Version: May 2025
These Terms and Conditions (hereinafter referred to as “T&C”) govern the contractual relationship (hereinafter referred to as “Contract”) between entrepreneurboat / Bartolomaeus Kukla, Kämergasse 27, 52349 Düren, Germany (hereinafter referred to as “Contractor”) and the Contractor’s contractual partner (hereinafter referred to as “Client”), in particular with regard to all contractual services of the Contractor (hereinafter referred to as “Services”).
Contents
1. Scope of application
1.1. These T&C apply to businesses in accordance with § 14 BGB (Bürgerliches Gesetzbuch – German Civil Code). Contracts with consumers according to § 13 BGB are excluded.
1.2. These T&C apply to all contracts between the Client and the Contractor.
1.3. The validity of terms and conditions of the Client or third parties is expressly excluded, even if the Contractor has not expressly objected to them.
1.4. Individual agreements in the Contract shall always take precedence over these T&C insofar as these individual agreements contradict or deviate from the provisions of these T&C.
1.5. These T&C shall also apply to future contracts without the need for a separate reference to these T&C in individual cases.
1.6. The version of the T&C valid at the time the Contract is concluded shall apply.
2. Subject matter of the Contract and conclusion of the Contract
2.1. The type of contract, the subject matter of the Contract, and the components of the Contract can be found in the Contract.
2.2. Offers made by the Contractor, in particular cost estimates, are subject to change and are non-binding. They are not to be regarded as a binding offer in accordance with § 145 BGB.
2.3. The Contractor shall be entitled to accept the Client’s order (offer pursuant to § 145 BGB) within two weeks of its receipt.
2.4. The Contract is concluded when the Contractor accepts the Client’s order.
2.5. The Client’s order shall only be deemed to have been accepted if it has been confirmed by the Contractor in writing or if the Contractor has received the order within the period specified in Section 2.3 with the provision of the Service in accordance with the Client’s order.
2.6. The Contract is subject to correct and timely delivery by the Contractor’s suppliers if the Contractor is not responsible for the non-delivery. If the Service is not available, the Client shall be informed immediately, and the compensation received shall be refunded.
2.7. The Contractor shall also be entitled to refuse orders from the Client, in particular those that have not been contractually agreed upon, without stating reasons. The Contractor must inform the Client of this immediately.
3. Contract duration and termination
3.1. The start and end of the Contract are agreed in the Contract.
3.2. Each party to the Contract is entitled to terminate Contracts that run for an indefinite period of time, with a notice period of six weeks to the end of the period of service. The period of service typically aligns with the billing period.
3.3. For contracts with a fixed term, the term is automatically renewed by the agreed fixed term if the Contract is not terminated in due time. The notice period corresponds to that for contracts that run for an indefinite time period.
3.4. Termination by the Client due to the claim of a satisfaction guarantee (“money-back guarantee”) agreed in the Contract is subject to the contractual agreements. In this case, the Client does not acquire any rights to the work performed by the Contractor or provided to the Client and may not use this or parts of it for any purpose.
3.5. The right of the Contracting Parties to terminate the Contract without notice for good cause remains unaffected, in particular if the Client is in arrears with a due payment and fails to make payment after expiry of a reasonable grace period, or if the Client becomes insolvent or insolvent after conclusion of the Contract, unless an application for the opening of insolvency proceedings has already been filed.
3.6. Terminations must be in writing to be effective.
4. Scope of Services, prevention of Services, changes, and modalities
4.1. The type, content, and scope of the respective Services are set out in the Contract or the respective service description on which the Contract is based.
4.2. If the Contractor is actually unable to provide the Services or part of the Services, the Contractor must inform the Client immediately.
4.3. If the provision of the Services is not technically possible, in particular because software or software-based services of the Client or third parties do not allow the provision of the Services, the Contracting Parties shall have no performance or compensation obligations. In particular, the Contractor is not obliged to implement missing functions in the software or in software-based services of the Client or third parties if this is not expressly part of the Service agreement.
4.4. The Contractor shall be obliged to take account of the Client’s requests for changes insofar as this is reasonable within the scope of the Contractor’s operational capacities, in particular with regard to costs and scheduling.
