Our GTCs (General Terms and Conditions)

§ 1   General provisions

1.1   mpunkt operates a business specializing in complex web development. The following Terms and Conditions apply to the business relationship between mpunkt and the customer, insofar as software is made available to the customer for use on a permanent basis (software purchase) or for a limited term corresponding to the respective contract period (software rental). These Terms and Conditions also apply to contracts in which mpunkt, at the customer’s request, assists the customer with the provision of storage space for a website (hosting) as well as the acquisition of an Internet domain, and the customer commissions mpunkt to create the website required for the customer’s official online presence and to grant the rights of use to this website, as well as to such contracts in which mpunkt creates custom software on behalf of the customer. They are divided into a general section (§ 1 General Section) and specific sections (I., II., III., IV., V., and VI., each a Specific Section), with the latter sections containing specific provisions regarding the respective concrete services provided by mpunkt. These provisions apply accordingly to pre-contractual relationships. For other deliveries and services of a different nature (e.g., hardware delivery) by mpunkt, as well as for other third-party software or hardware, additional or supplementary contractual terms may apply. For the download of applications via a central distribution platform (such as Apple’s iTunes App Store; hereinafter “distribution platform”), as well as for any payment terms and applicable costs specified there, the prices and the terms of sale and use of the operator of this distribution platform may also apply. Furthermore, separate terms and conditions of the relevant telecommunications services may apply to access to and use of the Internet or mobile network.

1.2   Even if no further reference is made to this when concluding similar contracts, these General Terms and Conditions of mpunkt shall apply exclusively in the version made available to the customer at the time the customer submits their declaration, unless the contracting parties expressly agree otherwise.

1.3    Any conflicting or additional terms and conditions of the customer are hereby rejected. Such terms and conditions shall only apply if mpunkt expressly agrees to them or parts thereof in writing.

1.4    For the purposes of these terms and conditions, customers are exclusively businesses. Businesses are natural or legal persons or partnerships with legal capacity who, when entering into a legal transaction, are acting in the course of their commercial or independent professional activity.

§ 2    Conclusion of contract

2.1    mpunkt's offers are non-binding and subject to change unless the offer is expressly designated as binding.

2.2    By ordering the service, the customer submits a binding offer to enter into a contract. mpunkt will confirm receipt of the customer's order without undue delay. This confirmation of receipt does not yet constitute a binding acceptance of the order. The confirmation of receipt may be combined with the declaration of acceptance. 

2.3    mpunkt is entitled to accept the offer to enter into a contract contained in the order within a period of 5 working days after receipt. Acceptance of the offer may also occur if mpunkt begins to provide the commissioned service.

2.4    The specific scope of services to be provided by mpunkt as requested by the customer, as well as the corresponding payment to be made by the customer, are detailed in the respective contract. The contract to be concluded refers, in this sense, to the agreements concerning the deliveries and services of mpunkt, which are based on these General Terms and Conditions and, where applicable, further appendices. The specific system requirements for using the deliveries and services of mpunkt are listed separately between the parties during the conclusion of the contract and are also indicated in the respective service descriptions, to which reference is made in the contract.

2.5    The conclusion of the contract is subject to the condition that, in the event of incorrect or improper delivery to mpunkt by its own suppliers, mpunkt may not be able to perform, or may only be able to perform partially. This applies only if the non-delivery is not the fault of mpunkt and mpunkt has concluded a specific hedging transaction with due diligence. mpunkt will make every reasonable effort to be able to provide the service. Otherwise, the payment will be refunded immediately. In the event of non-availability or only partial availability, the customer will be informed immediately.

§ 3    Renumeration

3.1    The fees agreed upon in the contract apply. Remuneration is payable plus VAT at the applicable statutory rate.

3.2    Other services expressly agreed upon as subject to remuneration will be provided by mpunkt on a time and materials basis at the general list prices applicable at the time of commissioning.

3.3    During the period of default, the customer shall pay interest on the outstanding amount at a rate of 9 percentage points above the base interest rate. The customer is generally obligated to accept the agreed payment terms. In the event of default, mpunkt is entitled, without prejudice to further claims, to temporarily suspend access to the agreed services in whole or in part. The customer will be informed of this immediately by email.

3.4    The customer has a right of set-off only if their counterclaims have been legally established, acknowledged, or are undisputed by mpunkt. The customer's right to offset contractual and other claims arising from the initiation or performance of this contractual relationship remains unaffected. The customer may only exercise a right of retention if their counterclaim is based on the same contractual relationship.

§ 4    General obligations of the customer

4.1   The customer shall promote the proper use of the software through active and appropriate cooperation. The customer shall provide mpunkt with the information and data necessary for the proper performance of the services. The customer is responsible for ensuring that the technical prerequisites for using the subject matter of the contract are met, in particular with regard to the hardware and software used, the internet connection, and current browser software. The customer shall, in particular, perform regular data backups and use up-to-date antivirus software. mpunkt is not liable for damage caused by viruses that could have been prevented by using appropriate software. The limitations of liability pursuant to Section I, Paragraph 7 of these Terms and Conditions also apply. 

4.2    The customer shall take appropriate precautions in the event that the software does not function properly, either wholly or partially (e.g., through data backup, troubleshooting, regular review of results, and contingency planning). It is the customer's responsibility to ensure the functionality of the software's operating environment.

