General Terms and Conditions of Factorial GmbH ("Factorial")
§ 1 Scope of application
- Factorial provides its services and deliveries (together "services") exclusively on the basis of these general terms and conditions (“GTC”). Deviations or changes must be agreed in writing. GTC of the customer do not apply, unless Factorial agrees to their validity in writing. In this respect the execution of a service is not considered as consent.
- These GTC shall only apply to companies as defined by § 14 BGB (German Civil Code), legal entities under public law, special funds under public law and other institutional clients who do not act for private purposes (and therefore not as consumers as defined by § 13 BGB) when placing an order. These GTC shall also apply to all future business with the customer from current business relations, even if they are not explicitly included again.
- These GTC apply in particular to services in the area of web design, creation, modification and further development of software (including online shops, online platforms, apps, etc.) as well as the provision of accompanying services such as installation and implementation, conception, project management and training, hosting and support services. Factorial also offers services in the form of simple programming work, where Factorial provides support for the client, especially if the planning and conceptual specifications for the programming are mainly developed by the client and Factorial takes over the programming work against payment according to time and effort.
- Factorial is entitled to change these GTC at any time. Factorial will inform the customer about such changes in textual form. The change is considered to be approved by the customer, if he does not object in textual form within six weeks after receipt of the change notification. Factorial will inform the customer about this consequence in the change notification.
§ 2 Conclusion of contract, general information on service provision
- The conclusion of contract usually takes place via a corresponding offer from Factorial and a corresponding order from the customer. Decisive for the content and scope of the services to be provided is the offer of Factorial. This also applies if the client demands a counter confirmation of his order for documentation purposes; the counter confirmation is purely of declaratory character. Alternatively, the conclusion of contract is ensued by a separate contract document.
- Unless the contractual documents or the type of services to be provided indicate otherwise, Factorial owes the execution of the contractual services with the care customary in the industry, but no specific success. Factorial may use third parties (e.g. suppliers, freelancers, subcontractors) to perform its services.
- Working days in the sense of the contract are Monday to Friday, except for public holidays. The regular working hours of Factorial are weekdays from 10:00 to 18:00, unless otherwise agreed for individual services.
- A user or other documentation is owed by Factorial only if and as far as this has been agreed upon in individual cases.
- As far as the services of Factorial refer to projects of the client or are carried out within the framework of such projects, the overall responsibility for project planning, implementation and control, including scheduling and use of resources, lies with the client (unless otherwise individually agreed upon). The coordination is carried out after prior consultation with, and with due consideration of the interests of, Factorial. In general, the customer acknowledges that the success of IT projects depends decisively on close cooperation between the parties, mutual obligations to cooperate and continuous planning.
- If the customer provides Factorial with content that is placed on a website, online shop, online platform, app or other electronic media or is implemented in such media, the customer is solely responsible for the conformity of this content with all applicable legal regulations as well as the rights of third parties. Furthermore, Factorial does not owe any examination of compliance with applicable laws or regulations with regard to business transactions of the client to which the services to be rendered by Factorial refer to, nor does Factorial check the data provided by the client for the provision of services or processed by means of the services rendered by Factorial for correctness, completeness, intactness or authenticity.
§ 3 Special features of agile development
- If it is agreed that Factorial uses an agile development process for the creation of software, this development process is actively controlled by a Product Owner nominated by the customer. The customer formulates requirements for the software. The parties map these requirements in stories, which the customer's product owner formulates in consultation with Factorial and enters in a product backlog, which can be accessed by both parties and in which the customer can prioritize the tasks. Factorial develops the software in iterations according to the backlog. Until the beginning of the respective iteration, the customer can request changes at any time. After that, changes are only possible after explicit agreement with Factorial.
- The customer tests Factorial's services continuously, even during ongoing iterations.Latest after completion of an iteration, of which the completion Factorial indicates to the client, the client is obliged to test and release the result of the iteration immediately or to give reasons for a rejection. If the result is rejected, further processing is carried out in the next step of the iteration.
