Terms of business
This is a courtesy translation. The contract and these terms are governed by German law; in case of any discrepancy, the German version is authoritative.
These General Terms and Conditions are divided into three parts. Part A applies to all contracts. Part B applies only to consumers. Part C applies only to businesses. Every provision in Parts B and C names who it binds.
(1) These General Terms and Conditions (the “Terms”) apply to all contracts between Danijel Kresic, Kresic Digital Systems, Burggasse 3, 89604 Allmendingen, Germany (the “Contractor”) and his clients (the “Client”) concerning IT services, software development, web architecture, automation, data processing, quantitative analysis and related services.
(2) A consumer is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or profession (§ 13 German Civil Code, BGB). A business is a natural or legal person or a partnership with legal capacity acting, when concluding the contract, in the exercise of its trade, business or profession (§ 14 BGB).
(3) Part A applies to all contracts. Part B applies only to consumers, Part C only to businesses. Where Part B or Part C departs from Part A, it prevails.
(4) Terms individually agreed between the parties always prevail over these Terms (§ 305b BGB).
(5) The Client’s own general terms do not become part of the contract, even where the Contractor does not expressly object to them in an individual case.
(1) The presentation of services on the Contractor’s website is not a binding offer but an invitation to enquire.
(2) On request the Contractor prepares an individual offer in text form. Unless stated otherwise in it, the offer is binding for fourteen days from receipt.
(3) The contract is formed when the Client accepts the offer in text form within that period.
(4) These Terms become part of the contract where the Contractor expressly refers to them in the offer and gives the Client a reasonable opportunity to take note of their content; by accepting the offer the Client agrees to their application (§ 305 Abs. 2 BGB).
(5) The Contractor stores the contract text and sends it to the Client together with these Terms in text form. The language of the contract is German.
(1) The content and scope of the services owed follow exclusively from the offer and the description of services it contains.
(2) The type of contract is expressly named in the offer for each service:
(3) The Contractor may render the agreed service by equivalent technical means, provided this is reasonable for the Client and does not impair the purpose assumed under the contract.
(4) The following are not owed: any particular search engine ranking, any particular reach, any particular commercial success, and compatibility with future versions of third-party software not published at the time the contract was formed.
(5) Quantitative analysis services serve research and information purposes only. They constitute neither investment advice nor investment brokerage, neither trading recommendations nor automated order execution.
(1) Performance depends on the Client’s cooperation. The Client shall provide to the Contractor, in good time and free of charge, in particular:
(2) The Client answers queries and grants required approvals within five working days of receipt, unless the offer agrees another period.
(3) If the Client fails to cooperate, or does so late or incompletely, agreed dates and periods are extended by the duration of the delay plus a reasonable restart period.
(4) If the Client is in default with an act of cooperation incumbent on it, the Contractor may, after prior reminder setting a reasonable deadline, claim reasonable compensation for the waiting time (§ 642 BGB). Further statutory claims remain unaffected.
(1) Either party may propose a change to the agreed scope in text form.
(2) The Contractor assesses the proposal within five working days and states in text form what effect the change has on scope, remuneration and dates.
(3) The change takes effect only once both parties have confirmed it in text form.
(4) Until confirmation, work continues on the originally agreed scope. Where the proposed change makes that impossible, the affected dates are extended accordingly.
(5) Services that are not part of the description of services agreed in the offer constitute a change within the meaning of this Section and not a remedy of defects.
(1) Dates and deadlines are binding only where the offer or a change agreement expressly designates them as binding. All other indications of time are non-binding estimates.
(2) Compliance with binding dates presupposes that the Client has performed its duties to cooperate under Section 4 in good time.
(1) On completion of a works service the Contractor requests acceptance (Abnahme) from the Client in text form and allows a review period of fourteen days.
(2) Acceptance is declared in text form; at either party’s request an acceptance record is drawn up.
(3) The Client may not refuse acceptance on account of immaterial defects. Reservations regarding known defects must be declared on acceptance.