4.3    The customer is generally obligated to comply with the applicable laws of the Federal Republic of Germany, in particular data protection and youth protection regulations, criminal law provisions, and these Terms and Conditions. Specifically, the customer is obligated to:

4.3.1    Protect the provided access data and corresponding identification and authentication mechanisms from unauthorized access by third parties and not disclose them to such third parties;

4.3.2    Not infringe the rights of third parties, in particular copyrights and related rights, trademarks, patents, and other proprietary rights, as well as personal rights;

4.3.3    Respect the privacy of others, i.e., not disseminate defamatory, threatening, violence-glorifying, harassing, harmful, racist, or otherwise objectionable content;

4.3.4    Not execute any applications that could lead to a change in the physical or logical structure of the networks, such as viruses;

4.3.5    not to use the infrastructure provided to him for unauthorized advertising purposes, in particular for the unsolicited transmission of electronic mail.

§ 5    General information on material and legal defects

5.1    As a general rule, software applications provided are subject to the explicit limitation that no software or IT infrastructure available on the market is 100% secure or 100% free of defects. This is due, among other things, to the multitude of viruses in circulation and to the fact that security risks generally exist which, depending on the current state of the art, may not yet be counteracted at all. mpunkt cannot, per se, provide protection against improper use or modification of software applications, against any infection of software components with computer viruses or other malware, or against other security vulnerabilities that are beyond mpunkt’s control or for which mpunkt is otherwise not responsible. The services provided by mpunkt do not protect against possible infringements of intellectual property rights or other unlawful activities by third parties—such as cyberattacks/hacker attacks, spying and interception of data, or other unlawful data modifications and computer sabotage.

5.2    In general, mpunkt warrants that the services it provides are free from material defects that would restrict their normal use and from any third-party rights. mpunkt warrants that the services provided by mpunkt possess the quality customary for services of the same kind and that the customer can expect based on the nature of the specific service. In accordance with the foregoing provisions of Section I § 5(1), it is expressly noted that the fault-free and unrestricted quality and functionality of the services owed by mpunkt regularly also depend on software and hardware components from third-party providers, over which mpunkt has no control. In particular, any changes to such software components or to the customer’s hardware and software environments may result in limitations on the functionality of the services provided by mpunkt. Restrictions due to technical or other problems beyond mpunkt’s control (force majeure, fault of third parties, etc.) shall not be attributed to mpunkt.

5.3    The customer is obligated to notify mpunkt immediately of any defects that arise. In the case of material defects, this notification must include a description of when the defects occurred and the specific circumstances. Any defects in the services provided by mpunkt will be remedied immediately after the customer has described the defect. If mpunkt is unable to remedy the defect within a reasonable period of time, the customer may demand a pro-rata reduction in payment. This does not apply if the defect is due to circumstances for which the customer is responsible, in particular if the customer fails to fulfill their obligation to cooperate. In the event of repeated significant defects, the customer may also terminate the contract without notice. Any further rights of the customer remain unaffected.

5.4    mpunkt does not provide any legal guarantees to the customer unless expressly agreed otherwise. 

5.5    Content posted by mpunkt on any infrastructure provided by mpunkt constitutes third-party content. The customer is legally responsible for such content.

5.6    Given the current state of technology, error-free data communication via the Internet and/or its availability at all times cannot be guaranteed. Therefore, mpunkt assumes no liability for technical defects for which mpunkt is not responsible, in particular for the constant and uninterrupted availability of the databases and their contents or for the complete and error-free reproduction of any content uploaded by the customer.

5.7    If the services covered by this contract infringe the intellectual property rights of third parties, the customer shall notify mpunkt immediately in writing and provide mpunkt with the information necessary to defend against such claims, as well as any other reasonable assistance.

§ 6    Liability

6.1    mpunkt assumes no liability for the uninterrupted availability of systems, nor for system-related failures, interruptions, and malfunctions of technical equipment and services that are not attributable to mpunkt. In particular, mpunkt is not liable for disruptions in the quality of access to services due to force majeure or events beyond its control. These include, but are not limited to, strikes, lockouts, lawful internal industrial action, and official orders. This also includes the complete or partial failure of communication and network structures and gateways of other providers and operators that are necessary for mpunkt's own service provision. mpunkt is entitled to postpone its obligations for the duration of the hindering event plus a reasonable start-up period. mpunkt assumes no liability for minor interruptions. mpunkt is also not liable for errors arising from the customer's or other third parties' sphere of risk, in particular for errors caused by improper operation or modification of the applications or other third-party software, by contamination of corresponding software components with computer viruses, use of unsuitable data carriers, faulty hardware, failure of the power supply or data lines, or for errors due to a lack of information security or unsuitable environmental conditions at the place of operation of applications.

6.2    In the case of slightly negligent breaches of duty, liability is limited to the average direct damage that is foreseeable given the nature of the goods and typical for this type of contract. This also applies to slightly negligent breaches of duty by mpunkt’s legal representatives or vicarious agents. mpunkt is not liable for slightly negligent breaches of non-essential contractual obligations. However, mpunkt is liable for the breach of the customer’s essential contractual rights. Essential contractual rights are those that the contract is intended to grant the customer according to the content and purpose of the contract. mpunkt is further liable for the breach of obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the customer may rely.

6.3    The foregoing limitations of liability do not apply to claims by the customer arising from warranties, product liability, and/or any claims based on violations of applicable data protection regulations, namely the GDPR or the BDSG. Furthermore, the limitations of liability do not apply in cases of fraud, breach of material contractual obligations, or bodily injury, damage to health, or loss of life attributable to mpunkt.

6.4    mpunkt shall not be liable for the loss of data and/or programs to the extent that the damage results from the customer’s failure to perform a data backup and thereby ensure that lost data can be restored with reasonable effort.

