TERMS & CONDITIONS
§ 1. Scope
(1) These General Terms and Conditions (GTC) shall apply to all business relationships of BEHIVE.agency GmbH (hereinafter referred to as “Contractor”) with its clients or buyers (hereinafter referred to as “Customers”). The GTC shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the production of works and/or the sale of software (hereinafter: “Work”), regardless of whether the Contractor produces the Work itself or purchases it from third parties (§§ 433, 633, 651 BGB). The GTC in their respective version shall also apply as a framework agreement for future contracts on the production and/or sale of Works with the same Customer without the Contractor having to refer to them again in each individual case; the Contractor shall inform the Customer without undue delay of any changes to these GTC.
(3) These GTC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and to the extent that the Contractor has expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Contractor executes the order without reservation in the knowledge of the Customer’s GTC.
(4) Oral agreements or arrangements made prior to the conclusion of the contract have been fully taken into account in the contract. There are no verbal collateral agreements.
(5) Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or the written confirmation of the Contractor shall be authoritative for the content of such agreements. With the exception of managing directors or authorized signatories, the Contractor’s employees are not entitled to make verbal agreements that deviate from the contract or these GTC.
(6) Legally relevant declarations and notifications to be made by the Customer to the Contractor after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
(7) The written form shall be complied with by postal letter, fax or email.
(8) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
(9) In the event of individual agreements requiring interpretation and deviating from these GTC, these GTC shall be taken into account in the interpretation.
§ 2. Conclusion of contract
(1) Offers of the contractor are subject to change and non-binding. This shall also apply if catalogs/samples, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards, references), other product descriptions or documents – also in electronic form – to which the Contractor reserves ownership rights and copyrights have been provided to the Customer.
(2) The documents forming part of the Contractor’s offer are as accurate as possible, but are only approximate, unless they are expressly designated as binding.
(3) The Contractor may accept orders within 14 days of receipt. An effective contract shall only be concluded upon written confirmation of the order received by the Contractor or its invoice, but no later than upon delivery of the work to the Customer.
§ 3. Subject of the contract, termination of the contract
(1) In particular, the contractor provides services in the field of concept, design, development & marketing. The representation is based on the data/materials provided by the customer. The overall impression of the work to be produced is essential. The elaboration of detailed constructive solutions is in principle not part of the contractually owed service. The contractor does not check the technical feasibility of a work to be produced or whether it complies with the rules of technology.
(2) The subject matter of the contract and the scope of the contract concerning the service to be rendered result from the order confirmation of the Contractor in connection with these Terms and Conditions.
(3) The basis for the work and part of the order are, in addition to the order, the project list to be handed over by the Customer to the Contractor, its appendices and performance specifications. If the project comprises more than 10 man-days, the Customer shall additionally prepare a schedule in consultation with the Contractor.
(4) All working documents, electronic data and records (e.g. textures, maps, graphics, images, 3D models, setups, source data, scripts, source codes) that have been produced or used by the Contractor for the production of the work shall remain the property of the Contractor. With the payment of the agreed fee, the contractor owes the agreed service, but not the intermediate steps leading to this result in the form of sketches, drafts, production data, etc.. If the customer wishes files and data to be made available to him, this must be agreed in writing and paid for separately. The Contractor shall not be obliged to hand over these working documents unless this has been agreed. Agreements deviating from this can only refer to materials whose rights are held by the Contractor.
(5) Any amendment and/or supplement to the order and/or its components must be made in writing.
(6) In the event of cancellation/withdrawal of orders, work and the like by the customer, the contractor shall be reimbursed for all costs incurred as a result, the services provided up to this point shall be remunerated and the contractor shall be released from any liabilities to third parties.
§ 4. Fee, default of payment, security
(1) The basic fee for the Contractor’s services shall be negotiated individually in each case and offered without the statutory value added tax. This also applies to the preparation of a cost estimate or offer by the contractor. As a rule, the costs for project management amount to 20 percent of the total net invoice amount (hourly rate and any third-party costs). Any deviation must be expressly agreed.
(2) Unless otherwise agreed, the fee agreed between the parties for an order shall result from the order confirmation of the Contractor. This does not include, unless explicitly stated, transport/shipping and packaging costs, insurance, customs duties etc.
