General Terms and Conditions

These General Terms and Conditions (hereinafter GTC) apply to all our present and future contracts and business relationships. Conflicting terms of the client shall not become part of the contract, unless this is separately confirmed by Shopmacher in text form.

These GTC apply only insofar as the client is an entrepreneur (§ 14 BGB, German Civil Code) or a legal entity under public law.

Individual agreements made with the client in a specific case shall always take precedence over these GTC.

Legally relevant declarations and notices of the client with regard to the contract (e.g. notices of defects, setting of deadlines, etc.) must be submitted in written or text form.

Unless expressly agreed otherwise, Shopmacher is engaged under a service contract (Dienstvertrag). Unless expressly agreed otherwise, Shopmacher provides the customer only with personnel resources for a fee.

Unless expressly agreed otherwise, projects are further developed using an agile methodology or in subprojects individually agreed between the client and the service provider, so that there are no fixed target definitions; rather, these emerge only during the collaboration on the basis of this contract.

Shopmacher's offers are subject to change and non-binding.

As a rule, Shopmacher confirms orders from the client, but there is no obligation to do so. Acceptance of a contractual offer by Shopmacher may take place electronically or in text form, or by rendering the agreed service. Verbal commitments by Shopmacher prior to the conclusion of these contracts are legally non-binding, and verbal arrangements between the contracting parties are replaced by contracts in text form, unless it is expressly stated in each case that they continue to apply as binding.

Changes relative to the order confirmation are subject to Shopmacher's change request (CR) procedure. As a result of such CRs, the performance deadlines and dates shift accordingly.

All copyright exploitation rights, industrial property rights and legal positions similar to property rights in the contractually rendered services and in all other written, machine-readable and other work results created within the scope of this contract pass to the client upon full payment of all invoices of Shopmacher from the order relationship, without any further condition and without additional remuneration. The rights of use in the work results are vested in the client irrevocably, exclusively, and without restriction as to territory, time and content, and may be extended, transferred, reworked, adapted, modified, reproduced or published by the client without the consent of the service provider. Excluded from this are source codes originating from or created from so-called "open source" sources, as well as media (images, film clips, animations, texts) for which the authorship lies with third parties. Here, the rights of use are as agreed by Shopmacher with third parties.

Shopmacher is not prevented from using the knowledge acquired in the course of performing the contract for its own purposes, provided that the property rights of the client as defined above are not thereby infringed.

When using data and preliminary work of the client, Shopmacher assumes that these are not encumbered with third-party rights and that the client holds the right of use required for the order.

The prices apply to the scope of services and deliveries specified in the order confirmations. Additional or special services are charged separately. Prices are stated in euros, plus statutory value added tax.

Unless otherwise stated, invoice amounts are to be paid within 10 days (of the invoice date) without any deduction, unless otherwise agreed in text form. The receipt by Shopmacher is decisive for the date of payment.

If, after conclusion of the contract, it becomes foreseeable that Shopmacher's claim to payment of the remuneration is jeopardised due to a lack of ability to pay on the part of the client (e.g. by an application to open insolvency proceedings or similar), Shopmacher is entitled to refuse performance and, where applicable after setting a deadline, to withdraw from the contract. Shopmacher is then likewise entitled to carry out or render outstanding services only against advance payment or the provision of security.

Rights of set-off and retention are available to the client only if its claim has been finally established by a court or is undisputed, and its counterclaim is based on the same contractual relationship.

The services are rendered on the premises of Shopmacher, its contractual partners or those of the client. Insofar as the work is carried out at the client's premises, the client bears the travel costs at a flat rate of 0.50 EUR per kilometre travelled. The costs for 2nd class rail or air travel as well as accommodation costs are billed according to the expenses actually incurred. Travel costs and travel times are not included in the daily rates and offer prices stated above. Travel times count as working times and are charged at 50% of the costs.

Deadlines and dates for services indicated by Shopmacher are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. The client bears the burden of proof for a fixed deadline or a fixed date.

Shopmacher may, without prejudice to its rights arising from default of the client, demand from the client an extension of delivery and performance deadlines or a postponement of delivery/performance dates by the period during which the client fails to fulfil its contractual obligations towards Shopmacher.

