General Terms and Conditions of elio GmbH
elio GmbH
Perchstetten 1
35428 Langgöns
E-mail: info@elio-systems.com
Website: elio-systems.com
Managing Director:
Sascha Vorderstemann
Register court: County court Gießen
Registration number: HRB 7272
Sales tax ID: DE 271 233 703
1. Offers are subject to change without notice. A contract is only concluded upon a written order confirmation by elio GmbH. The sending of an invoice is equivalent to an order confirmation.
2. elio GmbH strives to keep all offered services always up to date with the latest technical developments and to ensure the greatest possible accessibility of its website for its customers. Since software errors can never be completely excluded according to the state of the art and the accessibility of the website also depends on factors over which elio GmbH has no influence (compatibility of browsers etc.), no guarantee can be given for 100% accessibility at any time. Basically, an accessibility of 95-98% is guaranteed.
3. The concrete content and scope of services will be negotiated by the parties before the order is placed and will be recorded in writing or in text form. On the basis of this service description elio GmbH first develops a concept. For the realization it requires the customer‘s approval. There is no obligation for approval. In case of approval the order is concluded on the basis of the service description, the developed concept and these GTC. Subsequent changes and additions are only possible with the consent of both parties; they must be made in writing or in text form.
4. Delivery and service deadlines shall be reasonably extended in case of force majeure or other impediments for which elio GmbH is not responsible, as well as in case of customer requests for changes during the implementation of the project, provided that such changes have a significant impact on the delivery or service. elio GmbH shall inform the customer upon request, but is not obliged to.
5. The agreed remuneration is a budget based accounting system (hourly and daily rates), which are calculated according to the current price list. In case of subsequent changes to the scope of services due to customer requests elio GmbH may demand additional remuneration. In this case elio GmbH will inform the customer about the additional remuneration. The customer will be charged for any additional services which elio GmbH purchases from external third parties upon the customer‘s request, especially software as well as services, plugins, domains, hosting. In this case the order regarding the change of the scope of services is only concluded if the parties have reached an agreement. Fees charged to elio GmbH within the scope of a project or service agreement are charged at the usual hourly rates and expenses for communication and correspondence. All prices are net plus the statutory value added tax. The remuneration is due upon acceptance. If partial acceptances have been agreed upon, the pro rata remuneration for the respective service section is due with each partial acceptance. In this case, the respective service sections to be accepted and the remuneration due for them shall be agreed in writing. In the event of default of payment, default interest shall be charged. We reserve the right to assert further damages caused by default.
6. elio GmbH is authorised to assign claims against contractual partners based in Germany and EU countries to abcfinance GmbH, Kamekestr. 2-8, 50672 Cologne, for refinancing purposes. The contractual partner will be informed upon conclusion of the contract whether the claim will be assigned. In these cases, payments with debt-discharging effect can only be made to abcfinance GmbH. The contractual partner will be informed of their bank details when the contract is concluded.
7. Tickets that are not answered within two weeks will be considered as settled and will be closed. In this case the service provided by elio GmbH is considered accepted by the contractor.
8. Training courses are held at elio GmbH. The customer may organise the training on its premises if it provides the necessary technical equipment. The customer must then additionally pay for the travelling time and travel costs of the training personnel in accordance with the current price list of elio GmbH.
elio GmbH may cancel a training date for good cause. elio GmbH will inform the customer of the cancellation of a date in good time and offer alternative dates.
9. The customer may only set off claims of elio GmbH against undisputed claims, claims that are ready for judgement or claims that have been recognised by declaratory judgement. Among merchants, the assertion of a right to refuse performance or a right of retention against elio GmbH is excluded.
10. elio GmbH warrants that, subject to the restriction set forth in clause 2, the products have the agreed characteristics and are not afflicted with defects that reduce or cancel the value or suitability for the intended use. However, an insignificant reduction of the value or the suitability for the intended use shall not be considered.
The warranty for damages caused by the customer is excluded. Any liability is excluded for products (websites etc.) that have been used or modified by the customer contrary to the purpose of the contract or an explicit instruction by elio GmbH.