(3) The Contractor’s prices stated in a cost estimate and/or in the order confirmation shall apply subject to the proviso that the underlying order data remain unchanged. Additional services which are not included in the order confirmation or a binding offer of the Contractor shall be remunerated separately.
(4) All prices stated in quotations and orders and the amounts to be paid calculated therefrom shall be exclusive of the statutory value added tax at the applicable rate, unless stated otherwise.
(5) The fee is due and payable without deduction to the account specified by the Contractor within 30 days from the date of invoice and delivery or acceptance of the work.
(6) The Contractor shall be entitled to issue invoices for services already rendered in accordance with the respective service levels. The Contractor shall also be entitled to issue an appropriate advance invoice prior to commencement of the activity. Deviating agreements can be made individually.
(7) Upon expiry of the payment deadline (para. 5), the customer shall be in default. During the period of default, interest shall be charged on the fee at the applicable statutory default interest rate. We reserve the right to claim further damage caused by default. The claim to the commercial due date interest (§ 353 HGB) remains unaffected.
(8) If the value of the order exceeds EUR 50,000, the Contractor may require the Customer to submit an unconditional, unlimited and directly enforceable payment guarantee from a European bank or to submit a payment guarantee as security for the fee.
(9) If, after conclusion of the contract, it becomes apparent that entitlement to the fee is jeopardized by the Customer’s lack of ability to pay (e.g. by an application for the opening of insolvency proceedings), the Contractor shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), the Contractor may declare the withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 5. Right of retention
(1) The customer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. A counterclaim of the customer shall only be taken into account if special circumstances make the contractor’s request for payment appear to be fraudulent; the seller’s request for payment shall be deemed to be fraudulent in particular if and to the extent that the customer has offset it against an undisputed or legally established claim.
(2) In the event of defects in the delivery, the customer’s counter rights shall remain unaffected, in particular pursuant to § 10 para. 2 sentence 2 of these GTC.
(3) A right of retention according to § 369 HGB at the expense of the contractor is excluded.
§ 6. Additional costs, additional work, change requests
(1) Travel expenses of the Contractor or its vicarious agents to meetings with the Customer or on behalf of the Customer shall be reimbursed at a flat rate per kilometer of 0.35 EUR/km. Other travel expenses (flight (economy), train (1st class), overnight stay, etc.) shall be reimbursed by the Customer upon presentation of receipts. A separate release of the customer is required if the hotel costs exceed € 100.00 per night.
(2) Unforeseeable additional expenses require mutual agreement and, if necessary, additional remuneration in accordance with § 4 para. 1. If no agreement can be reached between the Contractor and the Customer on the amount of additional remuneration, the Contractor shall be entitled to terminate the order in accordance with § 3 para. 6 of these GTC.
(3) The Contractor shall be entitled to adjust the fee during the ongoing contractual relationship if the Customer’s wishes change during the contractual relationship and this results in additional expenses for the Contractor. This must be documented in writing and applies in particular to cases in which the material to be supplied by the Customer in accordance with § 9 does not correspond to the quality that the Contractor could expect in accordance with the order (e.g. dissolution of textures).
(4) If third-party costs are incurred for the performance of individual works and these are advanced by the Contractor, these are included in the invoice for the Contractor’s fee. Such external costs also affect the costs for project management.
§ 7. Lieferung des Werks, Eigentumsvorbehalt
(1) The delivery of the Work or the data shall be made in electronic / digital form to the email address designated by the Customer for this purpose or via FTP to a server designated by the Customer, unless otherwise agreed. Delivery shall be deemed to have taken place if the Contractor does not receive any feedback from the email server that the delivery email has not been delivered or has been rejected or the data has been stored in full without error message on the server designated by the Customer. The Customer shall immediately satisfy itself as to whether it has properly received all data in accordance with the order and shall immediately notify the Contractor of any error in the delivery.
(2) The delivery/service dates and delivery/service deadlines specified by the Contractor are non-binding unless expressly agreed otherwise in writing.
