Say
"Hi"
§ 1 – Scope and Deviating Terms
(1) These General Terms and Conditions (“GTC”) apply to all contracts and legal transactions between SAPERED GmbH (“SAPERED”) and entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). This includes, in particular, customers, business partners, clients and service providers (hereinafter collectively referred to as the “Customer”) who act in the course of their commercial or self-employed professional activity. These GTC apply to all services provided by SAPERED, in particular consulting, creative, design, technology and Software-as-a-Service (SaaS) services. (2) Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if SAPERED expressly agrees to their validity in writing. Silence on such conditions shall not be deemed acceptance, even for future contracts. (3) These GTC shall also apply to all future business relationships with the Customer without the need for renewed reference, provided that they have been validly incorporated into the contractual relationship once. Previous versions of these GTC shall be replaced by the latest version. (4) Amendments to these GTC shall be notified to the Customer in writing or text form (e.g. by email). They shall be deemed approved unless the Customer objects in writing within one month of receipt. SAPERED shall explicitly inform the Customer of this consequence in the notification. In the event of timely objection, the previous version shall remain applicable to the affected contractual relationship. (5) Only those employees or representatives of SAPERED who are expressly designated as au-thorised in the relevant contractual relationship are entitled to make binding agreements deviating from or supplementing these GTC. Such agreements shall only be valid if made in writing.
§ 2 – Conclusion of Contract and Scope of Services
(1) The contract between SAPERED and the Customer shall be concluded upon acceptance of a custom-made offer by the Customer. The basis of the contract is exclusively the written offer by SAPERED, including the detailed service description and any supplementary documents, guidelines or annexes provided to the Customer. Deviations or additions require written agreement to be valid. (2) For SaaS services, SAPERED shall provide the Customer with access to a standardised software solution via a web platform in its current version. Use is limited to the agreed number of users. The Customer has no entitlement to customisation, extensions, or delivery of the source code unless explicitly agreed in writing. Software is not delivered physically; access is provided exclusively online. Local installation is only owed if explicitly agreed. (3) SAPERED reserves the right to modify or expand the agreed services with at least two weeks’ prior notice if required due to technical developments, changes in legal requirements, or if reasonable for the Customer considering SAPERED’s interests. Such changes are deemed reasonable particularly if they do not significantly affect the core contractual obligations. (4) If SAPERED provides any services free of charge, such provision is voluntary and without legal obligation. SAPERED may discontinue these at any time with reasonable notice of at least two weeks. In such cases, the Customer shall not be entitled to reduction, reimbursement or compensation.
§ 3 – Duties and Cooperation of the Customer
(1) The Customer shall support SAPERED reasonably and actively in the proper fulfilment of its contractual duties. This includes, in particular, timely and unsolicited provision of all information, materials, access data, contacts, and documentation necessary for the performance of services. This may include IT login data, company-specific information, or access to relevant premises. Delays, additional effort or costs due to failure to cooperate shall be borne by the Customer. (2) In relation to SaaS services, the Customer shall keep all access credentials confidential and secure. Disclosure to third parties is only permitted if expressly agreed in the contract. Use of the software is limited to the agreed number of users. The Customer shall not upload or process illegal content or tamper with SAPERED’s IT systems or infrastructure. (3) The Customer shall notify SAPERED in writing or text form (e.g. by email) of any changes to its company name, legal form, billing address, contact details or – in the case of direct debit agreements – banking details within seven (7) working days. (4) If the Customer fails to fulfil its cooperation obligations or other contractual duties, and fails to remedy such breach within fourteen (14) days after written notice, SAPERED shall be entitled to terminate the contract for cause. Furthermore, SAPERED reserves the right to claim compensation for any resulting damage or additional expense.
§ 4 – Deadlines and Delay
(1) Binding delivery or performance deadlines shall only apply if expressly agreed in writing. All other stated delivery dates, especially those marked as “approx.” or “circa”, are non-binding. SAPERED shall, however, make every effort to meet such deadlines. (2) A fixed-date transaction (Fixgeschäft) shall only exist if explicitly confirmed as such in writing by SAPERED or if the legal requirements are fulfilled. A unilateral declaration by the Customer shall not suffice. (3) If SAPERED is in delay, the Customer must first set a written grace period of at least fourteen (14) calendar days. Only after expiry of this period may the Customer assert further statutory rights. (4) SAPERED shall not be deemed in delay if the Customer has failed to meet its own contractual cooperation or payment obligations, including from other agreements with SAPERED.