In case of a material defect or the absence of a warranted characteristic the customer shall first demand rectification. If the rectification of defects fails three times, the customer may demand the rescission of the contract or the reduction of the agreed remuneration, in case of the absence of a warranted quality, the customer may demand damages for non-performance according to the statutory provisions. In this case, the customer must have the benefits derived credited to his claim for payment.
This claim for compensation for use is calculated according to the ratio between the agreed price and
the normal period of use of a website on the one hand and the actual trouble-free period of use on the other. The normal period of use of a website, the online store is considered a period of 6 months. The time between final acceptance and notification of defects by the customer shall be deemed to be the period of trouble-free use. The warranty period shall be six months; it shall also apply to claims for compensation for consequential damage caused by defects, provided that no claims in tort are asserted. All warranty periods generally begin with the final acceptance of the finished website / other product by the customer. If partial acceptances have been agreed upon, the warranty period for the respective accepted sub-areas begins with partial acceptance. Errors that only occur when interconnecting with other sub-areas will always be attributed to the last sub-area added and accepted.
11. elio GmbH is only liable for intent and gross negligence, in case of violation of essential contractual obligations also for slight negligence. Liability is limited to foreseeable damages typical for the contract. This limitation of liability applies in particular to damages that do not occur to the subject matter of the contract itself or to financial losses of the customer such as lost profits, savings that did not materialize etc. elio GmbH undertakes to carefully select and instruct its vicarious agents. Furthermore, elio GmbH is only liable for intent and gross negligence of its vicarious agents.
12. In the event of injury to life, limb and health and in the event of claims under the Product Liability Act, the statutory provisions shall apply without restriction.
13. elio GmbH warrants that the contractual use of all deliveries and services provided does not infringe upon the intellectual property rights of third parties. elio GmbH will indemnify its customers from all claims and demands and defend them against all claims asserted due to an infringement of third party intellectual property rights. If a defense can only be made by the customer for legal reasons, elio GmbH will bear the costs incurred in this connection. In this case the customer has to follow the instructions of elio GmbH regarding the defense. This also applies to the selection of a possible attorney of record. The obligation
to bear the costs is conditional on the customer obtaining and following elio GmbH‘s instructions before taking any measures.
elio GmbH is entitled to carry out at its own expense any changes required due to third party property right claims as long as this does not cause any significant deviations from the line description. elio GmbH is not liable for the infringement of third party property rights if such infringement is due to materials (photos, texts etc.) provided by the customer. The customer shall indemnify elio GmbH from all claims for damages resulting from this. If, according to the service description, third parties should be able to upload contents to the webpage, online stores, elio GmbH shall not be responsible for the contents of third parties. Both parties to the contract are obliged to notify the other party immediately in writing if claims are asserted against them due to the infringement of third party property rights.
14. Any liability for the technical security of the website, interruptions of access and data loss caused by the provider is excluded unless elio GmbH has acted with intent or gross negligence. elio GmbH will, however, support the customer in enforcing claims for damages against the provider and will assign to the customer its own claims for damages against the provider resulting from this. If the selection of the provider is based on advice provided by elio GmbH, careful selection is guaranteed. The customer has to take care of a comprehensive data backup after the online installation / acceptance. In case of violation of this obligation elio GmbH shall not be liable for data loss and the consequential damages resulting therefrom.
15. The customer will hand over the documents to be provided by him for the creation of the Internet presence as soon as possible. The documents necessary for the creation of the concept must be available at the beginning of the work on the concept. The deadlines for handing over the further documents will be agreed between the parties. elio GmbH is not liable for delays resulting from a breach of this obligation by the customer. elio GmbH may request a written confirmation from the customer that the materials provided by the customer for the respective subdivision are complete and up-to-date.
16. Both contracting parties shall appoint contact persons who are responsible for the project and who represent the contracting party with regard to all issues related to the project. In order to ensure the continuity of work within the project, elio GmbH will change the responsible contact person only with the customer‘s consent. The customer will not refuse his consent if the replacement is urgently required.
17. Each party is entitled to extraordinary termination if it is unreasonable to expect the other party to adhere to the contract due to serious or repeated and persistent breaches of contract by the other party. In the case of repeated and persistent breaches of contract, this requires that they be repeated despite at least one prior written warning. In addition, each party is entitled to terminate the contract without notice if an application for insolvency is filed against the assets of the other party and is not rejected as unfounded within four weeks, and if insolvency proceedings are opened or dismissed for lack of assets.