(4) If the Client does not refuse acceptance within the review period stating at least one defect, the works service is deemed accepted (§ 640 Abs. 2 BGB). Section 23 of these Terms applies to consumers.
(5) On acceptance the risk passes to the Client, the remuneration falls due, and the limitation period for claims in respect of defects begins.
(6) If the Client puts the works service into use without having accepted it, this does not replace acceptance; paragraph 4 remains unaffected.
(1) The remuneration follows from the offer. It is agreed either as a fixed price for a delimited service or by time on the basis of the agreed hourly rate.
(2) Where billing is by time, the Contractor documents the hours worked in a comprehensible form.
(3) For works services the Contractor may request instalments in the amount of the value of the services actually rendered and owed under the contract (§ 632a BGB). The payment schedule is set out in the offer and follows the actual progress of the work.
(4) Expenses that the Contractor incurs on the Client’s behalf and in the Client’s interest — in particular domain and hosting fees and third-party licences — are charged separately at cost. They are named in the offer to the extent they are foreseeable when the contract is formed.
(5) The Contractor is a small business within the meaning of § 19 UStG. No value added tax is charged and none is shown. All prices stated are final prices.
(6) Invoices are payable in full within fourteen days of receipt.
(1) If the Client is late in paying, the claim bears interest in accordance with the statutory provisions (§ 288 BGB).
(2) For each further reminder after default has arisen the Contractor may claim the costs actually incurred. The right to claim higher damages for delay is reserved; the Client remains free to prove that the loss was lower.
(3) Where the Client is more than fourteen days late with a payment due, the Contractor may, after prior notice in text form, suspend further performance until payment is made. Dates are extended accordingly.
(1) The Contractor grants the Client a non-exclusive right of use, unlimited in time and territory, in the work results for the purpose assumed under the contract. The right of use includes the right to modify and develop the results further and the right to transfer it to a legal successor of the Client’s business.
(2) An exclusive right of use is granted only where expressly agreed in the offer and separately remunerated.
(3) The grant of rights of use is subject to the condition precedent of payment in full of the agreed remuneration. Until then use is permitted revocably only.
(4) The Contractor remains entitled to continue using, without restriction and including for other clients, general knowledge, experience, methods and the generic building blocks, libraries and tools he has developed, provided these contain no confidential information and no individual content of the Client.
(5) Work results regularly contain open-source components and third-party software. In these the Contractor cannot grant rights going beyond the respective third-party licence. The components used and the licence terms applying to them are named to the Client on request. The Client is obliged to comply with those licence terms.
(1) The Client warrants that it holds the necessary rights in all content it supplies — in particular texts, images, graphics, logos, fonts, data and software — and that the use of that content in accordance with the contract infringes no third-party rights.
(2) The Client indemnifies the Contractor against third-party claims asserted against the Contractor on account of the use of supplied content and reimburses the reasonable costs of legal defence. This does not apply where the Contractor is responsible for the infringement.
(3) The Contractor is not obliged to examine supplied content for infringements.
(1) The statutory rights in respect of defects (§§ 633 et seq. BGB) apply to works services, subject to this Section and to Sections 24 and 27.
(2) The Client reports defects in text form and describes them precisely enough for them to be reproduced.
(3) The Contractor first has the right to cure (Nacherfüllung). A reasonable period must be allowed for this. Only after it has expired without success are the Client’s further statutory rights available.
(4) There is no defect where the deviation results from:
(5) Service contracts are governed by the law of service contracts; as no defined result is owed, no rights in respect of defects arise in that regard.
(1) The Contractor is liable without limitation for damage arising from injury to life, body or health, for intent and gross negligence, for fraudulent concealment of a defect, to the extent of any guarantee given, and under the Product Liability Act.
(2) In cases of simple negligence the Contractor is liable only for breach of a material contractual obligation — an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the Client may regularly rely. In that case liability is limited to the foreseeable damage typical of this type of contract at the time of formation.
(3) Liability for simple negligence is otherwise excluded.
(4) The above limitations also operate in favour of the Contractor’s vicarious agents.