§ 5 – Force Majeure
(1) SAPERED shall be released from its service obligations for the duration and extent of any event of force majeure. This includes unforeseeable, extraordinary events beyond SAPERED’s control such as natural disasters, pandemics, governmental actions, strikes, power or resource shortages, cyberattacks, outages of third-party systems, and similar. (2) SAPERED shall notify the Customer promptly and in writing or text form of any such event and its likely duration. SAPERED shall be entitled to postpone the service or, in the case of prolonged impossibility, to withdraw from the contract in whole or in part. (3) If a binding delivery date is exceeded due to a force majeure event, the Customer may withdraw from the contract with respect to the unperformed part after setting a reasonable grace period. Compensation claims are excluded in this case. (4) If the force majeure event lasts longer than six (6) weeks, either party may withdraw from the contract in whole or in part. Again, compensation claims are excluded. (5) The Customer is obliged to mitigate the effects of thye force majeure event to the extent reasonably possible.
§ 6 – Rights of Use to Services Provided by SAPERED GmbH
(1) Where the granting of rights of use constitutes part of the contractually owed services, the Customer shall receive a simple, non-exclusive, non-transferable and non-sublicensable right of use to the services provided by SAPERED. Unless expressly agreed otherwise, this right of use is limited to the territory of the Federal Republic of Germany, the contractually agreed number of authorised users, and the duration of the respective contractual relationship. (2) In the case of SaaS services, the right of use is limited exclusively to the use of the provided software via online access within the scope of the agreed functionalities. There shall be no entitlement to the release, disclosure or provision of the source code, or to the setup of a local instance, unless this has been expressly agreed in writing. (3) Use by third parties – including affiliated companies as defined in Sections 15 et seq. of the German Stock Corporation Act (AktG), group companies or shareholders of the Customer – is only permitted with SAPERED’s prior written consent. The Customer undertakes to ensure that each authorised third party uses the services exclusively within the contractually agreed scope and in accordance with the provisions of these GTC. (4) The software, its structure, appearance, underlying concepts as well as all contents and results of the services remain the sole property of SAPERED or the respective rights holders. Any further use – in particular reproduction, editing, distribution or publication – is not permitted unless legally authorised or expressly agreed by contract. An exception is made for reproduction for backup purposes to the extent permitted by law. (5) SAPERED reserves the right to verify compliance with the usage terms at any time. The Customer undertakes to grant SAPERED or a third party commissioned by SAPERED access to relevant documents and systems upon request, provided this is necessary and reasonable for verifying contractual use. In the event of a breach of the agreed rights of use, SAPERED is entitled to take appropriate measures, including the assertion of injunctive relief and claims for damages.
§ 7 – Payment Terms
(1) The amount of remuneration is determined by the respective offer or contract. Unless otherwise agreed, invoicing shall take place after the contractual services have been rendered. For longterm projects, extensive preliminary work, or SaaS contracts, SAPERED is entitled to request reasonable advance payments, instalments, or down payments. (2) Invoices are payable without deduction within fourteen (14) calendar days from the invoice date, plus the applicable statutory VAT. The date of payment is deemed to be the date the funds are received in one of the business accounts specified by SAPERED. Any objections to invoices must be raised in writing within seven (7) calendar days of receipt. After this period, the invoice shall be deemed accepted. (3) SAPERED reserves the right to invoice services already provided or completed project phases separately and make them immediately due, even if this deviates from the general payment terms. (4) Until full settlement of all claims arising from the business relationship, all items delivered by SAPERED, as well as all concepts, strategies, drafts, content, software components, and other intangible work results developed in the course of service provision, shall remain the property of SAPERED (§ 449 BGB). The Customer is obliged to store these work results carefully and protect them from access by third parties until full payment is made. (5) In the event of payment default, SAPERED is entitled to charge default interest at a rate of nine (9) percentage points above the applicable base interest rate pursuant to § 247 BGB. The right to claim further damages due to default remains expressly reserved. (6) If the Customer is in default with payments, SAPERED is entitled to make all outstanding claims from the entire business relationship immediately due, to suspend ongoing services, and to resume them only after full payment has been made. Furthermore, SAPERED may make the provision of further services dependent on advance payments or the provision of appropriate security. (7) If payment terms are not met or if SAPERED becomes aware of circumstances after the conclusion of the contract that justify justified doubts about the Customer’s creditworthiness or ability to pay – even if these circumstances already existed at the time of contract conclusion but were unknown to SAPERED and could not reasonably have been known – SAPERED is entitled to cease work on current projects immediately and to demand advance payments or security for any outstanding services. If the Customer fails to comply with this request within a reasonable grace period of at least fourteen (14) days, SAPERED shall be entitled to withdraw from the contract. In this case, the Customer shall be liable for all damages incurred by SAPERED as a result of non-performance.
