Essential details of the business relationship between the Client and Clinch, in particular, but not limited to, a precise description of the services to be provided, the duration and period of performance, the remuneration owed by the Client for the performance of Clinch as well as any specific cooperation obligations of the Clinch, shall be agreed between the Client and Clinch in a written contract to be concluded separately (hereinafter referred to as the "Preparation Contract").
As a rule, the Creation Contract shall be concluded by means of an offer for the provision of Creation Services by Clinch to the Principal and an acceptance of this offer (assignment) by the Principal.
These GTC shall always apply to all offers of Clinch, unless the validity of these GTC is explicitly excluded in the offer.
Agreements of the preparation contract take precedence over the provisions of these GTC.
The client reimburses Clinch for external costs (picture material, editorial material, plugins, software, etc.) plus an agency surcharge of 15% on the respective invoice amounts for handling and pre-financing. Copies of the invoices to Clinch must be enclosed with the settlement of these amounts.
Unless expressly excluded in the contract, Clinch may demand compensation for all incidental costs in connection with the execution of the contract in addition to the remuneration.
The incidental expenses include, but are not limited to, travel expenses (travel/flight and accommodation expenses, meals and other incidental travel expenses). The Clinch is basically responsible for the selection of the means of transport and the place of accommodation, whereby travel expenses in an economically reasonable amount and expenses are to be reimbursed with the maximum tax limits. Rail journeys are generally charged at the Flex price 2nd class incl. seat reservation to the Principal.
Travel times are charged at 50%, on weekends (Saturday and Sunday) at 100% as working time.
Services and additional costs can be invoiced separately.
The remuneration of the services to be rendered by Clinch shall be based on the time spent on the basis of the hours or days worked ("person hours" or "person days") according to the Clinch price list valid at the time of conclusion of the contract, unless the creation contract provides for a fixed price or deviating prices.
A remuneration based on the number of person days worked is based on 8 working hours per person day without breaks. Fractions of a person day or working hours in excess of eight hours per day shall be charged at 1/16 of the price for a person day per half-hour or part thereof.
For working hours outside the period 9:00 - 18:00 hours on working days, the following surcharges are levied on the prices per person day:
Unless otherwise agreed in the creation contract, Clinch is entitled to invoice the services rendered at least every four weeks.
All claims become due upon receipt of the invoice. The statutory value added tax will be added to all prices and shown separately in the invoices.
The Customer shall be in default if Clinch does not receive payment within ten days of the due date, unless otherwise agreed in the creation contract.
The Contracting Parties shall designate to each other contact persons and their alternates who shall be responsible and competent for directing the performance of the contractual relationship on behalf of the Contracting Party designating them. These shall be laid down in the drafting contract.
The parties must inform each other immediately in writing of any changes in the named persons. Until such notification has been received, the aforementioned contact persons and/or their deputies shall be deemed entitled to make and receive declarations within the scope of their previous power of attorney.
The contact persons communicate at regular intervals about progress and obstacles in the execution of the contract in order to be able to intervene in the execution of the contract if necessary.
Dates for the performance of services may only be promised on the part of Clinch by the contact person named in the creation contract and shall be fixed in writing.
Dates, by whose non-compliance a contractual penalty according to § 286 paragraph 2 BGB is delayed without reminder (binding dates), must always be set in writing and explicitly designated as "binding".
Delays in performance due to force majeure (e.g. strike, lockout, official orders, general disturbances of telecommunication etc.), due to circumstances in the Customer's area of responsibility and delays in performance for which Clinch is not responsible shall entitle Clinch to postpone dates by the duration of the hindrance plus a reasonable restart time.
If it has been agreed that Clinch will use an agile development process when creating software, this development process will be actively controlled by a product owner named by the customer. The customer formulates requirements for the software. The parties map these requirements in stories that the customer's product owner formulates in coordination with Clinch and enters in a product backlog that both parties can access and in which the customer can prioritize the tasks. Clinch develops the software in iterations according to the backlog. Until the beginning of each iteration, the customer can request changes at any time, after which changes are only possible after explicit agreement with Clinch.