§ 4 General obligations of the customer to cooperate
- The customer provides Factorial with all documents and information necessary for the provision of services as well as any agreed provisions (e.g. hardware or software components to be procured by the customer and/or image and text material for integration into websites, online shops, online platforms, apps etc.) in good time, complete, in the current version, free of malware and free of third party rights. Electronically provided data must be provided in the agreed data format; additional expenses for any (re-)formatting required by Factorial shall be borne by the customer. If the customer realizes that any information or requirements provided are faulty, incomplete or not up to date, he has to inform Factorial immediately about this and the recognizable consequences and take all necessary corrective measures.
- With regard to materials and system components provided or made available by the customer for Factorial, the customer guarantees that he is entitled to hand them over to Factorial and that he has the necessary rights of use and, if necessary, processing rights. He grants Factorial the simple rights of use and processing necessary for the execution of the contract. In addition to the responsibility of the customer for contents according to the above § 2.6., the customer ensures that when using the work results created by Factorial (e.g. websites, online shops, online platforms, apps etc.) all applicable legal regulations (especially data and consumer protection law) as well as industrial property rights, copyrights and other rights of third parties are observed.
- The customer exempts Factorial from all actual and alleged claims, including the costs of legal prosecution, which are asserted against Factorial in connection with the circumstances mentioned in this § 4.2 by a third party with the allegation of a violation of industrial property rights, copyright or other rights. If the customer recognizes or must recognize that such an infringement is imminent, he will inform Factorial immediately.
- With regard to provisions the client is also responsible for their topicality, accuracy, stability and compatibility with the other IT components used in the course of the execution of the contract as well as with the client's existing IT landscape. The customer shall inform Factorial immediately about all special features of the provisions that are relevant for the execution of the contract, in particular about defects that have occurred, maintenance measures that have been carried out or additional or in-house developments. The customer informs Factorial in a documented form about special conditions, e.g. license conditions of provided systems or components, which have to be observed by Factorial when providing services.
- In his area of organization and responsibility (including the data processing service provider commissioned by the customer) the customer provides for sufficient and state of the art data and information security, especially regular (usually daily updated) data backups. This also applies to the backup of the customer's data against damage or loss during the execution of agreed services during which Factorial accesses the customer's systems; for this purpose the customer creates a complete backup of his current data stock on a suitable storage medium before the first (also test) use of a service purchased from Factorial.
- The customer also supports Factorial adequately and at his own expense in the execution of the contract, including the provision of necessary personnel resources. The customer shall appoint a responsible, competent contact person and deputy who is authorized to make all decisions and take all actions related to the execution of the contract. The customer shall inform Factorial immediately of any changes to these persons.
- Further obligations to cooperate may result from the contract documents.
- If the customer uses third parties (e.g. other service providers such as agencies) to fulfill his obligations to cooperate, he will inform Factorial immediately about this as well as the person/company of the third party and the respective content and scope of the order. The customer is responsible for third parties that the customer uses or that become active for him at his instigation or under his tolerance in the field of activity of Factorial or otherwise in connection with the execution of the contract, as for vicarious agents.
- Additional costs caused by a neglected or untimely, incomplete or improper performance of duties to cooperate (e.g. untimely performance of tests and approvals or acceptances according to the following § 9) will be borne by the client.
§ 5 Changes in services (change requests)
Unless the procedure for adapting service content is already derived from the selected process model (e.g. in the case of agile development), and unless otherwise regulated in individual cases (e.g. agency procedures with back-to-back coordination with the end customer), the following applies to service changes:
- If the customer wishes to change agreed services, including changes to the agreed schedule, he expresses the wish for change via the ticket system used by Factorial or by email, stating the exact service content and reasons for the desired change. Factorial will check within a reasonable period of time what effects the desired change would have on the execution of the contract, especially with regard to costs/extra work, deadlines and the customer's obligation to cooperate. If Factorial identifies that due to the examination of the requested change services cannot be performed or can only be performed with delay, Factorial will inform the customer and point out that the requested change can only be further examined if the services in question are postponed for an initially indefinite period of time. If the customer agrees to the postponement, Factorial will carry out further examination of the change request. The customer is entitled to withdraw his request for change at any time; the initiated change procedure will then end.