4.5. Insofar as the examination of the change options or the realization of the desired changes affect the terms of the Contract, in particular the Contractor’s costs or the schedule, the Contracting Parties shall agree on an appropriate adjustment of the terms of the Contract, in particular an adjustment of the compensation as well as the milestones and the schedule. Unless otherwise agreed, the Contractor shall in this case carry out the work without taking the change requests into account until the Contract is adjusted.
4.6. If a comprehensive examination of the additional costs is necessary, the Contractor may request a separate commission for this.
4.7. Amendments and additions to the Contract, in particular to the agreed Services, require an agreement between the Contracting Parties to be effective, which must be confirmed by the Contractor and the Client in writing.
4.8. The schedules specified by the Contractor, in particular the project completion date, the overall project duration, and the milestones with their completion dates and durations, are estimates and non-binding. The estimate is based on an assessment of the effort involved in the provision of the Services by the Contractor at the time the Contract is concluded, carried out to the best of the Contractor’s knowledge.
4.9. The Contractor shall determine the Contractor’s place of work and working hours on the Contractor’s own responsibility, unless the Contracting Parties agree otherwise.
4.10. The Contractor shall provide the agreed Services as an independent contractor. In doing so, the Contractor shall not be subject to the Client’s authority to issue instructions. Nevertheless, the Contractor shall take the Client’s interests into account, in particular if the provision of the Services depends significantly on the Client’s cooperation. An employment relationship is not established.
4.11. The Contractor is entitled to use qualified third parties (employees or subcontractors) to perform the Services. In any case, the Contractor shall remain responsible for the agreed Services. The Contractor shall impose the same obligations on third parties as apply to the Contractor, in particular with regard to data protection and confidentiality.
5. Compensation
5.1. The type and amount of compensation for the agreed Services are set out in the Contract or the respective valid price list on which the Contract is based. The compensation amounts are net amounts, excluding statutory VAT (value-added tax).
5.2. The invoice shall be issued plus VAT at the statutory rate, unless the reverse charge procedure applies, in which case VAT must be declared and paid by the recipient of the Service.
5.3. In the case of contracts in which time-based compensation (e.g., hourly or daily rates) is agreed, the costs stated in the Contract are estimates and are non-binding. The estimate is based on an assessment of the effort involved in the provision of the Services by the Contractor at the time the Contract is concluded, carried out to the best of the Contractor’s knowledge.
6. Reimbursement of expenses
6.1. The Client is obliged to reimburse the Contractor in full for the necessary expenses incurred in connection with the Contractor’s activities. The Contracting Parties shall agree on more detailed provisions on the reimbursement of expenses, in particular the list of items eligible for reimbursement, in the Contract.
6.2. If the reimbursement of expenses is not contractually regulated, all expenses of the Contractor required for the provision of agreed Services and approved by the Client shall be reimbursed by the Client to the Contractor in full, including the applicable VAT.
7. Terms of payment
7.1. Payment amounts due must be transferred in full (without deduction) and on time to the Contractor’s specified account, stating the Contract or invoice reference, or made electronically if the Client uses the payment links of payment service providers (e.g., “Stripe”) provided by the Contractor for this purpose.
7.2. Discounts are not granted and will be charged in any case if no explicit arrangement has been made in this regard.
7.3. The amount and due date of payments of compensation and reimbursement of expenses already incurred and proven are set out in the Contract.
If no agreement in this regard has been made, the amount of the payment owed shall correspond to the amount of the contractual compensation, as well as the reimbursement for expenses already incurred and proven, and payment shall be due seven days after invoicing.
In the case of continuing obligations, in particular contracts for recurring services, the compensation for the respective corresponding service period shall be paid in advance.
If the reimbursement of expenses is not contractually regulated, the reimbursement of the expenses shall be due no later than seven days after the Contractor has claimed the respective expenses from the Client.
7.4. If the invoice amount has not been received within 30 days of the invoice date, the Contractor shall be entitled to charge interest on arrears. Interest on arrears shall be charged at the statutory rate. The right to assert further claims for damage remains unaffected.
7.5. The Contractor shall be entitled to invoice partial Services.
7.6. The Contractor is entitled to demand payment of an advance from the Client, which is agreed in the Contract, after conclusion of the Contract.
7.7. If an advance payment has been agreed, the Contractor shall not be obliged to commence the contractual activities before receipt of the advance payment. The Client shall be solely liable for the effects of any delay caused by failure to pay the advance on time, in particular for any effects on agreed deadlines. The agreed advance is due after the Contract comes into effect.