The customer tests the services of Clinch continuously, also during running iterations. At the latest after completion of an iteration whose completion Clinch notifies the customer of, the customer is obliged to immediately test and release the result of the iteration or to communicate the reasons for a rejection. If the result is rejected, further processing will take place in the next iteration step.
For a period of twelve months, Clinch guarantees that the contractual performance results are free of defects. If the Customer demands subsequent performance (elimination of the defect or delivery of a defect-free item), Clinch may, at its own discretion, eliminate the defect or deliver defect-free performance results.
The enforcement of warranty claims depends on the fact that defects are reported in writing within one week after their first recognition.
Clinch may refuse subsequent performance as long as the Customer has not paid the remuneration owed for the performance results provided, whereby the Customer shall be entitled to retain an appropriate part of the remuneration for the defect.
If the Customer sets Clinch a deadline for subsequent performance, he can only use the unsuccessful expiry of this deadline to withdraw from the contract or claim damages instead of performance if he has informed Clinch at the time of setting the deadline that he does not want to make use of Clinch's performance after the unsuccessful expiry of the deadline. If the Principal has to issue a warning instead of setting a deadline, he shall also inform Clinch here at the same time as the warning that he no longer wishes to make use of Clinch's services after the warning has not been successful.
The Customer may only withdraw due to a breach of duty which does not exist in a defect of the object of sale or the work if Clinch is responsible for this breach of duty.
If the Principal withdraws due to the violation of an obligation which relates to a delimitable service which can be rendered independently of other services to be rendered taking into account the legitimate interests of the Principal, the other services shall not be covered by this withdrawal.
Clinch shall not be liable in cases where the Principal has made changes to the production services provided by Clinch, unless these changes had no influence on the occurrence of the defect.
The Principal shall support Clinch in determining and remedying the defect and shall grant Clinch immediate access to the documents from which the detailed circumstances of the occurrence of the defect arise.
If an alleged defect is not attributable to a warranty obligation of Clinch after appropriate examination, the Customer may be charged with the expenses incurred by Clinch for the verification and rectification of the defect at the respectively valid or agreed remuneration rates.
The term "complete contractual product" within the meaning of this contract is, subject to the following Section 3, the entirety of the performance successes and results delivered by Clinch to the Principal in fulfillment of this contract, consisting in particular of the respective overall concept, corresponding partial concepts, presented ideas and designs as well as their creative and/or (software) technical implementation.
Individual technical and conceptual components of the delivered performance successes and results, in particular computer programs or parts thereof, shall not be included in the contractual overall product if Clinch has already developed or otherwise acquired such technical or conceptual components before, during or on occasion of the performance of the order (hereinafter referred to as "Free Components"). Technical or conceptual components whose exclusive development for the Principal is expressly the subject of the contract are not free components but components of the contractual overall product.
Clinch hereby grants the Principal the following rights of use to the delivered performance successes and results, subject to the provision in Clause 6 below:
In accordance with the statutory provisions and the following provisions, the Principal shall be enabled to commercially or otherwise exploit the entire contractual product together with documentation in its own company in unchanged or modified form to the exclusion of Clinch. With the Customer in accordance with §§ 15 ff. AktG belong to the AG's own company. For this purpose, Clinch grants the Customer the exclusive, irrevocable, temporally and spatially unrestricted right to use the entire contractual product and the related documentation in its own company in any known manner, in particular to use them in its own operations, to reproduce, distribute, present, translate or transmit them via long-distance lines or wirelessly.
Clinch grants the Customer a non-exclusive and non-transferable right to use the free components, which is unlimited in time and space. Clinch shall be entitled to use, exploit and market free components itself or to grant third parties simple rights of use related thereto.
