Terms & Conditions

Section 1 – Cooperation

(1) The parties shall cooperate in a spirit of mutual trust and shall inform each other without undue delay of any deviations from the agreed procedure or of any doubts as to 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 shall notify XICTRON without undue delay of this and of the consequences recognisable to it.

(3) The contracting parties shall name to each other contact persons and their deputies who, with responsibility and expertise, shall direct the performance of the contractual relationship on behalf of the contracting party nominating them.

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

(5) The contact persons shall consult each other at regular intervals on progress and obstacles in the performance of the contract in order to be able to intervene and steer the performance of the contract where necessary.

(6) Upon request and against a charge calculated on the basis of time spent, XICTRON shall prepare minutes of the exchange of information between the contact persons and send them to the client. In the event of differing views, the client 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 Duties to Cooperate

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

(2) The client shall support XICTRON in the performance of the services owed by XICTRON under the contract. This includes in particular the timely provision of information, data material and hardware and software, insofar as the client's cooperation services so require. The client shall instruct XICTRON in detail with regard to the services to be rendered by XICTRON.

(3) The client shall make available, in the required number, its own employees who have the necessary expertise for the performance of the contractual relationship.

(4) Insofar as the client has undertaken to procure materials (image, sound, text or similar) for XICTRON in the course of the performance of the contract, the client shall make these available 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 shall bear the costs incurred for this. The client shall ensure that XICTRON obtains the rights required to use these materials.

(5) Content created by XICTRON in the course of providing the services is provided as content templates. 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 sector-specific labelling requirements – 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 its publication.

(6) By approving or publishing the content created by XICTRON, the client assumes sole responsibility for its legal compliance. XICTRON shall not be liable for written warning notices, claims for injunctive relief, 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 shall perform acts of cooperation at its own expense.

Section 3 – Involvement of Third Parties

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

Section 4 – Deadlines

(1) On the part of XICTRON, deadlines for the provision of services may only be promised by the contact person.

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

(3) XICTRON shall not be responsible for delays in performance due to force majeure (e.g. strikes, lockouts, orders by public authorities, general disruptions of telecommunications, etc.) and due to circumstances within the client's area of responsibility (e.g. failure to provide cooperation services 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 shall notify the client of delays in performance due to force majeure.

Section 5 – Scope of Services / Changes to Services

(1) The scope of services is determined by the valid order confirmation.

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

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

(4) After examining the change request, XICTRON shall set out to the client the effects of the change request on the agreements made. This statement shall contain either a detailed proposal for implementing the change request or information as to why the change request cannot be implemented.

(5) The contracting parties shall agree without undue delay on the content of a proposal for implementing the change request and shall 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 another reason, the original scope of services shall remain. The same applies if the client does not agree to a postponement of the services for the further performance of the examination under paragraph (3).

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

(8) The client shall bear the effort incurred as a result of the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtime. Where the parties have agreed on daily rates, the effort shall be 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 the interests of XICTRON.

Section 6 – Remuneration

(1) For contracts billed on the basis of time spent, the remuneration shall be paid immediately after the services have been rendered; for orders billed at a flat-rate price, it shall be paid in advance. Deviating terms of payment require XICTRON's written confirmation of the change. The client receives a written invoice for each payment transaction.

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

(3) Against proof, the client shall bear all expenses such as travel and accommodation costs, incidental expenses and third-party charges incurred in the course of the performance of the contract. Travel costs are only reimbursed if the journey from XICTRON's registered office is more than 50 km. Travel time as such 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 reached an agreement on the remuneration for a service of XICTRON which, in the circumstances, the client could only expect to be provided against remuneration, the client shall pay the usual remuneration for this service. In case of doubt, the remuneration rates charged by XICTRON for its services shall be deemed usual.

(5) Statutory value added tax (VAT) is added to all contractually agreed remuneration.

Section 7 – Rescission

The client may only rescind the contract due to 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) In the case of contracts with a term, the client and XICTRON may terminate the contractual relationship without giving reasons by giving 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) To be effective, notice of termination must be given in writing.

Section 9 – Warranty

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

(2) No liability is assumed for deviations that arise due to technical circumstances and non-uniform standards, since the display may differ on different 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 does not deviate significantly from the concept and if, furthermore, this deviation is not based on technical circumstances, XICTRON has a right to remedy the defect. Only if the attempt to remedy the defect fails does the client have the right to abate the price or to rescind the contract.