(5) No change in the burden of proof to the Client’s detriment is associated with the above provisions.
(1) The Client is itself responsible for the regular backup of its data and systems.
(2) Before any intervention by the Contractor in a system in productive use, the Client confirms on request that a current and restorable backup exists.
(3) Paragraphs 1 and 2 leave the Contractor’s liability under Section 13 unaffected; in particular, liability for intent and gross negligence is not limited by them.
(1) Each party treats as confidential all confidential information of the other party that becomes known to it in the course of the cooperation and uses it solely for the purposes of this contract. This obligation survives the end of the contract.
(2) At the Client’s request, project communication and confidential documents are transmitted over end-to-end encrypted channels.
(3) The Contractor uses AI-assisted development tooling in performing the services. He undertakes to operate that tooling exclusively with training opt-out and privacy mode enabled, so that the Client’s content does not feed the training of third-party models. The Contractor cannot pass on a contractual zero-retention guarantee from the providers; attention is expressly drawn to this.
(4) The Client may exclude the use of AI-assisted tooling for its project in text form. In that case the Contractor performs without such tooling; any resulting additional effort and change of dates are reflected in the offer or under Section 5.
(5) The Contractor performs the services himself as a matter of principle. The use of subcontractors requires the Client’s prior consent in text form. The Contractor is responsible for the fault of any subcontractor engaged as for his own fault.
(1) The Contractor processes the Client’s personal data in accordance with the statutory provisions. Details follow from the Contractor’s privacy policy.
(2) Where, in the course of performance, the Contractor obtains access to personal data for which the Client is the controller, the parties conclude a separate data processing agreement under Art. 28 GDPR before the first such access. These Terms do not replace such an agreement.
(1) The Contractor is entitled, after completion of the project, to name the Client as a reference and to describe the services rendered in general terms.
(2) Use of the Client’s logo, screenshots of the work results and publication of specific figures require the Client’s separate consent in text form. At the Client’s request, figures are published in anonymised form only.
(3) The Client may withdraw consent under paragraphs 1 and 2 at any time in text form with effect for the future. Content already published is removed within a reasonable period after receipt of the withdrawal; there is no retroactive obligation.
(4) Where the parties have concluded a confidentiality agreement, that agreement prevails over paragraphs 1 to 3 unless it expressly provides otherwise.
(1) Contracts for one-off works services end on acceptance and payment in full.
(2) Continuing obligations, in particular maintenance and support contracts, are concluded for an indefinite period. Either party may terminate them in text form giving one month’s notice to the end of a month. Section 25 applies additionally to consumers.
(3) The right to terminate for good cause remains unaffected.
(4) In the case of works contracts the Client may terminate at any time until completion of the work (§ 648 BGB). In that case the Contractor retains the claim to the agreed remuneration; he must, however, allow to be set off what he saves in expenses as a result of the cancellation or acquires through other use of his labour. It is presumed that he is entitled to five per cent of the remuneration attributable to the part of the service not yet rendered. Both parties remain free to prove a higher or lower amount.
(5) Notices of termination must be given in text form.
(1) Events of force majeure that substantially impede or prevent the Contractor’s performance entitle him to postpone performance by the duration of the impediment plus a reasonable restart period. These include in particular official measures, natural disasters, failures of supra-regional communication networks and prolonged disruptions at upstream suppliers, in each case where not attributable to the Contractor.
(2) If the impediment lasts longer than two months, either party may terminate the affected contract. Services already rendered are invoiced.
(1) Unless expressly provided otherwise, declarations under this contract must be made in text form. No stricter form than text form is required for declarations by the Client.
(2) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods. As against consumers this applies only to the extent that it does not deprive them of the protection afforded by mandatory provisions of the law of the country in which they have their habitual residence.
(3) The Contractor is neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board (§ 36 VSBG).
(4) Should any provision of these Terms be or become invalid, the validity of the remaining provisions is unaffected. The statutory provisions take the place of the invalid provision.
The following provisions apply only where the Client is a consumer within the meaning of § 13 BGB. They prevail over any diverging provision of Part A.