- The implementation of change requests is subject to separate remuneration according to Factorial's current prices. The customer is also responsible for the expenses resulting from the change request, including the examination of the change request, the preparation of a change proposal and possible downtimes.
- After examination of the request for change Factorial will explain to the customer the consequences for the execution of the contract. Factorial will either submit a detailed proposal for the implementation of the requested change, stating whether and to what extent a separate remuneration will be due, or it will explain why the requested change cannot be implemented.
- The parties agree on the content of a proposal for the implementation of a change request including costs in good faith; the agreement shall be documented by email communication or via the ticket system.
- If an agreement is not reached within a reasonable period of time, or if the change procedure ends for any other reason, the originally agreed scope of services shall remain in effect. The same applies if the customer does not agree to a postponement of the services for the purpose of further examination of the change request according to § 5.1.
- Dates affected by the change procedure will be postponed, if necessary, taking into account the duration of the examination, the agreement on the change proposal and the change requests to be carried out plus an appropriate start-up time. The parties shall agree on the new dates in good faith.
- Notwithstanding the above, Factorial may change or deviate from the contractual services if the change or deviation is reasonable for the customer, taking into account the legitimate interests of both parties. This includes in particular minor technical deviations that do not affect the functionality of the owed services.
§ 6 Rights to work results
- Factorial grants the customer exclusive, transferable and sublicensable rights of use, unlimited in time and space, for work results individually created for the customer, especially those which are created by processing information, data and materials of the customer, unless otherwise stated in the contract documents. Notwithstanding the above, the customer acknowledges that the services to be rendered by Factorial, especially web design and software development, are part of Factorial's standard service offer. Factorial is in any case free to perform similar or identical programming work for other clients and/or to program its own software accordingly and to use it as its own product.
- For all other work results, Factorial grants the client simple rights of use, unlimited in time and space, bound in content to the purposes of the contract and only transferable and sublicensable for these purposes.
- Provided that Factorial uses Open Source Software ("OSS"), both Factorial and the customer are bound to the compliance with the license terms applicable for this, including possible obligations to take over OSS/copyright notes. Factorial cannot grant the customer exclusive rights of use for OSS components. On request, Factorial will inform the customer about the use of OSS components and the licence conditions applicable.
- The customer is entitled to use the work results for his own business purposes and, unless otherwise agreed in individual cases, to copy, process and combine them with other materials for these purposes. However, regardless of whether he has been granted simple or exclusive rights of use, he is not entitled to economically exploit work results, especially software or edited versions thereof, like a (software) provider, without prior written consent by Factorial. The client is not allowed to remove any copyright notices embedded in work results.
- A further use of the work results than that described in this § 6 and otherwise contractually agreed upon is not permitted. The right to the complete transfer of a legal position acquired by software purchase remains unaffected. The statutory minimum rights with regard to software pursuant to §§ 69d and 69e of the German Copyright Act (UrhG) shall also remain unaffected.
- The granting of rights of use is always subject to a condition precedent and only becomes effective upon full payment of the remuneration for the services concerned. Factorial can provisionally allow the customer to use the work results before this point of time. Factorial reserves the right of ownership of all physically provided objects (e.g. data carriers) on which work results are stored until the complete payment of the remuneration owed for these objects.
§ 7 Remuneration
- The customer pays Factorial a remuneration which is determined according to the contract documents; if not otherwise regulated there, according to the prices of Factorial valid at the time of the order. All prices are subject to value added tax.