(3) The Contractor may – without prejudice to its rights arising from default on the part of the Customer – demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance deadlines by the period during which the Customer fails to meet its contractual obligations towards the Contractor. The Contractor shall not be liable for failure to comply with the agreed schedule due to circumstances for which the Customer is responsible.
(4) The Contractor shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions, strikes or lawful lockouts, war, shortage of labor, energy or raw materials, disruptions in telecommunications and/or power supply, official measures or the lack of, incorrect or untimely delivery by the Customer or other suppliers, etc.). Insofar as such events make it significantly more difficult or impossible for the Contractor to provide the delivery or service and the hindrance is not only of temporary duration, the Contractor shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by giving immediate written notice to the contractor.
the Contractor of the contract. In this case, the Customer shall pay for the services already rendered by the Contractor in accordance with the contract.
(5) If the Contractor is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the liability of the Seller shall be limited to damages in accordance with § 11 of these General Terms and Conditions.
(6) The Contractor shall be entitled to make partial deliveries and render partial services, provided that they are not unreasonable for the Customer.
(7) All works delivered by the Contractor shall remain the property of the Contractor until full settlement of all claims of the Contractor arising from the contractual relationship and other claims which the Contractor acquires against the Customer for whatever legal reason now or in the future (including all balance claims from current account).
§ 8. Abnahme
(1)Insofar as acceptance is to take place, the work shall be deemed to have been accepted when
the delivery has been completed and
the Contractor has notified the Customer thereof with reference to the deemed acceptance pursuant to this § 8 para. 1 and has requested the Customer to accept the Work and
twelve working days have elapsed since delivery or the Customer has started using the Work and in this case six working days have elapsed since delivery and
the Customer has failed to accept the Work within this period for a reason other than a defect notified to the Contractor which makes the use of the Work impossible or substantially impairs it.
This shall also apply to interim acceptances.
(2) Acceptance shall be deemed equivalent if the customer is in default of acceptance.
§ 9. Customer obligations, liability for customer documents, rights of use
(1) The Customer shall provide the Contractor with all data and documents required for the execution of the order free of charge and without delay. The customer shall cooperate at its own expense.
(2) If the Customer provides the Contractor with data, documents, samples and/or other templates for utilization or further processing, the Customer assures that it is entitled to do so by providing them.
(3) With regard to the aforementioned documents, samples and/or templates and the work products resulting therefrom, the Contractor shall not assume any liability for their legal admissibility. This applies, among other things, to provisions of the UrhG, the MarkenG, the UWG, the TelemedienG, the BGB, the BGB-InfoVO and criminal provisions. In this respect the
Contractor expressly points out that no examination with regard to the legal admissibility is carried out by the Contractor. In this respect, the Customer shall indemnify the Contractor against any claims of third parties. This shall also apply if the Customer uses the work products other than as agreed.
(4) Unless otherwise agreed, the customer grants the contractor the comprehensive and non-restricted rights of use to the data and documents on which the visualizations are based, insofar as they are required for use of the visualizations by the contractor. This includes commercial use.
§ 10. Deficiencies
(1) The Buyer’s claims for defects shall be subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, the Contractor shall be notified thereof in writing without delay. The notification shall be deemed to have been made without delay if it is made within 10 days, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer shall notify the Contractor in writing of obvious defects within 12 days of delivery of the work, whereby timely dispatch of the notice shall also suffice to meet the deadline. If the Customer fails to duly inspect and/or notify the defect, the Contractor’s liability for the non-notified defect shall be excluded.
(2) If the defect in the work product is due to the quality of the material to be supplied by the Customer within the scope of its duty to cooperate pursuant to § 9, this shall not be a case of warranty, but a case of § 6 para. 3.
(3) The Contractor shall be entitled to make any subsequent performance owed dependent on the Customer paying the fee due. However, the Customer shall be entitled to retain a part of the fee that is reasonable in relation to the defect.
(4) The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, shall be borne by the Contractor if a defect is actually present. However, if a request by the customer to remedy a defect turns out to be unjustified, the contractor may demand reimbursement of the resulting costs
from the customer.
(5) If the supplementary performance has failed or if a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the fee. In the case of an insignificant defect, however, there shall be no right of withdrawal. The Contractor shall have three attempts at proper subsequent performance, unless special extraordinary circumstances at the Customer’s justify fewer attempts at subsequent performance.