§ 7    Confidentiality and data protection

7.1    The customer and mpunkt mutually agree to maintain confidentiality in accordance with the following provisions.

7.2    The recipient shall treat the disclosing party’s trade secrets within the meaning of Section 2(1) of the German Trade Secrets Act (GeschGehG), as well as other confidential information—in particular economically, legal, tax, and technical data (collectively “Confidential Information”) that has been entrusted to the recipient or has come to the recipient’s knowledge—regardless of whether it has been expressly designated as confidential or not—to keep such information secret and not to disclose or reveal it. Information is not considered Confidential Information if it was known to the public or generally accessible prior to its communication or disclosure to the recipient, or becomes so at a later date without a breach of a confidentiality obligation; information that was demonstrably known to the recipient prior to disclosure and without breach of any duty of confidentiality; which were independently derived by the recipient without using or referring to the Confidential Information, or which are provided to or made available to the recipient by an authorized third party without breaching any duty of confidentiality. This obligation shall also apply for a period of five (5) years following the termination of the Agreement. The content of the Agreement itself is also covered by this obligation.

7.3    The recipient may disclose confidential information internally only to the extent necessary and to the necessary group of persons (“need-to-know”). In particular, the recipient may only make Confidential Information available to its employees who are bound by confidentiality obligations or to its advisors who are subject to professional confidentiality, provided that such persons are involved in the contractual relationship and reasonably require the information. Employees must be informed of this agreement in advance. The recipient shall take all necessary measures to ensure that all persons to whom Confidential Information is disclosed or made available treat such information in the same manner as the recipient is obligated to do.

7.4    The recipient is not authorized to use, exploit, or appropriate the Confidential Information for purposes other than those contractually agreed upon, either directly or through third parties. In particular with regard to products and items, the Recipient is not authorized to obtain Confidential Information by means of so-called “reverse engineering” through observation, examination, disassembly, or testing.
 
7.5    At the request of the disclosing party, or, if no request is made, no later than upon termination of the contract, the recipient agrees to immediately return all Confidential Information made available to him, as well as all copies and transcripts made thereof, to the disclosing party or, in consultation with the disclosing party, destroy such information. To the extent that documents containing Confidential Information have been provided in electronic form, such data must be deleted no later than upon termination of this Agreement or—if this is not technically possible—permanently blocked.

7.6    The recipient shall also protect the Confidential Information from unauthorized access by third parties through appropriate confidentiality measures and shall comply with all applicable legal and contractual data protection requirements when processing the Confidential Information. This also includes technical security measures adapted to the current state of the art (Art. 32 GDPR) and the obligation of employees to maintain confidentiality and observe data protection (Art. 28(3)(b) GDPR).

7.7    If the recipient intentionally or negligently breaches the aforementioned confidentiality obligations, the recipient agrees to pay a reasonable contractual penalty, the amount of which shall be determined by the disclosing party at its reasonable discretion and, in the event of a dispute, reviewed by the competent court. The amount of the specific contractual penalty shall be determined in particular by the degree of confidentiality of the trade secret or other confidential information in question, the degree of fault, the scope of the disclosed information, and the number of unauthorized persons to whom the information is disclosed in breach of duty.
Further claims for damages remain unaffected by this. Any contractual penalty paid shall be offset against any claims for damages. The contractual penalty represents the minimum damages.

§ 8    Changes to these Terms and Conditions

8.1    mpunkt reserves the right to amend these Terms and Conditions at any time, provided that reasonable notice of at least six weeks is given. mpunkt will notify the customer of any such amendment in writing. 

8.2    Unless the customer objects, the amended Terms and Conditions shall be deemed accepted. In the event of an objection, the contract shall continue unchanged under the previous Terms and Conditions; however, mpunkt is entitled to terminate the contract for cause.

§ 9    Other

9.1    The contractual relationship is governed by German substantive law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The customer is advised that IT services may be subject to export and import restrictions. In particular, licensing requirements may apply, or the use of the software or related technologies abroad may be subject to restrictions. Performance of the contract is subject to the proviso that there are no obstacles to performance due to national and international export and import regulations or other legal provisions.

9.2    The invalidity of any individual provision shall not affect the validity of the remaining provisions of the contract.

9.3    The exclusive venue for all disputes arising from the contractual relationship shall be the registered office of mpunkt, unless a statutory provision mandatorily prescribes a different venue.

The following terms and conditions apply when the customer purchases software.

§ 1    Subject matter of the contract

To the extent that the customer purchases software by way of a one-time payment, the subject matter of the contract is the permanent transfer of the software, together with the grant of the rights necessary for its contractual use in accordance with these Terms and Conditions, the product descriptions, and in accordance with the individual contractual agreements made by the parties in connection with the order.

§ 2    Rights of use

2.1    The Customer is granted the non-exclusive right to use the purchased software on a permanent basis, in its unmodified form, within the scope of the agreed type of use, on the devices for which it is intended. The software may only be used by the maximum number and type of authorized users (so-called clients) in accordance with the software licenses purchased by the customer. The customer may make one copy of each software product for data backup purposes. In doing so, the customer must reproduce alphanumeric identifiers, trademarks, and copyright notices unchanged and keep records of the location of the copies. Documentation may not be reproduced.

2.2    The customer may use the software on any hardware available to them. However, if the customer changes the hardware, they must delete the software from the previously used hardware.

2.3    The customer may reproduce the delivered software product to the extent that such reproduction is necessary for the use of the software. The necessary reproductions also include the installation of the software from the original data carrier onto the mass storage of the hardware in use, as well as loading it into the working memory.

2.4    The customer may permanently sell or give away the software, including the manual and any other accompanying materials, to third parties, provided that the recipient agrees to be bound by these Terms and Conditions. In the event of transfer, the customer must hand over all copies of the program, including any existing backup copies, to the new user or destroy the copies not handed over.

2.5    The reverse translation of the program code into other code forms, as well as other methods of reconstructing the various stages of the software’s creation—including modifications to the program for one’s own use—are permitted, particularly for the purpose of debugging. If the act is performed for commercial reasons, it is permissible only if it is indispensable for the creation, maintenance, or operation of an independently created computer program and the necessary information has not been published and/or is not otherwise accessible.

