Roser Growth

Allgemeine Geschäftsbedingungen

Last revision: 09 Dezember 2023

§ 1 General

These terms and conditions shall only apply to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law. They shall apply not only to the contractual relationship into which they have been incorporated, but also to all future business relationships if we do not refer to any other terms and conditions.

Deviating, conflicting or supplementary terms and conditions of the customer shall not become part of the contract, even if we are aware of them, unless we expressly agree to their validity. These terms and conditions shall also apply if we perform the service to the customer without reservation in the knowledge of terms and conditions of the customer that are contrary to or deviate from our terms and conditions or additional terms and conditions.

§ 2 Conclusion of contract

Our offers are subject to change. By accepting an offer, the customer makes a binding declaration that he wishes to order the services indicated. We shall be entitled to accept the contract offer submitted with the customer’s order within one week of receipt. The acceptance can be declared either expressly or by the beginning of the processing of the order.

Insofar as services of third parties are the subject matter of the order, these are subject to the reservation of self-delivery. If the services are not available for reasons which were not foreseeable for us at the time of conclusion of the contract, or if we are not supplied by a supplier through no fault of our own, we shall have the right to withdraw from the contract in this respect.

Only the specifications in our offer and any attachments thereto shall be deemed agreed as the quality of our performance. Any public statements, recommendations or advertisements deviating therefrom shall not constitute a contractual statement of the quality of the performance.

§ 3 Dates

Stated delivery or performance dates are non-binding unless they are expressly designated by us as binding. If there is a risk that agreed deadlines will not be met, we will inform the customer of this without delay, stating the reasons and the possible duration of the delay.

§ 4 Optimization of web pages and advertising measures, consultation

For services with the aim of improving the placement of a website in search engines or the optimization of advertisements, we owe a concrete effort to the best of our knowledge and belief and the generally accepted state of the art, but do not owe a concrete success. The placement of search results within a search engine service is at the discretion of the respective search engine operator and may change at any time due to reweighting or changes in ranking factors. For our activities, we will accordingly take into account the factors known to us for the weighting of search results or display of advertising, but we cannot exclude the possibility that a change in ranking factors at any time may result in a change in placement.

Unless otherwise agreed, contracts pursuant to paragraph 1 have a minimum term of 6 months. They shall be extended by a further 6 months in each case if the contract is not terminated with 2 months’ notice to the end of the contract term. Otherwise, the right of termination is excluded. The right of termination for good cause remains unaffected.

§5 Changes and Additions to the Service

The customer may request changes and additions to the service at any time up to acceptance of the software if these are technically feasible and reasonable for us. We will examine such change requests within a reasonable period of time and inform the customer of the result together with any resulting costs and postponements of deadlines in the form of a binding offer. During an ongoing service change procedure, we shall continue the services ordered to date as scheduled, unless the customer instructs us in writing that the work is to be discontinued or restricted until a decision is made on the service change.

§ 6 Partial Deliveries

We are entitled to make partial deliveries if this is reasonable for the customer according to the circumstances recognizable at the time of conclusion of the contract.

§ 7 Obligations of the customer

The customer undertakes to support our activities to the extent required. In particular, he shall provide, free of charge, all technical, personnel and spatial conditions incumbent upon him which are necessary for the proper performance of the contract. At our request, he shall provide us with all data and information from his sphere which we require from him for the purpose of the contract. During the term of the contract, the customer shall appoint an informed and competent contact person.

Any agreed due dates and periods shall be extended by the time during which the customer, despite a reminder, delays an act of cooperation incumbent upon him or is otherwise responsible for the impediment and this impedes our performance of the service. A reminder shall not be required if we have already set a reasonable deadline when requesting cooperation or if a delivery date has been agreed.

The customer shall inform us without delay of any disruptions or defects in our performance and in this context shall describe the disruption or defect as precisely as possible, giving the information known to it and relevant to it. Insofar as the customer is not reasonably able to provide us with this information, this shall be irrelevant to our obligation to perform.

The customer guarantees that he has the necessary rights to all data, information, documents, graphics, etc. handed over to us and that their use in accordance with the contract does not conflict with any rights of third parties or laws. He shall indemnify us against all claims of third parties which they assert against us due to a violation of sentence 1.

The customer is obligated to create a current back-up of his systems before granting us access to them. He shall inform us in text form against confirmation if no back-up of his data is available. This shall not apply if we have been commissioned with the data backup.

§ 8 Remuneration

The fees agreed with the customer shall apply to our services. If no fee has been agreed with the customer for a service, our current price list shall apply; alternatively, a customary fee shall be deemed to have been agreed.

All prices quoted by us are net prices and are in euros. If we render our services abroad on the basis of the agreement with the customer, the customer shall bear all taxes, customs duties or other charges incurred abroad. In this respect, the customer undertakes to provide us with all necessary tax certificates, tax assessments and all other documents required by us in order to meet their tax obligations abroad and in Germany.

Purchase prices are due upon conclusion of the contract. In the case of contracts for work and services, we shall be entitled to demand advance payments amounting to 50% of the agreed remuneration. For contracts for work and services, the due date of further advance payments shall be governed by the provisions of Section 632a of the German Civil Code (BGB). The following provisions shall apply to the invoicing of further fees.