§ 8 – Set-Off and Right of Retention
(1) The Customer is only entitled to set off claims against SAPERED if such counterclaims have been legally established, are undisputed or have been acknowledged in writing by SAPERED. (2) The Customer may only exercise a right of retention to the extent that their counterclaim arises from the same contractual relationship and is likewise undisputed, legally established or acknowledged in writing by SAPERED.
§ 9 – Acceptance
(1) Where acceptance is required by law or has been expressly agreed between the parties – including for sub-projects – the Customer shall promptly, but no later than within fourteen (14) calendar days following written request by SAPERED, declare acceptance of the services provided in writing or submit a written and substantiated refusal of acceptance. (2) Minor defects that do not significantly impair the contractual use of the service shall not entitle the Customer to refuse acceptance. If neither acceptance nor a substantiated refusal is declared within the period specified in paragraph 1, the service shall be deemed accepted (§ 640 para. 1 sentence 3 BGB). (3) Acceptance shall also be deemed to have occurred if the Customer commences operational use of the service or puts it into productive operation.
§ 10 – Notification of Defects and Warranty
(1) For SaaS services, SAPERED guarantees an average annual system availability of at least 98%, unless expressly agreed otherwise in the form of separate Service Level Agreements (SLAs). This availability commitment excludes scheduled maintenance periods, announced technical interventions, and disruptions for which SAPERED is not responsible (e.g. force majeure, failures of third-party providers). (2) The Customer is obliged to report identifiable defects or disruptions promptly, but no later than ten (10) calendar days after their occurrence or after provision of the service, in writing and with a comprehensible description of the defect (“defect notification”). Hidden defects must be reported in writing without undue delay upon their discovery and within the statutory limitation period. If the defect notification is not submitted in due time and proper form, any warranty or compensation claims arising from the relevant breach of duty shall be excluded. (3) SAPERED shall be entitled, at its own discretion, to remedy defects either by rectification or replacement. The rectification shall be completed within a reasonable period, generally within thirty (30) calendar days from receipt of the proper defect notification. If the rectification fails despite two attempts, the Customer may – in the case of material defects – demand a price reduction or withdraw from the contract. Claims for damages may only be asserted in accordance with § 11. (4) A reduction of the price is excluded in the case of SaaS services, provided that the system availability during the relevant billing period is at least 98%. (5) The limitation period for claims arising from material or legal defects shall be six (6) months from the statutory commencement of the limitation period. This also applies to concurrent claims in tort and to any consequential damages caused by defects. The limitation period shall not apply in cases of wilful misconduct, gross negligence or fraudulent intent on the part of SAPERED.
§ 11 – Liability and Limitation of Liability
(1) SAPERED shall be liable without limitation in accordance with statutory provisions: a) in the event of damage caused intentionally or by gross negligence by SAPERED, its legal representatives, senior executives or vicarious agents, b) in the event of culpable injury to life, body or health, c) where a guarantee or assurance of specific characteristics has been given, d) in cases of fraudulent intent, or e) in cases of mandatory statutory liability, in particular under the German Product Liability Act (Produkthaftungsgesetz). (2) In the event of simple (slight) negligence, SAPERED shall only be liable – subject to paragraph (1) – a) if a material contractual obligation (cardinal duty) has been breached. Cardinal duties are obligations whose fulfilment is essential for the proper performance of the contract and on which the customer regularly relies, b) or if the breach concerns a duty within the meaning of Section 241 (2) of the German Civil Code (BGB), making it unreasonable for the customer to continue the contractual relationship. In such cases, SAPERED’s liability shall be limited to the typical, foreseeable damage at the time of conclusion of the contract. (3) Liability for data loss caused by slight negligence is excluded if the damage could have been avoided by regular, state-of-the-art data backups by the customer. (4) For all other damages – regardless of their legal basis – SAPERED’s liability is excluded, unless one of the exceptions listed in paragraph (1) applies. This applies in particular to claims for damages arising from: a) precontractual breaches of duty (culpa in contrahendo), b) the breach of ancillary contractual obligations, c) tortious liability, particularly under Section 823 BGB, d) compensation for consequential damages caused by defects, e) economic consequential losses, f) loss of profits, g) business interruption or production downtime, h) as well as for indirect damages of any kind. (5) SAPERED’s maximum liability for damages arising from and in connection with an individual contract – except in the cases of unlimited liability pursuant to paragraph (1) – is limited to a total of EUR 1,000,000 (one million euros) per contract. (6) The limitations and exclusions of liability set out in this § 11 shall apply equally in favour of: a) SAPERED’s legal representatives, b) its senior and non-senior employees, c) its freelance staff, d) its subcontractors, and e) all other vicarious agents and assistants of SAPERED. (7) Claims for damages by the customer – except in the cases set out in paragraph (1) – shall become timebarred within one (1) year from the start of the statutory limitation period. This shortening of the limitation period does not apply in cases of fraudulent intent, intentional or grossly negligent breach of duty, or in the event of injury to life, body or health. (8) The above provisions do not entail a reversal of the burden of proof to the detriment of SAPERED.