(6) Claims of the customer for damages or reimbursement of futile expenses exist only in accordance with § 11 of these GTC and are otherwise excluded.
§ 11.Other liability
(1) Unless otherwise provided in these GTC including the following provisions, the Contractor shall be liable in the event of a breach of obligations in accordance with the relevant statutory provisions.
(2) The Contractor shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the case of simple negligence, the Contractor shall only be liable for
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the violation of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely, so-called cardinal obligations); in this case, however, the liability of the contractor shall be limited to the compensation of the foreseeable,
typically occurring damage.
(3) The Contractor shall only be liable to the Customer for damage to documents, samples and/or templates provided which are the result of fault on the part of the Contractor or its vicarious agents to the amount of the respective material value.
(4) The limitations of liability resulting from para. 2 shall not apply insofar as the Contractor has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods/work.
(5) Insofar as the Contractor’s liability is excluded or limited, this shall also apply to its employees, workers, staff, representatives and vicarious agents.
(6) Due to a breach of duty that does not consist of a defect, the Customer may only withdraw from or terminate the contract if the Contractor is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 12. Limitation
(1) Claims for defects shall become statute-barred 12 months after delivery of the work or acceptance thereof, unless the defect was fraudulently concealed or relates to a guarantee for the quality of the item.
(2) The above limitation periods of the law on contracts for work and services and the law on sales shall also apply to claims for damages of the customer based on a defect of the work, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Otherwise, the statutory limitation periods shall apply exclusively to the customer’s claims for damages pursuant to § 11.
§ 13. Copyright, rights of use to the work
(1) All work products and works of the Contractor, in particular all linguistic and written works, designs, computer programs, scripts, codes, musical works, photographic works, including works created similarly to photographic works, cinematographic works as well as representations of a scientific and technical nature, such as drawings, plans, maps, sketches, tables and plastic representations, are personal intellectual creations which are subject to the protection of the Copyright Act (UrhG), regardless of whether they are created as a draft or as a finished product for the benefit of the Contractor. All works of the Contractor are protected as personal intellectual creations by the Copyright Act, the provisions of which shall be deemed to have been agreed even if the level of creation required under Section 2 UrhG has not been reached.
(2) The Customer assures the Contractor that the work products and works will only be used within the scope of the contractually agreed use.
(3) Upon full payment of the fee, the Contractor grants the Customer the right to use a work product and/or work of the Contractor within the scope of the respective agreement. Any other or further use, further processing and/or resale shall only be permitted with the prior written consent of the Contractor. This shall be required in particular if the work products created by the Contractor serve as a template for other work and/or changes are made to the work products. In this case, the Contractor shall have the right to demand an appropriate fee for the consent to a use exceeding the granted use. However, deviating agreements may be made.
(4) The acquisition of rights of use to work products or works that have only been partially completed is excluded, cf. Section 3 (4).
(5) Notwithstanding the above provisions, the Contractor reserves the right to use the work products and works created by it as references within the scope of its own advertising.
(6) Insofar as exploitation rights are granted, this shall be regulated by individual contract.
§ 14. Secrecy
(1) The customer is obligated to treat all commercial and technical details that become known to him from the contractor through the business relationship as a trade secret.
(2) Unless expressly agreed or marked as confidential, the information provided to the Contractor shall be deemed to be non-confidential. Insofar as the Contractor uses third parties for the provision of services, the Contractor shall be entitled to disclose the Customer Data to the third party if this is necessary for the purposes of the contract.
(3) This confidentiality obligation shall continue to apply after the execution of the contract and shall remain in force as long as the know-how and other secret information are not generally known and the corresponding patents or other industrial property rights exist.
§ 15. Choice of law and place of jurisdiction
(1) These General Terms and Conditions and all legal relationships between the Contractor and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Prerequisites and effects of the retention of title according to § 7 para. 6 shall be subject to the law at the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
(2) The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Contractor’s place of business in D-70199 Stuttgart. However, the Contractor shall also be entitled to bring an action at the Customer’s general place of jurisdiction.
Date of the GTCs: 03.03.2023