The Customer shall only be entitled, with the consent of Clinch, to grant simple or exclusive rights of use to third parties with regard to individual or all rights granted or to transfer the acquired (rights of use) in whole or in part to third parties.
The Customer shall not be entitled to process or otherwise redesign the entire contractual product and in this context free components together with documentation without the express written consent of Clinch. The Customer may demand from Clinch the surrender of the source code of software components, which are an integral part of the performance successes and results delivered by Clinch to the Customer in performance of this contract, only under the same conditions and to the same extent as the Customer is entitled to decompile such software components pursuant to § 69 UrhG (German Copyright Act) or as far as this is necessary for troubleshooting. The Client may not pass on the source code to third parties without the express written consent of Clinch.
All rights of the Principal pursuant to the above Clauses 3 and 4 shall be subject to the condition precedent (§ 158 para. 1 BGB) that the Principal has paid Clinch in full the remuneration owed under this Agreement for the creation of the contractual complete product. If Clinch delivers the contractual complete product to the Customer beforehand, the Customer shall only be entitled to the rights set forth in subsections 3 lit. a) to B) above until the occurrence of the condition precedent set forth in sentence 1 above, with the proviso that these rights may be revoked by Clinch in writing or in full at any time and without giving reasons from the due date of the remuneration.
If Clinch has used software or software components licensed by third parties, in particular open source software, when creating the performance successes and results delivered to the Principal in fulfillment of this Agreement, Clinch shall grant the Principal only those rights to such software or software components - possibly deviating from the above agreements - which it may grant to the Principal on the basis of the agreement with the third party.
The AG is obliged to perform the following duties of cooperation:
Timely provision of employees, hardware and software, insofar as these cannot be provided by Clinch, as well as other material/information and telecommunication facilities to the extent necessary for the fulfillment of the contract. In this respect, the Customer shall also ensure the necessary rights of use,
Provision of all information about the system environment and the associated interfaces,
Information about the own organization, as far as these are necessary for the project,
Timely provision of test data that is representative of the application in terms of scope, structure and design,
Participation in technical trials, test runs and collection of test data,
Preparation and execution of tests,
Complete and sufficiently precise error messages,
Timely granting of approvals for partial and intermediate services,
Provision of content (texts, images, diagrams, etc.) in the format required by Clinch
Review of the planning, the conception, the technical statements and the quality assurance, if only the AG can provide this due to its particular information situation.
Specific duties to cooperate and a schedule for the performance of the duties to cooperate can be specified in the preparation contract. The Principal shall provide all cooperation services at his own expense.
Clinch will hand over the contractual performance results or parts thereof in a suitable form. The Customer has to confirm the handover in writing.
The Customer is obliged to check the contractual performance results immediately after handover for obvious defects and faults (functional test).
The period within which obvious defects can be notified shall be as follows
For concepts, layouts, designs and similar services 5 working days
For software and similar services 2 weeks
from the date of delivery. The Principal shall record any defects in the contractual performance results found during this period in a defect report, describe them precisely and notify Clinch in writing.
If the Customer does not inform Clinch within the scope of the test of any recognizable disadvantageous deviations of the contractual performance results from the contractually agreed quality of Clinch as provided for in Clause 3, the contractual performance results shall be deemed to have been agreed in accordance with the contract with regard to these unreported deviations.
In the event that the Principal culpably fails to fulfill his obligation to participate in the test or fails to do so in full, the same shall apply with regard to the deviations recognizable in the case of dutiful participation. The Client's obligation to point out detected defects even after the test has been carried out remains unaffected by this.
If the Principal does not notify Clinch of any serious errors (the system cannot be used; the error cannot be circumvented with organizational or other economically justifiable aids) after expiry of the period specified in Clause 3, as provided in Clause 3, he shall be obliged to give written acceptance for the contractual performance results, at the request of Clinch, a form provided by Clinch.