2.6    The customer shall ensure that the Products, their copies, and the documentation are not disclosed to third parties without mpunkt’s written consent.

2.7    The number of licenses, as well as the nature and scope of use, shall otherwise be determined in accordance with the customer’s contract offer contained in the order and mpunkt’s order confirmation based thereon, the product descriptions, and in accordance with any individual contractual agreements made between the parties.

2.8    Any use that goes beyond the contractual agreements, taking these Terms and Conditions into account, is generally not permitted. The Customer is generally not permitted to allow third parties to use the software beyond the scope of the contractual agreements.

2.9   This grant of rights does not entail any further acquisition of rights. The customer may not circumvent or remove any Digital Rights Management (DRM) used, other technical safeguards, and/or information regarding rights management.

2.10    The customer is entitled to decompile and reproduce the software to the extent necessary to ensure the software’s interoperability with other programs. However, this applies only on the condition that mpunkt has not made the necessary information available to the customer upon request within a reasonable period of time.

2.11    If the customer uses the software to an extent that exceeds the acquired usage rights qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of acquired licenses), the customer shall immediately acquire the usage rights necessary for the permitted use. If the customer fails to do so, mpunkt will assert the rights to which it is entitled.

2.12    Ownership of the delivered items and the rights under Section II § 2 shall not pass to the customer until full payment of the contractual remuneration has been made. Prior to this, the customer shall have only a provisional, contractual, and revocable right of use.

§ 3    Special obligations of the customer

The customer is obligated to inspect the software delivered by mpunkt immediately upon delivery or upon making it available, in accordance with the provisions of commercial law (§ 377 HGB), or to have it inspected by a qualified person, and to report any identified defects with a detailed description of the error. The customer must thoroughly test the software for proper functionality before commencing productive use.

§ 4    Warranty

4.1    mpunkt shall initially provide warranty for defects in the software, at its own discretion, by repair or replacement.

4.2    If the subsequent performance fails, the customer may generally, at his discretion, demand a reduction in the remuneration (price reduction), rescission of the contract (withdrawal), or damages in lieu of performance. In the case of only minor defects, the customer shall not be entitled to a right of rescission, taking into account the interests of both parties. Instead of damages in lieu of performance, the customer may demand reimbursement of futile expenses within the scope of § 284 BGB that the customer incurred in reliance on receiving the software and was reasonably entitled to incur.  

4.3    The customer must report any obvious defects in the delivered software within two weeks of receiving the software; otherwise, the assertion of warranty claims is excluded. Timely dispatch or notification is sufficient to meet the deadline. For merchants, § 377 HGB applies.

4.4    The warranty period is 1 year from delivery. The one-year warranty period does not apply if mpunkt is guilty of gross negligence, nor in the event of bodily injury or damage to health attributable to mpunkt, or in the event of the customer’s death, in the event of a guarantee, or in the event of recourse against the supplier. mpunkt’s liability under the Product Liability Act remains unaffected by this.

4.5    Notwithstanding Section II § 4(4), the standard statute of limitations applies if mpunkt has fraudulently concealed a defect.

The following terms and conditions apply when the customer leases software.

§ 1    Subject matter of the contract

Within the scope of the software lease, the subject matter of the contract (lease agreement) is the transfer of the software for a term limited to the duration of the contract, together with the granting of the rights necessary for its contractual use in accordance with these General Terms and Conditions, the product descriptions provided by mpunkt, and in accordance with any individual contractual agreements made by the parties in connection with the order.

§ 2    Rights of use

2.1    The customer is granted the non-exclusive, non-transferable, and non-sublicensable right, limited to the term of the lease agreement, to use the software in its unmodified form within the scope of the agreed-upon type of use on the devices for which it is intended. The software may only be used by the maximum number and type of authorized users (so-called clients) in accordance with the software licenses purchased by the customer.

2.2   Permitted use under this Agreement includes the installation, as well as the loading, display, and execution of the installed software.

2.3    The customer is entitled to reproduce, modify, or decompile the Software only if this is permitted by law and only if the information necessary for this purpose is not made available by mpunkt at the Customer’s request.

2.4    Beyond the cases specified in Section III. § 2, paragraphs 1 and 2, the customer is not authorized to reproduce the software.

2.5    The customer is not authorized to transfer the copy of the software provided to them or any backup copies created to third parties. In particular, the customer is not permitted to sell, lend, rent, or otherwise sublicense the software, or to publicly reproduce or make the software available.

2.6    If the customer violates any of the foregoing provisions, all rights of use granted under this agreement shall immediately become void and shall automatically revert to mpunkt. In this case, the customer must immediately and completely cease use of the Software, delete all copies of the Software installed on its systems, and delete any backup copies created or hand them over to mpunkt.

2.7    Reverse engineering of the program code into other code formats, as well as any other attempts to reverse-engineer the various stages of the software’s development—including modifications to the program for personal use—are strictly prohibited.

2.8     mpunkt may terminate the rights under Section III. § 2 for good cause. Good cause exists in particular if mpunkt cannot reasonably be expected to continue adhering to the contract, especially if the customer fails to pay the remuneration or materially violates Section III. § 2.

2.9    If the rights under Section III. § 2 arise or if they terminate, mpunkt may demand that the customer return the items provided or provide written assurance that they have been destroyed, as well as the deletion or destruction of all copies of the materials and a written assurance that this has been done.