If invoicing has been agreed on the basis of time spent, our services shall be invoiced monthly in arrears on the basis of hours actually worked in units of 6 minutes. The corresponding invoices shall be accompanied by a time estimate showing the services billed. Any objections to the time schedule must be raised within four weeks of receipt, otherwise they shall be deemed to be approved and correct.

Agreed lump sums shall be invoiced in advance in each case.

Activities during nighttime from 18:00 to 09:00 as well as on weekends and holidays at our headquarters require a separate agreement. For work performed at night, the agreed hourly rates shall be increased by 50%. For work at weekends and on public holidays, the agreed hourly rates shall be increased by 100 % and for work between 6:00 p.m. and 9:00 a.m. on these days by 150 %.

Travel time will be billed at the agreed rates if we do not use the travel time for other billable services. Travel costs, costs for accommodation as well as other expenses will be invoiced additionally against proof. Travel by car will be charged at 0.50 Euro net/km. No travel expenses will be charged for travel within 10 km from our registered office.

In the event of termination of a contract for work and services by the customer, we shall be entitled to full remuneration for services already rendered. For services not yet rendered, we are entitled to 30% of the outstanding remuneration. The customer reserves the right to prove that the share to which we are entitled in accordance with § 648 BGB is lower than the above-mentioned percentage. We reserve the right to prove that the share to which we are entitled pursuant to § 648 BGB is higher than the aforementioned percentage.

Payments may be offset against the oldest invoice due, even if the customer has stipulated repayment to the contrary.

We are entitled to send invoices to the customer in digital form.

§ 9 Liability

Liability for intent and gross negligence is unlimited.

In the event of a breach of material contractual obligations due to simple negligence, the amount of liability shall be limited to foreseeable and contract-typical damages. Essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the injured party may regularly rely. The limitation period for claims under this paragraph is one year.

Paragraph 2 shall not apply to claims arising from injury to body, health or life, in the event of fraudulent action, in the event of the assumption of a guarantee and for claims under the Product Liability Act.

In all other respects, liability – on whatever legal grounds – shall be excluded.

§ 10 Claims for defects

Insofar as the customer is entitled to claims for defects, we shall be entitled to choose the type of subsequent performance within the statutory limits.

The limitation period for claims based on defects shall be one year. This period shall not apply to claims for damages due to the infringement of claims for defects; in this respect, the regulations on liability shall apply.

If the customer complains about the existence of defects and if, as a result of our resulting activity, it turns out that there was no defect, we shall be entitled to invoice our corresponding expenditure according to the agreed hourly rates or, in the absence of an agreement, according to our general hourly rates.

§ 11 Offsetting and retention rights, assignment

The customer shall only be entitled to set-off with undisputed or legally established claims. The customer shall only be entitled to exercise rights of retention with undisputed or legally established claims from the same legal relationship.

§ 12 Data protection

If the customer commissions us with the processing of personal data which is subject to Art. 28 DSGVO, we are prepared to conclude a customary contract on commissioned processing. In all other respects, we undertake to comply with the existing statutory provisions with regard to personal data which the customer entrusts to us for processing.

§ 13 Export regulations

For our services, the customer is obliged to observe the export restrictions of national as well as international law, in particular EU and US law. Upon request, we shall provide the customer with information about the goods and services that are subject to export restrictions.

We are not obligated to ship goods or provide services to locations subject to export restrictions.

§ 14 Naming as reference customer

We are entitled to use the name of the customer as well as the logo used for his company name, stating the services rendered for the customer, as a customer reference in our advertising. This shall be done exclusively in a customary manner that is reasonable for the customer.

§ 15 Force majeure

Each party shall be temporarily released from its obligation to perform as long as it is prevented from performing the service due to force majeure. This shall also apply in the event that the party is already in default.

Force majeure shall be corresponding events within the meaning of § 206 BGB (German Civil Code) as well as any other unusual and unforeseen event, if the party invoking such event did not cause the event, could not expect the event, could not influence its occurrence, could not prevent its consequence despite exercising due care and is prevented from rendering performance for the reason. This applies in particular to war, terrorism, riots, pandemics, storms, environmental disasters or if the prevention of performance is otherwise based on government order.

The party claiming the existence of force majeure shall inform the other party

inform the other party immediately in text form of the fact and the reasons for it;

with the diligence of a prudent businessman, take the measures necessary to resume full performance of its obligations as soon as possible;

to make reasonable efforts to minimize, as far as possible, the negative impact on the performance of this Agreement.

§ 16 Final Provisions

This Agreement contains all agreements of the Parties relating to the subject matter of this Agreement. Any deviating collateral agreements and earlier agreements on the subject matter of the contract are hereby rendered ineffective.

Amendments and supplements to this contract must be made in writing, unless a stricter form is prescribed by law. This shall also apply to any waiver of the formal requirement.

Other general terms and conditions of the parties shall not apply to this contract. This shall also apply if reference was made to their inclusion in later documents in connection with this contract (e.g. call-off of services) without objection.

Should any provision of this Agreement be or become void, invalid or unenforceable, in whole or in part, or should any provision which is necessary in itself not be included, the validity and enforceability of all other provisions of this Agreement shall remain unaffected.

The contract shall be governed solely by the laws of the Federal Republic of Germany. Private international law shall not apply insofar as it can be waived.

The sole place of jurisdiction for all disputes in connection with this agreement shall be at our registered office. We shall also be entitled to assert claims against the customer at one of his legal places of jurisdiction.