§ 12 – Data Protection and Confidentiality
(1) The parties undertake to maintain strict confidentiality with regard to all information, data, documents and business secrets of the respective other party that become known in the context of the contractual relationship, provided such information is either expressly marked as confidential or, due to its nature or content, is reasonably considered to require confidentiality (hereinafter “Confidential Information”). Confidential Information may be used solely for the purpose of fulfilling the contractual obligations and must be protected against unauthorised access. (2) The obligation of confidentiality shall not apply to information: a) that was demonstrably already publicly known or known to the receiving party at the time of disclosure, b) that becomes publicly known after disclosure without breach of this agreement, c) that was lawfully provided by third parties without an obligation of confidentiality, or d) that must be disclosed on the basis of statutory provisions, court orders or official directives. In the event of a disclosure obligation, the receiving party shall – to the extent legally permissible – inform the other party in advance. (3) Both parties agree to only entrust employees or subcontractors with Confidential Information who are bound to confidentiality and are familiar with the applicable data protection regulations. (4) SAPERED undertakes to comply with all applicable data protection laws, in particular the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). This includes the collection, processing and use of personal data exclusively for the purpose of contractual performance, based on statutory authorisations or the customer’s instructions. (5) Where SAPERED processes personal data on behalf of the customer in the course of contract performance, the parties shall conclude a data processing agreement (DPA) in accordance with Article 28 GDPR prior to the start of the processing. The responsibility for the lawfulness of the data collection and processing remains with the customer, especially when using SaaS services or uploading/processing their own content. (6) The obligations of confidentiality and data protection shall continue to apply after termination of the contractual relationship.
§ 13 – Termination
(1) If the customer terminates the contract pursuant to Section 649 of the German Civil Code (BGB) (termination for convenience prior to full performance), SAPERED shall be entitled to demand the agreed total remuneration minus a flat deduction of ten (10) percent for saved expenses. If SAPERED has already rendered services corresponding to more than 75% of the total remuneration, the full agreed remuneration shall become due. Both contracting parties retain the right to prove that the saved expenses were higher or lower. (2) The right of both parties to terminate the contract extraordinarily for good cause remains unaffected. Good cause for SAPERED shall in particular be deemed to exist if: a) the customer is in arrears with an amount exceeding ten (10) percent of the agreed total remuneration, despite a written reminder and the granting of a reasonable grace period; b) insolvency proceedings are opened or applied for over the customer’s assets, or if the customer is in a comparable financial crisis; c) the customer, despite written warning, breaches essential contractual or statutory obligations, in particular duties of cooperation, confidentiality or usage. (3) Any termination must be made in writing. Electronic text form (e.g. email) is not sufficient.
§ 14 – Written Form Clause
(1) All amendments and supplements to the contract as well as to these General Terms and Conditions – including any waiver or modification of this written form clause – must be made in writing in accordance with Section 126 of the German Civil Code (BGB) in order to be valid. Text form (e.g. email) is not sufficient. Oral or implied side agreements, assurances or contractual amendments shall be legally invalid. (2) The precedence of individually negotiated contractual terms remains unaffected (§ 305b BGB).
§ 15 – Final Provisions
(1) The place of performance for all contractual services of the parties is the registered office of SAPERED GmbH in Essen, unless expressly agreed otherwise in writing. (2) The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be the registered office of SAPERED GmbH, provided the customer is a merchant, a legal entity under public law, or a special fund under public law. However, SAPERED is also entitled to bring action against the customer at their general place of jurisdiction. (3) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and any conflict of laws provisions. (4) The assignment of rights and obligations under the contractual relationship with SAPERED by the customer requires the prior written consent of SAPERED. Section 354a of the German Commercial Code (HGB) remains unaffected. (5) Should any provision of this contract or of these General Terms and Conditions be or become invalid or unenforceable, either in whole or in part, the validity of the remaining provisions shall not be affected thereby. In such case, a valid provision shall be deemed agreed which comes closest to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event of a contractual gap.
Latest Update
May 26, 2025