7.8. The advance paid will be offset against invoices due.
7.9. If the Client has effectively claimed a contractually agreed satisfaction guarantee (“money-back guarantee”) in accordance with the contractual conditions, he is entitled to a refund of the compensation payments made to the Contractor up to the time of the claim. Legal claims for surrender remain unaffected.
7.10. Several Clients are jointly and severally liable.
7.11. The Client expressly agrees that the Contractor is entitled to send or make available invoices to the Client in electronic form.
8. Obligations of the Client to cooperate
8.1. The Client shall ensure that the Contractor is provided with all the documents required for the performance of the Contractor’s contractual activities in a timely manner, that the Contractor is provided with all the information, and that the Contractor is informed of all processes and circumstances. This also applies to documents, information, processes, and circumstances that only become known during the Contractor’s activities.
8.2. At the Contractor’s request, the Client shall confirm the accuracy and completeness of the documents and data submitted by the Client, as well as the Client’s information and verbal statements, in writing.
8.3. In particular, the Client shall ensure that the software or software-based services of third parties, including access and access data, are available to the Contractor (in particular online) in an updated version and to the extent necessary, insofar as these are required for the contractual provision of Services by the Contractor. If required by the respective manufacturers or service providers, the Client must familiarize himself/herself with the terms of use of this software or software-based services and accept them. The Contractor shall only act as a vicarious agent in this respect.
9. Acceptance and release
9.1. The Client is obliged to accept the work product if the Contractor owes the Client a specific work product and the work product is free of defects.
9.2. Acceptance shall be deemed to have taken place if it is not declared or refused within 14 days of the work product being made available for acceptance, provided that the work product essentially complies with the contractual agreements. Design and artistic reasons do not entitle the customer to refuse acceptance.
9.3. If there are significant deviations from the contractual agreement, the defects identified shall be documented by the Client and reported to the Contractor in writing immediately. The Contractor shall rectify these defects within a reasonable period of time and resubmit the work product to the Client for acceptance.
9.4. Acceptance shall be deemed to have taken place at the latest upon payment or use of the work product, which is not exclusively for the purpose of acceptance testing.
9.5. Partial acceptance of Service components is possible.
9.6. The Contractor is entitled to demand approvals from the Client, even if this has not been expressly agreed beforehand.
9.7. Approvals refer to high-level or detailed concepts of any kind that do not constitute work products but are necessary to implement agreed Services or partial Services and/or are based on the Client’s requirements.
9.8. By granting approval, the Client declares that the concept submitted is to be used by the Contractor to implement the agreed Services or partial Services on its basis.
9.9. The Client is obliged to declare approval within three working days of the concept being made available, including previous work products and the request for approval by the Contractor. In order to meet the agreed deadlines, the Client must start checking the approval immediately from the time of notification of readiness for approval and declare approval as soon as possible.
9.10. If the Client refuses approval, it depends on the agreed Services whether a revision of the concept is necessary or whether this is a change request that must be compensated. If the revised concept deviates substantially from the original concept or if the revised concept does not substantially contradict the Client’s original requirements, at least in part, the revision shall not be considered part of the agreed Services, and the Client shall be compensated accordingly.
10. Defects, warranty, and troubleshooting
10.1. If the Contractor owes the Client a specific work product, and if a defect occurs in the Services provided, the Contractor shall, in the first instance, provide supplementary performance. In this case, the Contractor shall have the choice of remedying the defect at the Contractor’s own discretion, for example by showing the Client reasonable measures to avoid the effects of the defect or by providing a new, defect-free Service. Deviations that only insignificantly impair the Services shall not be deemed a defect.
10.2. The Contractor may make subsequent performance dependent on the Client having paid at least a reasonable part of the agreed compensation.
10.3. Unsuccessful subsequent performance shall entitle the Client to set the Contractor a reasonable grace period to remedy the defect. In doing so, the Client must expressly point out in writing that the Client reserves the right to withdraw from the Contract and/or demand compensation in the event that subsequent performance fails again.
10.4. If the supplementary performance is not successful even within the grace period set, the Client has the right to withdraw from the Contract or to reduce the compensation, provided the defect is not insignificant.