- If daily rates are agreed upon, a daily rate covers 8 hours. For each additional hour an additional 1/8 of the daily rate shall be charged; however, there shall be no entitlement to overtime. A surcharge of 100 % shall be charged for work performed outside the regular working hours.
- Invoices are payable within 14 days of the invoice date; fixed current fees are payable on the 3rd working day of each month in advance.
- If the subject of the contract is a quota of services which the customer successively calls up within an agreed period of time, the quotas shown in the contract documents are deemed as fixed. Factorial will inform the customer in due time before the end of the agreed period of time if and to what extent services have not been called and will offer these services to the customer on call. If the customer nevertheless does not call on the services within the agreed period of time, Factorial is entitled to demand the total remuneration for the agreed contingents. If Factorial is able to use the resources scheduled for the customer in another way, Factorial will deduct the amount of the resources obtained from this when invoicing. However, there is no obligation for Factorial to generate alternative uses for its resources.
- Expenditure exceeding the agreed services will be invoiced according to Factorial's prices valid at the time of service provision.
- The customer reimburses Factorial for travel and accommodation costs as well as travel times.
- Factorial is entitled to adjust the remuneration for recurring services (continuing obligations) once a year at its reasonable discretion and taking into account the interests of the customer to its cost development, especially price changes of suppliers or subcontractors as well as increased personnel costs. Factorial will inform the customer about such changes in the remuneration of services in text form with adequate advance notice. The change is considered accepted by the customer if he does not object in writing within six weeks after receipt of the notification of change; Factorial will inform the customer about this consequence in the notification of change. If the customer objects to the adjustment of the remuneration, both parties have a special right of termination with effect from the announced date of the new prices coming into place, which can be exercised within one month after Factorial receives the objection from the customer.
- The customer is only entitled to offset against claims for remuneration of Factorial if his counterclaim is undisputed or has been legally established. The same applies to the assertion of rights of retention, whereby the counterclaim must also be based on the same contractual relationship.
- If the customer is in default of payment in more than an insignificant amount, Factorial is entitled to withhold further services, whereby Factorial will only make use of this right after prior warning with an appropriate deadline of at least 14 days and fruitless expiry of this deadline. In this case the customer remains obliged to pay due fees. Factorial reserves the right to assert further claims due to default of payment by the customer.
§ 8 Dates, default in performance
- Agreed performance periods shall commence upon conclusion of the contract, unless otherwise agreed. If information or documents from the customer are required for the performance, the performance period begins at the earliest with their receipt by Factorial.
- The assertion of rights or claims due to delay presupposes that the customer has granted Factorial after the occurrence of a delay a reasonable grace period, unless this would be unreasonable for the customer considering the circumstances of the individual case. Furthermore, the customer is only entitled to withdraw from the contract or to terminate the contract due to delay in performance if he has pointed out to Factorial at the time of setting the deadline that he will withdraw or terminate the contract if the deadline expires without result. In case of delay with only single service or partial services, the right of cancellation or withdrawal only extends to the affected (partial) service.
- Delays in performance due to force majeure or other unforeseen circumstances for which Factorial is not responsible (e.g. war, strike, lockout, riots, expropriation, changes in law, official orders, storm, floods, natural disasters, water ingress, power failures, system failures on the internet, interruption or destruction of data-carrying or telecommunication lines, illegal activities of third parties on the Internet or sabotage by malware) as well as delays in performance due to circumstances within the customer's sphere of responsibility (e.g. failure to provide cooperation services on time, delays caused by third parties attributable to the customer) do not lead to a default of Factorial. Agreed service times are automatically extended by the duration of the hindrance plus an appropriate start-up period. If the hindrance lasts longer than two months, both parties are entitled to terminate the contract with regard to the affected part of the service after the expiration of a reasonable grace period (depending on the type of contract in the individual case by termination or withdrawal). In such cases there are no claims for damages against Factorial.
- Factorial will inform the customer about the occurrence of a case of force majeure or other circumstances mentioned in this § 8.3 immediately after having gained knowledge of them.