§ 3    Remuneration

3.1    The amount of the monthly remuneration due is determined by the agreements reached between the parties in each individual case, in accordance with the contract offer contained in the engagement and the corresponding order confirmation issued by mpunkt. If the contract is not concluded on the first day of a calendar month, the rent payable for the first month is calculated pro rata based on the remaining days of the month, beginning with the day following the provision of the software.

3.2   Unless otherwise agreed between the parties, the rent for the respective month is due in advance on the 3rd business day of each month. In the first month of the rental period, the rent is due upon full provision of the software.

§ 4    Term and Termination

4.1    The contract is generally entered into for a fixed minimum term of 1, 3, or 5 years from the date of execution. The specific minimum term is determined by the agreements reached between the parties in each individual case. The contract is automatically extended for an additional 12 months unless terminated by either party at the end of the term with three months’ notice.

4.2    The lease agreement may also be terminated in writing by either party without notice for good cause. Good cause entitling mpunkt to terminate the agreement exists, in particular, if the customer infringes mpunkt’s rights of use by using the software beyond the scope permitted under this agreement and fails to remedy the infringement within a reasonable period following a warning from mpunkt.

4.3    Termination must be in writing.

4.4    In the event of termination, the customer must cease use of the software and remove all installed copies of the program from its computers, as well as, if applicable, immediately return any backup copies created to mpunkt at mpunkt’s discretion or destroy them.

§ 5    Special obligations of the customer

The customer is obligated to take appropriate measures to protect the software from access by unauthorized third parties, in particular to store all copies of the software in a secure location

§ 6    Maintenance and warranty

6.1    mpunkt warrants that the software will remain in the condition agreed upon in the contract throughout the term of the contract and that no third-party rights will interfere with the use of the software in accordance with the contract. mpunkt shall remedy any material defects or defects of title in the leased item within a reasonable time.

6.2    The customer is obligated to notify mpunkt in writing of any defects in the software immediately upon their discovery. In the case of material defects, this notification must include a description of when the defects occurred and the specific circumstances. Any defects in the services owed by mpunkt shall be remedied immediately after the customer has described the error. If mpunkt is unable to remedy the defect within a reasonable period of time, the customer may demand a pro-rata reduction in payment. This does not apply if the defect is due to circumstances for which the customer is responsible, in particular if the customer fails to fulfill their obligation to cooperate. In the event of repeated significant defects, the customer may also terminate the contract without notice. Any further rights of the customer remain unaffected.

§ 1    Subject matter of the contract

1.1    To the extent that mpunkt develops custom software on behalf of and for the customer, the subject matter of the contract is the creation of software by mpunkt for a fee, to be permanently transferred to the customer on the basis of a specification to be prepared by mpunkt, including the necessary consulting services.

1.2    In addition, Sections 631 et seq. of the German Civil Code (BGB) apply.

§ 2    Rights of use 

2.1    The customer is granted a non-exclusive right, which may be sublicensed to meet its own needs, to use the Software indefinitely, without geographical or content restrictions, in its unmodified form. 

2.2    The customer may use the software on any hardware available to them. 

2.3    The customer may permanently sell or give away the software, including the manual and other accompanying materials, to third parties, provided that the recipient agrees to the transfer of these Terms and Conditions to them as well. In the event of transfer, the customer must hand over to the new user all copies of the program, including any existing backup copies, or destroy the copies not handed over.

2.4    The reverse translation of the program code into other code forms, as well as other methods of reverse engineering the various stages of software development—including program modifications for personal use—is permitted, particularly for the purpose of debugging. If the act is performed for commercial purposes, it is permissible only if it is indispensable for the creation, maintenance, or operation of an independently created computer program, and the necessary information has not been published and/or is not otherwise accessible.
 
2.5   The customer shall ensure that the products, their copies, and the documentation are not sublicensed to third parties beyond the scope of the customer’s own needs without the written consent of mpunkt.
 
2.6    Any use exceeding the contractual agreements, taking these General Terms and Conditions into account, is generally not permitted. The customer is generally not permitted to allow third parties to use the software beyond the scope of the contractual agreements.

2.7    This grant of rights does not entail the acquisition of any additional rights. The customer may not circumvent or remove any Digital Rights Management (DRM) measures, other technical safeguards, and/or rights management information that may be in use.

2.8    The customer is entitled to decompile and reproduce the software to the extent necessary to ensure the interoperability of the software with other programs. However, this applies only on the condition that mpunkt has not made the necessary information available to the customer within a reasonable period of time upon request.

2.9    If the customer uses the software to an extent that exceeds the acquired usage rights qualitatively (in terms of the nature of the permitted use) or quantitatively (in terms of the number of licenses acquired), the customer shall immediately acquire the usage rights necessary for the permitted use. If the customer fails to do so, mpunkt shall assert the rights to which it is entitled.

2.10    Ownership of the delivered items and the rights under section IV § 2 shall not pass to the customer until full payment of the contractual remuneration has been made. Prior to this, the customer shall have only a provisional, contractual, and revocable right of use.

§ 3    Changes of services

3.1    The customer may submit written requests for changes regarding the scope of work to mpunkt. mpunkt will promptly review the requested changes to determine whether and under what conditions the change can be implemented. mpunkt may charge a fee for reviewing the change to the extent that mpunkt has previously notified the customer in writing of the resulting costs and the customer has subsequently issued the review request in writing.

3.2    To the extent that, following the review to be conducted pursuant to Section IV § 3(1) above, the Customer’s requests for changes or instructions, or other circumstances attributable to the Customer, affect the terms of the contract, in particular leading to an increased workload, the client shall notify the firm of this in writing without delay. The contracting parties shall then agree on an appropriate adjustment of the remuneration and the completion dates. If such immediate notification is not provided, mpunkt shall not be entitled to claim any adjustment of the remuneration or the completion dates. 