10.5. The Client shall have no claims for defects if defects arise due to faulty materials, tools, or information provided by the Client or deviations from the specifications provided with regard to the Client’s materials, tools, or information. Furthermore, there shall be no claims for defects if the Client or third parties modify the work products provided, unless the Client can prove that such changes do not make the Contractor’s processing effort significantly more difficult and that the defect already existed when the work products were handed over.
10.6. Liability for warranty claims is limited to twelve months from delivery of the work product.
10.7. The Contracting Parties agree that a ticket system can be used as a priority both in the context of services and in the context of error reporting and collection.
10.8. If necessary, in particular for maintenance services, the Contractor is authorized to monitor, deactivate, or activate processes of systems with external interfaces (operated as software or software-based services) of the Client.
11. Liability
11.1. The Contractor shall be liable without limitation for damages resulting from injury to life, body, or health, for intent and gross negligence, for the existence of expressly warranted characteristics, and for slight negligence with regard to essential contractual obligations, including with regard to vicarious agents. All other liability is excluded. This also applies to loss of data and other consequential damage, in particular due to loss of profit or loss of production. Liability is also excluded insofar as the Client has insurance cover.
11.2. Liability is also excluded for direct or indirect consequences of a breach of the Client’s duty to cooperate, e.g., if the information or materials, or tools provided by the Client to the Contractor were not provided or were not provided correctly and had an impact on the provision of the Services.
11.3. If the subject matter of the Contract includes or requires the use of software or software-based services of third parties by the Client, the Contractor excludes any liability, in particular for security risks, legal provisions, functional limitations and other defects that are directly related to this software or these software-based services of third parties.
11.4. In the event of unforeseeable unavailability of the software or software-based services of third parties required for the fulfillment of the Contract, the Contractor shall assume no liability. If the agreed activities and contractual objectives cannot be achieved in another way that is comparable in terms of effort and costs, the Client shall be informed immediately.
11.5. The Contractor shall not be liable for the improper use or implementation by the Client of the recommendations contained in the services or documents prepared.
11.6. Furthermore, the Contractor shall not be liable for the occurrence of certain successes or changes due to the Services provided under the Contract.
11.7. Claims under the ProdHaftG (Produkthaftungsgesetz – German Product Liability Act) remain unaffected.
12. Force majeure
12.1. Insofar as the persons intended to provide the Services are unforeseeably absent (e.g., due to illness) when individual tasks are being defined, the Contractor shall be entitled to postpone the fulfillment of their obligations for the duration of the prevention and for a reasonable start-up period.
12.2. Events of force majeure that make performance significantly more difficult or temporarily impossible shall entitle the respective Contracting Party to postpone the performance of the Contractor Party’s Services by the duration of the hindrance and a reasonable start-up period. Labor disputes and similar circumstances shall be deemed equivalent to force majeure insofar as they are unforeseeable, serious, and not caused by fault.
12.3. The Contracting Parties shall inform each other immediately of the occurrence of such circumstances.
13. Indemnification, property rights, and rights of use
13.1. If the Client provides the Contractor with protectable content as part of the contractual activities, the Client grants the Contractor the right to use this content to the extent necessary for the fulfillment of the Contract.
13.2. The Client expressly assures the Contractor that the Client is authorized to transfer the agreed rights of use.
13.3. The Client shall support the Contractor in the defense against claims asserted by third parties against the Contractor due to infringements of property rights to the contractual content, in particular by providing the information required for defense.
13.4. The Client is obliged to reimburse the Contractor for all necessary expenses incurred by the Contractor as a result of claims asserted by third parties in accordance with Sections 13.1 to 13.3.
13.5. Insofar as work products are copyrightable, the Contractor shall remain the author. In this respect, the Client shall be entitled to a free, non-exclusive right of use that is limited to contractually defined purposes and can only be transferred to third parties with the Contractor’s consent. Consent must be given in writing.
13.6. The Client’s right to modify the work product is subject to the Contractor’s consent, unless the modification is necessary to remedy defects following failed attempts at subsequent performance by the Contractor, or the Contracting Parties have reached another agreement. Consent must be given in writing.
13.7. In particular, the Client shall not acquire ownership of drafts, raw data, source codes, or work products rejected by the Client and shall have no claim to their transfer by the Contractor, unless otherwise agreed.