§ 9 Test and release procedures/acceptance
If a test and release procedure has been agreed for the contractual services or individual partial services, or if it concerns (partial) services that are typically tested and released before subsequent services are performed (e.g. conceptual work), a test and release procedure shall be carried out for documentation purposes. The following applies here:
- After completion of services, if agreed upon after completion of individual partial steps (e.g. agreed milestones), Factorial will indicate completion to the customer.
- Subsequently, the customer checks the respective services or partial services for their compliance with the contract, whereby Factorial supports the customer appropriately. The customer is obliged to carry out the inspection within 10 working days after notification of completion and to inform Factorial with adequate advance notice about place and time of the inspection.
- The customer shall immediately inform Factorial of any disadvantageous deviations of the services from the contractually agreed upon by the customer via the ticket system used by Factorial. If the services to be checked are in accordance with the contract, the customer declares to Factorial via the ticket system that the services or partial services are released. Insignificant deviations from the contractually agreed upon do not entitle the customer to refuse the release. The customer also notifies Factorial of such insignificant deviations via the ticket system; Factorial will correct them within a reasonable period of time.
- If there are no deviations or only insignificant deviations from the contractually agreed upon and the customer nevertheless refuses to release the goods, Factorial can refuse to remove these insignificant deviations and to continue the execution of the contract until the written declaration of release, without Factorial being in default.
- If the customer has reported deviations that entitle him to refuse the release, Factorial will again indicate the completion to the customer after the elimination of the deviations; the test and release procedure will then run again.
- If the customer does not report any disadvantageous deviations of the services from the contractually agreed upon within the scope of the test, the services of Factorial are insofar considered to be rendered according to the contract. If the customer does not fulfil his obligation to carry out the test in time and if no notification of disadvantageous deviations from the contractually agreed upon is given within the period of time, the services are considered as released upon expiry of the period of time relevant for the test. Anything else shall only apply if the failure to carry out the test in due time was demonstrably caused by a culpable conduct of Factorial. Irrespective of the execution of the test and release procedure, the productive use of a service by the customer is always considered as release.
- Factorial can demand partial tests and releases if this has been agreed upon, or if it concerns completed work packages within the scope of the service provision, or if the partial service is self-contained and/or separately usable and/or functional; this also includes self-contained documents and parts of documents. The same shall apply if the relevant part of the service can no longer be checked with sufficient technical certainty within the framework of an overall inspection.
- If test data and/or a test system are required for the execution of the test and release procedure, these must be provided by the customer, unless otherwise agreed in individual cases.
- If the services to be provided by Factorial are legally classified as work services according to their type (in distinction to services), the procedure described in this § 9 is considered as acceptance procedure.
- In case of agile development, § 3.2 applies with priority.
§ 10 Claims for defects
If and insofar as warranty obligations exist for Factorial according to the type of services to be provided by Factorial (especially not for services) the following applies:
- The customer shall notify Factorial immediately of any defects that occur and provide detailed information on the ticket system used by Factorial, including information that is useful for error analysis and rectification of defects.
- The customer shall support Factorial appropriately in the analysis of errors and the removal of defects. The customer will immediately grant access to documents that provide further information about the occurrence of the defect. On request by Factorial he will provide the necessary staff capacity and machine times and, for the purpose of remote maintenance, enable remote access to his systems, if technically possible. Additional services that arise as a result of incorrect or incomplete information provided by the customer or due to delays in error analysis and removal of defects for which the customer is responsible will be invoiced by Factorial and will be borne by the customer.
- Claims for defects can only be made if the claimed defect can be reproduced or otherwise proven by the customer.
- Defects for which Factorial is responsible will be remedied by Factorial within a reasonable period of time at its own discretion by rectification of the defect or subsequent delivery (together: supplementary performance). Supplementary performance can also consist of Factorial temporarily or, as far as it is reasonable for the customer, permanently enabling the customer to find a workaround in order to eliminate the fault.