(4) XICTRON does not warrant that particular successes or results can be achieved through the use of the product.

(5) The following shall in particular, but not exclusively, be deemed acceptance of the product: productive use (e.g. go-live), approval by the client for go-live, the absence of a written notice of defects within 14 calendar days after provision for review or on a test system, full payment without reservation as to defects. Acceptance may also result from other conduct of the client, provided that, in the circumstances, such conduct permits 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 full payment of all claims arising from the business relationship. Even after full payment, only a non-exclusive, non-transferable and non-sublicensable right of use is granted. Where software is the subject of the services, Sections 69d and 69e of the German Act on Copyright and Related Rights (UrhG) apply in addition.

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

(3) The right to use the services rendered exists only as long as the client meets its payment obligations. In the case of one-off services, the right of use is granted only on a revocable basis until full payment. In the case of ongoing contractual relationships (continuing services), the right of use continues as long as the respective 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 is in default with 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 hand them over to XICTRON.

(4) If there are claims against the client that are outstanding, due or for which a dunning letter has been sent – including claims arising from an associated order confirmation that are to be settled by recurring invoice or subsequent 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 rescission but is made in exercise of the contractual and statutory right of retention (Sections 273 and 320 BGB). Upon full payment, access shall be restored without undue delay.

(5) If the client violates the provisions of this Section, the right of use granted 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 shall indemnify 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 shall inform XICTRON without undue delay of the claims asserted by third parties. If the client does not inform XICTRON without undue delay of the claims asserted, 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 option and expense and after prior consultation with the client, make changes to the affected service which, while safeguarding the client's interests, ensure that there is no longer an infringement of intellectual property rights, or acquire the necessary rights of use for the client.

(3) If such cure 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. In doing so, the contractor shall grant the principal a reasonable phase-out period, unless this is only possible on unreasonable legal or other terms.

(4) Insofar as the principal is itself responsible for the infringement of intellectual property rights, claims against the contractor are excluded.

Section 12 – Liability

(1) XICTRON is liable for intent and gross negligence. For slight negligence, XICTRON is liable only in the event of a breach of a material 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 the occurrence of which must typically be expected. 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 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 disagreements arising from or in connection with this contractual relationship, the parties shall first attempt to reach a solution through a thorough discussion between the contact persons.

(2) Disagreements that cannot be resolved by the parties should be settled through conciliation proceedings. If a party refuses to carry out conciliation proceedings, it may take recourse to the ordinary courts if it has previously notified the other party of this in writing.

(3) In order to enable conciliation, the parties mutually waive the defence of limitation for all claims arising from the disputed facts from the request for conciliation until one month after the end of the conciliation proceedings. The waiver has the effect of suspending the limitation period.

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

Section 14 – Confidentiality

(1) Documents handed over and knowledge and experience communicated to the other contracting party may be used exclusively for the purposes of this contract and may not be made accessible to third parties, unless they are intended to be made accessible to third parties or are already known to the third party. Third parties do not include the auxiliary persons involved in the performance of the contractual relationship, such as freelancers, subcontractors, etc.

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

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

(4) If a contracting party so requests, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after the end of the contractual relationship, insofar as the other contracting party cannot 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 the basis of counterclaims arising from the respective contractual relationship.

(3) The contracting parties may only set off claims that have been established by final and binding judgment or are undisputed.

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

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

(6) All offers and prices of XICTRON are always non-binding and subject to change, unless they have been declared binding in writing. Furthermore, all texts, information, prices etc. in the client information are subject to changes 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 all of the 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 the performance at any time without separate notice, provided that this does not result in any disadvantages for the client.

Section 16 – Final Provisions

(1) All amendments and additions to contractual agreements must be recorded in writing for purposes of evidence. Notices that must be given in writing may also be given by email.

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

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

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

(5) Should individual provisions of the agreements between the parties 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.

Reference use

The client grants XICTRON and XICflow the non-exclusive right to name and depict the websites created and published with XICflow — including name, logo and screenshots — as a reference to present their own services (for example on their own website, in portfolios and in marketing materials). The client may object to this use at any time with effect for the future in text form (e.g. by email).