§ 4    Acceptance

4.1    The customer is obligated to accept the work by means of a written declaration (§ 126b BGB), provided that it meets the contractual requirements. Partial acceptances generally do not take place.

4.2    The customer may also accept the work by implication if the overall circumstances indicate that the customer accepts the performance as essentially in accordance with the contract. Circumstances that may be taken into account in the overall assessment include, in particular, the commencement of use of the work as well as the unconditional payment of the final invoice issued by mpunkt.

4.3    The work shall also be deemed accepted if mpunkt has requested the customer—setting a reasonable deadline—to accept the work and the customer has not refused acceptance within this deadline, citing at least one defect. The deadline is reasonable if the customer has been granted sufficient time to inspect the work to determine whether it has been produced in accordance with the contract or is free of material defects. A deadline set by mpunkt that is deemed too short in a specific case shall trigger the commencement of a reasonable deadline.

4.4    If the service does not comply with the contract and the customer therefore justifiably refuses acceptance, or if acceptance is granted subject to the rectification of defects to be specified, mpunkt is obligated to immediately provide a service in accordance with the contract and to remedy the defects, to notify the customer of the expected duration of the defect remediation, and to notify the customer of the completion of the remedial work upon its conclusion.

4.5    The parties may agree on partial acceptance by mutual consent and in writing. The legal effect of partial acceptance is limited to the due date of payments in accordance with project progress.

§ 1    Subject matter of the contract

1.1    To the extent that the customer commissions mpunkt to provide web hosting services pursuant to the contract to be concluded in accordance with these General Terms and Conditions, the subject matter of the contract is the provision of services to make content accessible via the Internet. To this end, mpunkt provides the customer with system resources on a virtual server. The customer may store content on this server in accordance with the technical specifications agreed upon between the parties in each individual case, which form an integral part of the contract.

1.2    On the server, the content is made available for retrieval via the Internet at the Internet address to be provided by the customer. mpunkt’s services regarding data transmission are limited solely to data communication between the transfer point of its own data communication network operated by mpunkt and the Internet, and the server provided to the customer. mpunkt has no control over data traffic outside its own communication network. Successful transmission of information to or from the computer requesting the content is therefore not guaranteed in this respect.

1.3    mpunkt provides the aforementioned services with an overall availability of 98%. Availability is calculated based on the time allocated to each calendar month during the contract period, minus the maintenance periods defined below. mpunkt is entitled to perform maintenance work to a reasonable extent. During maintenance work, the aforementioned services are not available.

1.4    The contents of the storage space allocated to the customer are backed up by mpunkt on a daily basis. Data backup is performed on a rolling basis such that the data backed up for a given weekday is overwritten during the data backup performed on the following weekday. A weekly data backup is performed according to the same principle, in which the data is also overwritten on a rolling basis after 4 weeks. The backup is always performed for the entire server content and may also include data from other customers. The customer therefore has no claim to the handover of any of the backup media, but only to the restoration of the backed-up content to the server.

1.5    mpunkt is entitled to adapt the hardware and software used to provide the services to the current state of the art. If, as a result of such an adaptation, additional requirements arise for the content stored by the customer on the server in order to ensure the provision of mpunkt’s services, mpunkt shall notify the customer of these additional requirements. The customer shall decide immediately upon receipt of the notification whether the additional requirements are to be met and by when this will be done. If the customer does not declare by no later than 2 weeks before the migration date that they will adapt their content in time for the migration, i.e., no later than 7 business days before the migration date, mpunkt shall have the right to terminate the contractual relationship effective as of the migration date.

1.6    If mpunkt has provided the Ccstomer with static IP addresses, mpunkt may change the IP addresses assigned to the customer if this becomes necessary for technical or legal reasons. The customer will be informed of the upcoming change without delay.

§ 2    Customer’s obligations to cooperate

2.1    The customer agrees not to store any illegal content on the provided storage space that violates laws, regulatory requirements, or the rights of third parties. The customer shall ensure that the Internet address selected by him, under which the content can be accessed via the Internet, also does not violate any laws, official regulations, or the rights of third parties. The customer shall further ensure that any programs, scripts, or similar items installed by them do not jeopardize the operation of the server or mpunkt’s communication network, or the security and integrity of other data stored on mpunkt’s servers. The customer shall indemnify mpunkt against any claims by third parties, including any costs incurred as a result of such claims.

2.2   In the event of an imminent or actual breach of the foregoing obligations, as well as in the event that third parties assert claims against mpunkt—which are not manifestly unfounded—demanding the cessation of the full or partial provision of the content stored on the server via the Internet, mpunkt is entitled, taking into account the legitimate interests of the customer, to temporarily suspend the connection of this content to the Internet in whole or in part with immediate effect. mpunkt will inform the customer of this measure without delay.

2.3    If programs, scripts, or similar items installed by the customer endanger or impair the operation of mpunkt’s server or communication network, or the security and integrity of other data stored on mpunkt’s servers, mpunkt may deactivate or uninstall these programs, scripts, etc. If necessary to eliminate the threat or disruption, mpunkt is also entitled to interrupt the connection of the content stored on the server to the Internet. mpunkt will inform the customer of this measure without delay.

2.4    To access the storage space designated for the customer, the customer will receive a user ID and a changeable password. The customer is required to change the password at regular intervals, but at least once a year. The password must be at least 8 characters long and contain at least one letter, one number, and one special character. The customer may only disclose the password to persons whom they have authorized to access the storage space. If the password is entered incorrectly three times in a row, access to the storage space will be blocked to prevent misuse. The customer will be notified of this. mpunkt will then assign the customer a new password. In this case, mpunkt is entitled to reassign not only the password but also the user ID.