18. Only upon full payment of the remuneration does elio GmbH transfer a non-exclusive right of use, unlimited in space and time, to all parts of the overall performance that are eligible for protection. This license of the customer shall include all copyrighted rights of use which the customer requires for the usual use presupposed at the time of conclusion of the contract. Without a separate written agreement the customer shall not be entitled to modify copyright-protected services of elio GmbH or to pass on drafts, concepts and plans to third parties. The right to grant sublicenses is also subject to the prior written consent of elio GmbH. elio GmbH is entitled to affix a copyright notice in the customary form and design.
In the event that no maintenance contract is concluded with elio GmbH for a website designed by elio GmbH or if an existing maintenance contract is terminated, elio GmbH has the option, for a fee, to provide the customer with all documentation required for updating and maintaining the website and the online store. The areas which are to be accessible for the update result from the service description according to item 3.
The final acceptance of the product takes place after completion of the final version and before activation in joint inspection of the webpage, the online store in online use. Before the acceptance the customer will be instructed in the use of the product, if necessary. If partial acceptances are agreed upon, then the customer can require the de-energization of the in each case accepted subranges. The acceptance takes place on the basis the performance specification provided after number 3. With the final acceptance also the operability of the interconnection of all subranges is to be examined. If the product turns out to be unacceptable, elio GmbH will remedy the defects within a reasonable period of time. The acceptance test shall be repeated within three weeks after the notification of the successful elimination of defects. The activation of the web page, the online store always results in the confirmed final acceptance by the customer.
Upon performance or premature termination of the contract, each party shall immediately return all objects and documents of the other party. Data of the other party recorded electronically or on paper shall be either returned or destroyed at the request of the other party.
19. After completion and installation of the software, the software shall be accepted. The Client shall accept the software within a period of one month from the date on which the Contractor has notified the Client in writing that the software is functional. If the Contractor also owes the installation of the software, the period shall begin with the completed installation of the software and a corresponding notification in writing or text form.
Acceptance of the service requires a functional test. The functional test has been carried out successfully if the software fulfils the agreed requirements. If the software proves to be unacceptable, elio GmbH will rectify the defects within a reasonable period of time.
The type, scope and duration of the functional test are determined by the project managers before it is carried out, unless a corresponding agreement is already contained in the service description or other annexes to the contract.
During the functional test, the Client shall notify the Contractor immediately of any deviations of the delivered customisation service from the performance requirements. If the functional test is carried out successfully, acceptance must be declared immediately.
A functional test shall be deemed successful if there are either no or only minor defects or if all acceptance criteria agreed between the project managers before the acceptance procedure are met.
20. Upon fulfilment or premature termination of the contract, each party shall return all items and documents to the other party without delay. Data held electronically or on paper by the other party shall either be returned or destroyed at the request of the other party.
21. Both parties undertake to treat all information about the other party received in the course of the performance of this contract as strictly confidential. This does not apply to information that is generally accessible or has been published. The collection, processing and storage of data is carried out exclusively in accordance with the provisions of German data protection law. Our privacy policy at https://www. elio-systems.com/datenschutz applies. Both contracting parties undertake to comply with the statutory provisions on data protection. In particular, they will oblige their employees to comply with data secrecy in accordance with § 5 BDSG.
22. German law shall apply. If the client is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of fulfilment and jurisdiction for all disputes arising from and in connection with this contract is the registered office of elio GmbH.
23. Contract supplements, amendments and ancillary agreements must be made in writing. This also applies to the cancellation of the written form requirement. Should any provision of this contract be invalid, this shall not affect the validity of the remaining provisions. Transmission in text form, in particular by fax or e-mail, is also sufficient to fulfil the written form requirement.
24. The client agrees to the inclusion of these terms and conditions for future legal transactions. These Terms and Conditions shall be deemed to have been incorporated in the version available at https:// www.elio-systems.com/en/conditions at the time of submission of the Customer‘s declaration without transmitting them to the Customer.
25. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract unless their validity is expressly agreed to in writing