- Factorial reserves the right to make a total of three attempts at subsequent performance, unless this would be unreasonable for the customer in individual cases. If the supplementary performance fails, the customer can terminate the contract (depending on the type of contract by withdrawal or cancellation) or reduce the contractual remuneration, if the legal requirements regarding the affected part of the service are met. The following § 11 applies to claims for damages and reimbursement of expenses.
- If the customer wrongfully complains about the existence of a defect for reasons for which Factorial is not responsible, Factorial is entitled to charge the customer for reasonable (additional) expenses incurred by Factorial for error analysis and correction.
- Claims for defects are excluded if the customer himself or a third party changes services, carries out interventions or repairs without prior authorization by Factorial, or does not use the service in the intended way or in a hardware and software environment other than the intended one, including operating errors on the part of the customer, non-observance of application instructions or wrong processing data, wrong operating system software, wrong accessories. The above exclusion of warranty shall not apply if the customer proves that defects are not related to such circumstances. If the error analysis is made considerably more difficult by such circumstances, the customer shall bear any additional costs incurred.
- The warranty obligations of Factorial refer only to the services provided by Factorial. If errors of other system components, e.g. those provided by the customer, occur, the elimination of the error is the responsibility of the customer. In addition, the customer bears the (additional) costs that arise from the fact that a breakthrough of errors of other system components requires an error analysis and elimination of errors in the service provided by Factorial.
- In the case of an infringement of third party property rights for which Factorial is responsible (defect of title), Factorial can at its own choice either acquire at its own expense a right of use from the third party sufficient for the agreed use and grant it to the customer, or change or newly provide the service in question while maintaining the agreed possibilities of use in such a way that no more third party property rights are infringed. If this is not possible or unreasonable for Factorial, the customer is entitled to legal claims. The following § 11 applies to claims for damages and reimbursement of expenses.
- Claims for defects (including claims for damages due to violation of fulfillment, supplementary performance or secondary obligations) become lapsed after 12 months. This shall not apply if a defect was fraudulently concealed. In the case of claims for damages due to defects, the 12-month period of limitation also does not apply to damages resulting from injury to life, body or health, or if Factorial can be accused of intent or gross negligence.
§ 11 Liability for damages and reimbursement of expenses
- Factorial is only liable, for whatever legal reason, including contractual and legal liability, for intent, gross negligence as well as negligent violation of essential contractual obligations or duties, the fulfilment of which makes the execution of the contract possible in the first place and on the observance of which the customer may regularly rely (so-called cardinal obligations).
- In case of simple negligence the liability of Factorial is limited to the compensation of the foreseeable, contract-typical damage, but not more than a maximum:
- in case of contracts for one-time services (e.g. software projects) per case of damage to 50% of the contractual net remuneration and for the respective contract in total to the contractual net remuneration;
- in the case of services to be provided on a recurring basis (continuing obligation, e.g. service contract) per claim to 25% of the net annual remuneration attributable to the service affected by the claim and per contractual year to the total net annual remuneration attributable to the service concerned.
- Furthermore Factorial is not liable in case of simple negligence for lost profits, lost savings or other indirect and consequential damages in the form of pure financial losses of the customer.
- Unless the 12-month period of limitation according to the above § 10.10 is already relevant for claims for damages, claims for damages or reimbursement of expenses become statute-barred within two years from the time of knowledge or grossly negligent ignorance of the customer of the circumstances justifying the claim, but at the latest two years after the end of the year in which the claim arose.
- The limitations of liability according to § 11.1 to 11.3 as well as the statute of limitations according to § 11.4 do not apply in the case of intent, gross negligence, damages resulting from injury to life, body or health, claims according to the Product Liability Act, in cases of fraudulent intent as well as in cases where a quality guarantee has been assumed.