2.5    The content stored by the customer in the storage space designated for them may be protected by copyright and data protection laws. The customer grants mpunkt the right to make the content stored by the customer on the server accessible via the Internet upon request, in particular to reproduce and transmit it for this purpose, as well as to reproduce it for the purpose of data backup. The customer is solely responsible for verifying whether their use of personal data complies with data protection requirements.

§ 3    Fees

3.1    The fees for the services provided by mpunkt are based on the price list in effect at the time the contract is concluded.

3.2    mpunkt is entitled to amend the price list on which the services are based. mpunkt shall inform the customer of any changes to the price list in writing no later than 2 weeks before the changes take effect. If the customer does not agree to the change in the price list, they may terminate this contractual relationship extraordinarily as of the date on which the change in the price list is intended to take effect. The termination must be in writing. If the customer does not terminate the contractual relationship at the time the price change takes effect, the price change shall be deemed to have been accepted by the customer. mpunkt will specifically draw the customer’s attention to the intended significance of their conduct when notifying them of the price change.

3.3    The provision of services by mpunkt is contingent upon the customer fulfilling their payment obligations in a timely manner. If the customer is in default for two consecutive months with the payment of a not insignificant portion of the remuneration owed, mpunkt may terminate the contractual relationship for good cause without observing a notice period.

§ 4    Term of the agreement

4.1    The contractual relationship between mpunkt and the customer is of indefinite duration and may be terminated at any time after one year has elapsed, provided that written notice is given 30 days in advance, effective at the end of a calendar quarter.

4.2    The right to terminate for cause remains unaffected.

4.3    Upon termination of the contractual relationship, mpunkt shall make the content stored in the storage space designated for the customer available to the customer on a data carrier or via remote data transmission for a period of 2 weeks. Any rights of retention on the part of mpunkt remain unaffected.

§ 1    Subject matter of the contract

1.1    To the extent that the customer commissions mpunkt to create websites pursuant to a contract to be concluded on the basis of these General Terms and Conditions, the subject matter of the contract is the development of a concept for the customer’s website by mpunkt, as well as the creation of said website, including the corresponding documentation.

1.2    mpunkt shall, on behalf of and in the name of the Customer, ensure that the website is published on the World Wide Web, is accessible via the Internet, and is discoverable in search engines. To the extent separately agreed between the parties, mpunkt shall, upon request, assist the client in commissioning the provision of storage space for the website (hosting) and in procuring an Internet domain

1.3    In addition, Sections 631 et seq. of the German Civil Code (BGB) shall apply.

§ 2    Project phases

2.1    The development and creation of a website by mpunkt requires close cooperation between the contracting parties. In the interest of a structured project process, it is agreed that the development and creation of the website covered by this contract shall take place in five phases in accordance with the following paragraphs 2 through 6.

2.2     Requirements specification: mpunkt shall first develop a requirements specification for the website. This is based on the client’s specifications regarding the scope, functionality, and structure of the website, taking into account the target groups to be addressed by the website. In developing and specifying the client’s requirements, mpunkt will provide the client with appropriate support. The requirements specification shall set forth, to an appropriate extent, both the requirements for the website’s graphic design and the requirements applicable to software programming.

2.3    Concept phase: Based on the requirements specification, mpunkt develops a concept for the website’s structure. This structure includes a directory of the hierarchical organization of the individual pages (structure tree), the definition of any frame concept, the placement of hyperlinks, and the integration of email windows, advertising banners, animations, social media links, and, where applicable, photos, logos, graphics, videos, and other applications. Furthermore, the technical foundation of the website must be defined, i.e., for example, the selection of a content management tool, design templates, or standard solutions.

2.4    Design phase: Based on the concept agreed upon with the client, mpunkt creates a basic version of the website. This basic version must clearly demonstrate the website's structure, include all essential design features, and provide the necessary basic functionalities. These basic functionalities include, in particular, the functionality of the hyperlinks connecting the individual web pages, the implementation of a frame concept, and the integration of email windows, advertising banners, and any desired animations.

2.5    Completion phase: Based on the basic version of the website agreed upon with the client, mpunkt completes the website in a usable format.

2.6    Maintenance phase: After the website is completed and launched on the World Wide Web, mpunkt will continuously update and maintain the website according to the client's specifications and in consultation with the client, provided the client concludes a separate website maintenance agreement with mpunkt.

§ 3    Customer consultation

3.1    mpunkt undertakes to advise the customer on both the design options and the possible functionalities of the website, in accordance with the current state of the art. During the consultation, mpunkt will consider which target groups the website is intended to reach and what purposes the customer pursues with the website overall. mpunkt will inform the customer about the advantages and disadvantages of individual design and functional features, as well as about general insights mpunkt has gained regarding the habits and needs of internet users and users of mobile services – e.g., with regard to loading times and the weighting of text and graphic elements.

3.2    articular, mpunkt is not obligated to gain specific insights into the habits and user behavior of individuals belonging to the website's target groups through surveys, studies, or other means of market research.

3.3    mpunkt does not owe the customer any advice on legal matters, including the requirement and content of legal notices or data protection notices.

§ 4    Design Services

4.1    Unless otherwise agreed in a specific case, mpunkt is obligated to develop or select (as a licensed product/template) a proposal for the graphic design of the website or to select licensed products (templates). In doing so, mpunkt will – if requested by the client – ​​take into account specifications arising from the client's corporate design.

4.2    mpunkt will ensure appropriate design quality for the website and, within the framework of the client's specifications, will consider current knowledge about practices, trends, and developments in the field of web design, as well as in the field of general graphic design.

§ 5    Software programming

5.1    mpunkt undertakes to program software that implements both the individually agreed-upon functionalities and the graphic design coordinated with the client. mpunkt will use programming languages ​​and techniques that correspond to the current state of the art and, where possible, will employ standard solutions.