13.8. The Client shall be entitled to a free, exclusive, and otherwise unlimited right of use for certain work products, insofar as this has been expressly agreed in the Contract.
13.9. If the subject of a Service is the delivery or provision of software or access to software-based services of third parties, the Client is obliged to inform himself/herself about the license terms of the respective manufacturer or service provider and to observe them, as well as to make data protection agreements for the processing of personal data, insofar as this is necessary.
13.10. The Client shall only be entitled to use the Contractor’s work products within the agreed scope after full and unconditional payment of the agreed compensation.
13.11. All rights to the work products beyond those expressly granted in the Contract, whether copyrights, industrial property rights, or other rights, shall belong exclusively to the Contractor.
14. Data protection
14.1. If personal data is processed for the Client, the Contractor is obliged to provide sufficient guarantees that appropriate technical and organizational measures are implemented in such a way that the processing is carried out in accordance with the requirements of the GDPR (European Union General Data Protection Regulation) and ensures the protection of the rights of the data subject.
14.2. The Contractor is obliged to process personal data entrusted to the Contractor only within the scope of the Contractor’s activities in connection with the Contract or to have it processed within the scope of an order. The data must be deleted immediately after termination of the Contract.
14.3. In the case of commissioned processing of personal data by third parties, the Contractor must impose the same obligations on the subcontractor accordingly.
15. Confidentiality, retention, and return of documents
15.1. The Contracting Parties are obliged to maintain secrecy about all confidential information that becomes known to them in connection with the contractual relationship, regardless of whether this concerns the Contracting Parties themselves or their business relations, unless the Contracting Parties have reached an agreement in writing regarding the release from this confidentiality obligation.
15.2. Information is not confidential if it is publicly known, is generally known to third parties without this being due to an act or omission of the Contractor or the Client, was lawfully disclosed under this Contract, was already known to the Contracting Parties without breach of confidentiality obligations of third parties before it was received from the other Contracting Party, or if it was independently developed by the other Contracting Party without using confidential information of other persons.
15.3. The Contracting Parties undertake to properly store all business and operating documents made available to them, in both digital and physical form, and in particular to ensure that third parties cannot gain access to them. The documents provided shall be returned to the Contractual Partner upon request during the term of the Contract and without being asked after the Contract has ended.
16. References
16.1. The Client agrees that the Client may be named by the Contractor as a “customer reference” by means of reference materials in an appropriate and customary manner without time limit and without restriction.
16.2. Reference materials include, but are not limited to, case studies, press releases, and publications of the Contractor, both online and in printed form. In particular, they may contain the name or business name of the Client as well as the Client’s logo. The confidentiality obligations pursuant to Section 15 remain unaffected.
16.3. The Client may revoke this consent at any time in writing.
17. Other provisions
17.1. The Contractor is advised that the Contractor is responsible for the payment of taxes or social security contributions, insofar as this is required by law.
17.2. Persons employed by or working on behalf of the Contractor to perform the contractual Services may not be employed by the Client either on a temporary basis or as permanent employees, commissioned as subcontractors, or placed with third parties during or for twelve months after termination of the Contract. A contractual penalty of EUR 12000 per person is agreed for each individual breach. Further claims for damage remain unaffected.
17.3. The Contractor shall also be free to work for other Clients. Restrictions due to a non-competition clause shall not apply unless the contracting parties expressly agree to such a clause. The obligations of confidentiality pursuant to Section 15 shall remain unaffected.
17.4. All information in contracts concluded between the Client and the Contractor is confidential to the Contracting Parties and shall not be disclosed to third parties. It may not be reproduced in whole or in part, nor may any of the information contained therein be disclosed without the prior consent of both Contracting Parties in writing.
17.5. Amendments or additions to these T&C require an agreement between the Contracting Parties to be effective, which must be confirmed by the Contractor and the Client in writing. This also applies to the amendment or rescission of this provision. Verbal collateral agreements expressly do not exist.
17.6. If individual provisions of these T&C are or become invalid or contain a loophole, this shall not affect the validity of the remaining provisions.
17.7. The law of the Federal Republic of Germany shall apply exclusively, with the express exclusion of international private law.
17.8. If both contracting parties are businesses, the place of jurisdiction and place of performance shall be Düren, Germany.