- If the subject matter of the contract is the temporary use of IT components or systems (e.g. hosting), the strict liability of Factorial for damages for defects already existing at the time of conclusion of the contract (§ 536a para. 1 BGB) is excluded.
- Factorial is not liable for the loss of data or programs in so far as the damage is due to the fact that the customer has failed to carry out regular and proper data backups within his area of responsibility and thereby has to ensure that lost data can be restored with reasonable effort.
- As far as the liability of Factorial is excluded or limited, this also applies to the personal liability of its legal representatives, employees and agents.
§ 12 Non-disclosure, data protection, return of materials
- Both parties undertake to treat as strictly confidential all non-public technical and commercial information concerning the business operations of the respective other party, in particular business and trade secrets ("confidential information"), as well as corresponding documents and materials containing confidential information, which is made available to them or becomes known to them in the course of the performance of the contract, even beyond the duration of the cooperation, to use it only for the purposes provided for in the contract and not to make it accessible to third parties, with the exception of third parties who may be authorised to perform the contract and to whom the parties impose corresponding confidentiality obligations.
- The confidentiality obligation shall not apply to information which (a) was already known or generally accessible to the receiving party prior to disclosure by the disclosing party, or (b) subsequently becomes known or generally accessible without breach of a confidentiality obligation on the part of the receiving party, (c) which was demonstrably developed by the receiving party independently of the knowledge of the information disclosed or brought to its attention under the contract, or (d) for which a statutory or officially ordered disclosure obligation exists. Both parties undertake to comply with all applicable data protection regulations. In connection with the establishment and execution of the contract between the parties, Factorial stores and processes customer-related data in accordance with the provisions of the applicable data protection law.
- Upon termination of the contract for any reason whatsoever, the parties shall return to each other all data and documents in their possession provided by the other party in connection with the execution of the contract, unless the corresponding materials were intended to remain with the receiving party in accordance with the contract. Data stored on systems of the receiving party shall be deleted. The foregoing shall not apply to the extent that the receiving party is subject to statutory storage or archiving obligations. Should any expenses be incurred in connection with the provision of data by Factorial to the customer, e.g. through the creation of appropriate data carriers and/or data processing in a certain format, the customer shall pay Factorial an appropriate remuneration according to the then valid Factorial prices. In any case, Factorial is only obliged to provide data in the version actually available and does not guarantee its correctness, completeness or topicality.
§ 13 Reference customer naming
Factorial 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 identification for this purpose within the framework of a revocable, simple right of use. The client undertakes to point out in a suitable place when distributing, publishing and/or making publicly available the services created by Factorial for him (e.g. websites, apps or similar) and that Factorial has acted as service provider for the client. The customer sets a corresponding link to the website of Factorial, unless this would be unreasonable for the him in individual cases.
§ 14 Prohibition of poaching
The client acknowledges Factorial's legitimate interest in protecting its professional and technical know-how. During the cooperation and for a period of one year thereafter, the client undertakes not to poach any employees or freelancers from Factorial who are employed or freelance in projects of the client, or to employ or employ them without the consent of Factorial, even as freelancers. For each case of culpable infringement the client pays Factorial a contractual penalty to be determined by Factorial at its reasonable discretion and, in case of dispute, to be reviewed as to its appropriateness by the competent court.
§ 15 Final provisions
- Unless otherwise agreed for individual rights or obligations, the contract or individual rights or obligations arising therefrom may only be transferred to a third party with the consent of the other party. The regulation of § 354a HGB remains unaffected. The right of Factorial to use subcontractors or other vicarious agents also remains unaffected.
- All attachments mentioned in the contract documents are essential parts of the contract.
- Changes or additions to the contract should be agreed in writing for documentation purposes.
- Place of performance is Hamburg, Germany, if the customer is a merchant.
- The performance and legal relationship between the parties shall be governed exclusively by German law, excluding the UN Convention on contracts for the international sale of goods.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be Hamburg.
- If individual provisions of the contract between the parties or these GTC are or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.