end of the conciliation procedure. The waiver suspends the limitation period.

(4) The deadlines affected by the conciliation procedure, including the preceding discussion between the contact persons, are postponed as necessary, taking into account the duration of the conciliation and, where applicable, the duration of implementing its results, plus a reasonable start-up period.

Section 14 - Confidentiality

(1) Documents handed over to the other contracting party and knowledge and experience communicated to it may only be used for the purposes of this contract and may not be made accessible to third parties, unless they are by their nature intended to be made accessible to third parties or are already known to the third party. Auxiliary persons engaged to perform the contractual relationship, such as freelancers, subcontractors, etc., are not third parties.

(2) In addition, the contracting parties agree to maintain confidentiality regarding the content of this contract and the knowledge gained in its performance.

(3) The confidentiality obligation continues to apply after the end of the contractual relationship.

(4) If a contracting party so requests, the documents it has handed over, such as strategy papers, briefing documents, etc., must be returned to it after the end of the contractual relationship, unless the other contracting party can assert a legitimate interest in these documents.

Section 15 - Miscellaneous

(1) The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent may not be unreasonably withheld. Section 354a of the German Commercial Code (HGB) remains unaffected.

(2) A right of retention may only be asserted on account of counterclaims arising from the respective contractual relationship.

(3) The contracting parties may only set off claims that have been finally established by a court or are undisputed.

(4) XICTRON is entitled to name the client as a reference customer on its own websites or in other media. XICTRON may also publicly present the services rendered for demonstration purposes or refer to them, unless the client can assert a legitimate interest to the contrary.

(5) XICTRON is entitled to mention its name and/or logo on the pages it has created. Furthermore, XICTRON may place a link to its own pages on the client's pages.

(6) All offers and prices of XICTRON are non-binding and subject to change, unless they have been declared binding in writing. Furthermore, all texts, information, prices, etc. in the customer information are subject to change and errors. Unless otherwise stated, all prices are in euros excluding VAT.

(7) XICTRON is entitled to commission third-party service providers to provide parts or the entire range of services.

(8) XICTRON is entitled to use or change the infrastructures, technologies, systems, procedures or standards used and the service providers and vicarious agents commissioned with performance at any time without separate notice, provided this does not result in any disadvantage for the client.

Section 16 - Final provisions

(1) All amendments and additions to contractual agreements must be recorded in writing for purposes of proof. Notifications that must be made in writing may also be made by e-mail.

(2) The law of the Federal Republic of Germany applies, excluding private international law and the UN Convention on Contracts for the International Sale of Goods.

(3) The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is XICTRON's registered office.

(4) The client's general terms and conditions do not become part of the contract.

(5) Should individual provisions of the parties' agreements be or become invalid in whole or in part, this does not affect the validity of the remaining provisions. In this case, the parties will replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.

(6) These terms are available in a German and an English version. The German version is authoritative; the English version is provided for information only.