Shopmacher is not liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events not foreseeable at the time of conclusion of the contract (for example operational disruptions of any kind, transport delays, strikes, lawful lockouts, shortage of labour, official measures, or the failure of suppliers to deliver, or their incorrect or untimely delivery) for which Shopmacher is not responsible. If such events make delivery or performance substantially more difficult or impossible for Shopmacher, and the impediment is not merely of a temporary nature, Shopmacher is entitled to withdraw from the contract. In the case of impediments of a temporary nature, any expressly agreed deadlines are extended by the period of the impediment, plus a reasonable start-up period.

If Shopmacher is in default with a service, or if a service becomes impossible for whatever reason, the liability of Shopmacher for damages is limited in accordance with § 8 of these General Terms and Conditions.

The client shall provide necessary data in a timely manner and in digital form. Insofar as Shopmacher provides the client with drafts and/or test versions, stating a reasonable deadline for review as to correctness and completeness, the drafts and/or test versions are deemed approved after expiry of the deadline, provided that Shopmacher does not receive a request for correction.

The client is responsible for sufficient resources and information within the scope of its duty to cooperate. It shall ensure the availability of the required number of competent employees from a functional and IT perspective, and sufficient computing capacities such as storage, processor performance and line capacities.

If Shopmacher deems this necessary, the client shall provide a test environment (hardware with current software status, in particular the operating system and the corresponding server software corresponding to the later conditions of use).

If and insofar as errors or impairments of the functionality of Shopmacher's services, for example a website, occur, the client shall inform Shopmacher without undue delay via the designated communication systems, stating the times, errors, specifications as well as the name and contact information of the reporting and responsible employee. As a rule, Shopmacher will begin the necessary work at the latest after 3 working days, unless the circumstances or contractual agreement require earlier action.

The client is responsible for the trouble-free operation of the facilities for remote maintenance and support, in particular stable data services and interfaces.

Shopmacher is liable without limitation for damages arising from injury to life, body or health that are based on a breach of duty by a legal representative or vicarious agent of the service provider.

Shopmacher is not liable for simple negligence of its legal representatives, senior employees and vicarious agents, unless a duty is breached whose observance is of particular importance for achieving the purpose of the contract (cardinal duty). Cardinal duties are those duties whose fulfilment is what makes the proper execution of the contract possible in the first place, whose breach jeopardises the achievement of the purpose of the contract, and on whose observance the other contracting party regularly relies.

In the case of the negligent breach of a cardinal duty, liability is limited to the damage that is foreseeable and typical for the contract. In all other respects, the contractor is liable only in the case of intent and gross negligence of its legal representatives, senior employees and vicarious agents.

Subject to a differing (individual) agreement, the contract for the rendering of services may be terminated at any time with immediate effect for the future. The services rendered up to that point are to be remunerated; the records of Shopmacher apply for this purpose.

The right to extraordinary termination remains unaffected. This applies in particular if the client is in default with the payment of the remuneration, or does not render its cooperation services, or does not render them in time despite a reminder, or does not render them sufficiently in scope and quality.

Termination requires text form.

Employees deployed by Shopmacher at the client's premises are subject exclusively to the right of instruction of Shopmacher. This applies in particular to instructions under employment law. Scheduling and factual specifications are to be coordinated with the contact persons previously designated between Shopmacher and the client. Shopmacher employees are entitled to accept only purely technical instructions from the client.

Shopmacher is entitled to have (partial) services carried out by subcontractors or partner companies. (Partial) services carried out by sub- or partner companies are treated as services carried out by Shopmacher itself.

The client and Shopmacher mutually undertake, during the term of the contract and within a period of three years after the end of the term, not to take any measures to solicit employees and freelancers away from the company of the respective contracting party (prohibition of solicitation), and in particular neither directly nor indirectly to employ, nor to offer or arrange employment for, persons who are or were, on any day within the aforementioned period, in a service or employment relationship with the respective contracting party (client or contractor).

These GTC and the contractual relationships between Shopmacher and the client are governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UN-Kaufrecht).

Shopmacher's registered place of business is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

Should a provision of this agreement be invalid, unenforceable or voidable, this shall not affect the validity of the contract in other respects. In place of the invalid, unenforceable or voidable provision, a provision shall apply that corresponds to the economic purpose of the parties. The same applies in the case of a gap in this contract.