5.2    mpunkt will coordinate with the client regarding the screen resolution, internet browsers, and mobile applications for which the website is to be optimized.

§ 6    Contents

6.1    The customer shall provide mpunkt with the content to be integrated into the website. The customer is solely responsible for the creation of this content. mpunkt is not obligated to verify whether the content provided by the customer is suitable for the purposes of the website or whether it infringes upon the rights of third parties. mpunkt is only obligated to inform the customer of obvious defects in the content.

6.2    The content to be provided by the customer includes, in particular, the texts, images, logos, tables, graphics, and videos to be integrated into the website. mpunkt will agree with the customer, at the latest before the completion of the concept phase, on the format in which the customer will provide the content to be integrated. It must be agreed whether the content will be provided by the customer in digital, printed, or other form. If the provision of content to the customer in digital form is agreed upon, the file format to be used must also be agreed upon.

6.3     The customer is responsible for verifying the legal compliance of the content he provides and for checking that the website as a whole complies with applicable legal regulations, in particular with regard to legal notices and data protection information.

§ 7    Acceptance

7.1    The customer is obligated to accept the following partial services by declaration in text form (Section 126b of the German Civil Code), provided they meet the contractual requirements:

•    Requirements catalog (Section 3 Paragraph 2 of these Terms and Conditions);
•    Concept (Section 3 Paragraph 3 of these Terms and Conditions);
•    Basic version of the website (Section 3 Paragraph 4 of these Terms and Conditions);
•   Website (Section 3 Paragraph 5 of these Terms and Conditions).

7.2    mpunkt will provide the customer with the respective work results and request that they be reviewed within a reasonable timeframe and that acceptance be declared.

7.3    The customer may also accept the respective work results implicitly if the overall circumstances indicate that the customer accepts the respective service as substantially conforming to the contract. Such circumstances, which may be taken into account in the overall assessment, include in particular the commissioning of the work and the unconditional payment of the final invoice issued by mpunkt.

7.4    The respective work results are also deemed accepted if mpunkt has requested acceptance from the customer—setting a reasonable deadline—and the customer has not refused acceptance within this deadline, specifying at least one defect. A deadline is considered reasonable if the customer is given sufficient time to inspect the work to determine whether it has been produced in accordance with the contract and is free of significant defects. If the deadline set by mpunkt is too short, it will be replaced by a reasonable deadline in the individual case.

§ 8    Customer's duty to cooperate

8.1    The customer is also obligated, within reasonable limits, to cooperate appropriately in the development, production, and optimization of the website that is the subject of this agreement. In particular, the customer is also obligated to provide the information necessary for the development, production, and maintenance of the website.

8.2    If test runs, acceptance tests, presentations, or other meetings become necessary or expedient, the customer will provide qualified employees to participate in the meetings who are authorized to make all necessary or expedient decisions.

8.3    If mpunkt provides the customer with proposals, drafts, test versions, or similar materials, the customer will conduct a prompt and thorough review to the extent reasonable. The customer will notify mpunkt of any complaints or change requests immediately, providing as precise a description of the error/change request as possible.

8.4     The customer will provide mpunkt with the titles of the individual website pages, some keywords for each page, and a description of each page (titles, keywords, descriptions) no later than immediately after completion of the draft phase, so that mpunkt can integrate the titles, keywords, and descriptions into the source code using meta tags, if necessary.

8.5    If necessary, the customer will provide mpunkt with the following access and contact information for the duration of the collaboration and will notify mpunkt immediately of any changes to this access:

• Administrator access to all installations
• FTP access data
• KIIS access data
• Domain management data
• Host provider data

§ 9    Renumeration

9.1    The remuneration for services provided by mpunkt is based on the price list valid at the time of conclusion of the contract. Unless otherwise agreed between the parties, mpunkt's services will be remunerated based on time spent at the hourly rate valid at the time of conclusion of the contract, plus statutory VAT per hour. Time spent will be billed in increments of 0.25 hours (15 minutes). mpunkt is obligated to maintain timely and transparent time records.

9.2    Unless the parties agree otherwise in advance in a specific case, mpunkt is only entitled to invoice the client separately for travel expenses. There is no other entitlement to separate reimbursement of expenses. mpunkt will invoice travel expenses in the amount of reasonable and documented travel and accommodation costs. When using a private vehicle, billing will be based on the tax-deductible mileage allowance. Furthermore, the right to reimbursement of travel expenses only exists if the distance between mpunkt's headquarters and the destination is at least 50 km.

9.3    mpunkt is entitled to invoice the customer for partial payments at reasonable intervals. The amount of the partial payments is based on the value of the services already rendered by mpunkt. Hourly rates will be invoiced to the customer every 14 days. All invoices are due for payment within ten business days of receipt by the customer.

9.4    mpunkt is entitled to amend the price list underlying the services. mpunkt will inform the customer of any changes to the price list in writing at least two weeks before the changes take effect. If the customer does not agree to the price list amendment, they may terminate this contractual relationship with immediate effect as of the intended effective date of the price list amendment. Termination must be in writing. If the customer does not terminate the contractual relationship as of the effective date of the price change, the price change will be deemed accepted by them. mpunkt will specifically draw the customer's attention to the intended significance of their conduct when notifying them of the price change.

§ 10    Rights of use

10.1    Unless otherwise agreed, the customer receives a non-exclusive, perpetual right to use the work results provided by mpunkt for their own purposes. mpunkt grants the customer the necessary rights for the intended use as a simple right of use. Use is permitted only upon revocation until full payment of the remuneration owed to mpunkt for their services has been received.

10.2    Copyright notices will be included in the website at appropriate locations. The customer is not entitled to remove these notices without mpunkt's consent.