Serious defects notified to Clinch by the Customer in accordance with Clause 3 shall be remedied by Clinch and the test procedure shall be repeated in this respect. All other deviations from the contractually agreed quality reported in accordance with Clause 3 shall be remedied by Clinch within the scope of the warranty.
Clinch is liable for intent and gross negligence. Clinch shall only be liable for slight negligence in the event of breach of an essential contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb or health.
In the event of slight negligence, liability shall be limited to the damage typical of the contract, which could have been reasonably expected at the time of conclusion of the creation contract, as well as to the total value of the order.
Clinch shall not be liable for the loss of data and/or programs insofar as the damage is due to the fact that the Principal has failed to carry out data backups and to ensure that lost data can be restored with reasonable effort.
The above provisions shall also apply to the benefit of Clinch's vicarious agents.
The Principal shall be responsible for third parties who, at the instigation or under the tolerance of the Principal, act on behalf of the Principal in Clinch's field of activity as for vicarious agents. Clinch shall not be liable to the Customer if Clinch is unable to meet its obligations towards the Customer in whole or in part or not on time due to the conduct of one of the aforementioned third parties.
If the AG wants to change its resulting requirements after conclusion of the preparation contract, Clinch will examine whether the desired changes are feasible and reasonable for Clinch within the scope of its operational capacity.
Insofar as the Customer's requests for changes affect the agreements made in the contract, in particular the remuneration and time of performance, Clinch shall be entitled to demand a corresponding adjustment of the contract, even if a fixed price has been agreed for Clinch's services. In this respect, Clinch shall send the Customer an offer for the changed services within a reasonable period of time. The agreed delivery and performance periods shall normally be extended by the calendar days on which Clinch examines change requests of the Customer, prepares change offers or negotiates changes, plus a reasonable restart period.
If the Customer does not accept the offer for the changed services submitted to him by Clinch within a period of one week or if an amicable agreement is not reached within two further weeks within the framework of negotiations on the changes commenced within this period, Clinch may continue the execution of the contract in accordance with the original individual contract.
At the request of Clinch, the Principal shall detail the desired changes up to the degree to which the task is detailed in the individual contract or other parts of the contract.
The assignment of claims is only permissible with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld. The regulation of § 354 a HGB remains unaffected by this.
A right of retention can only be asserted because of counterclaims from the respective contractual relationship.
The contracting parties may only offset claims which have been legally established and are undisputed.
Clinch may name the AG as a reference customer on its website or in other media. Furthermore, Clinch may publicly reproduce or refer to the services provided for demonstration purposes, unless the Customer can assert a conflicting legitimate interest.
The customer acknowledges the legitimate interest of Clinch in the protection of its professional and technical know-how. During the cooperation and for a period of one year thereafter, the Customer undertakes not to entice away any Clinch employees or freelancers engaged in projects of the Customer or to employ or employ them without the consent of Clinch, not even as freelancers. For each case of culpable infringement, the Customer shall pay Clinch a contractual penalty to be determined by Clinch at its reasonable discretion and, in the event of a dispute as to its appropriateness, to be reviewed by the competent court.
Clinch is entitled to name the customer as a reference customer on its website and in other media or marketing documents and to use the customer's company logo or company logo for this purpose within the scope of a revocable, simple right of use. When disseminating, publishing and/or making publicly available the services provided by Clinch for the Customer (e.g. websites, apps or similar), the Customer undertakes to point out in a suitable place that Clinch was active as a service provider for the Customer and to place a corresponding link to the website of Clinch, unless this would be unreasonable for the Customer in individual cases.
Agreements must be set down in writing for verification purposes. Terminations must be made in writing.
If these General Terms and Conditions provide for the written submission of declarations, § 127 BGB (German Civil Code) shall apply.
Should individual provisions of the party agreements be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties shall 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.
The AG's general terms and conditions do not apply.
The law of the Federal Republic of Germany shall apply.
Place of performance and jurisdiction is Hamburg.