(1) The Contractor directs his offer to consumers exclusively at consumers habitually resident in the Federal Republic of Germany.
(2) Contracts with consumers habitually resident outside Germany are formed only where the Contractor expressly confirms this in text form in the individual case.
(3) The offer to businesses is not territorially restricted.
(1) Consumers have a statutory right of withdrawal for contracts concluded by distance communication. Details and the model withdrawal form follow from the Contractor’s withdrawal notice, which is attached to the offer.
(2) If the Contractor is to begin performance before the withdrawal period expires, this requires the consumer’s express request. The offer informs the consumer that the right of withdrawal lapses on complete performance and that, on withdrawal after performance has begun, the consumer owes value compensation for the services rendered up to that point (§ 356 Abs. 4, § 357 Abs. 8 BGB).
The deemed acceptance under Section 7(4) applies to a consumer only where the Contractor has informed the consumer, together with the request for acceptance and in text form, of the consequences of an acceptance that is not declared or is refused without stating defects (§ 640 Abs. 2 Satz 2 BGB). Without that notice the deeming provision does not take effect.
(1) The statutory limitation periods for claims in respect of defects are not shortened as against consumers.
(2) No monetary cap on liability applies as against consumers. Section 13 applies unmodified.
(3) No lump sum for default costs is charged to consumers; only costs actually incurred are charged.
(1) Any initial commitment of the consumer is limited to a maximum of two years.
(2) A tacit extension occurs only for an indefinite period and only on condition that the consumer may terminate the extended contract at any time giving no more than one month’s notice.
(3) The consumer’s notice period is no longer than one month (§ 309 Nr. 9 BGB).
(1) Where the Contractor supplies a consumer with a digital product within the meaning of §§ 327 et seq. BGB, the statutory provisions on supply, product defects and updates apply.
(2) The Contractor provides the consumer with the updates necessary to maintain the conformity of the digital product during the relevant period, and informs the consumer of them. This includes security updates (§ 327f BGB).
(3) The Contractor offers the consumer, in the offer, a separate maintenance contract covering the ongoing care and updating of the digital product. Whether the consumer accepts that offer is relevant to determining the relevant period.
(4) If the consumer fails to install an update provided to it within a reasonable period, the Contractor is not liable for a product defect attributable solely to the absence of that update, provided the Contractor had informed the consumer of the availability of the update and of the consequences of not installing it (§ 327f Abs. 2 BGB).
(5) A departure from the objective requirements for the digital product is effective only where the consumer was specifically informed of it before making its contractual declaration and the departure was expressly and separately agreed in the contract (§ 327h BGB). Such a departure is not agreed by these Terms but only in the individual case in the offer.
The following provisions apply only where the Client is a business within the meaning of § 14 BGB, a legal person under public law or a special fund under public law. They prevail over any diverging provision of Part A.
The limitation period for claims in respect of defects is one year from acceptance. This does not apply to claims for damage arising from injury to life, body or health, to claims based on intent or gross negligence, to fraudulent concealment of a defect, or to claims under the Product Liability Act; the statutory periods apply to those.
(1) Within the scope of Section 13(2), the Contractor’s liability for an individual occurrence of loss is limited to the amount of the remuneration agreed for the affected assignment.
(2) The cap under paragraph 1 does not apply to damage arising from injury to life, body or health, to intent and gross negligence, to fraudulent concealment of a defect, to the extent of any guarantee given, or to claims under the Product Liability Act.
The Client may set off only against claims that are undisputed or have been finally determined by a court. A right of retention is available to the Client only where its counterclaim arises from the same contractual relationship.
For payment claims against businesses, the Contractor may claim a lump sum of 40 euros in addition to statutory default interest (§ 288 Abs. 5 BGB). The lump sum is to be set off against any damages owed to the extent those comprise costs of legal enforcement.
Businesses have no right of withdrawal. The provisions of §§ 327 et seq. BGB on consumer contracts for digital products do not apply.
The place of performance for all services is the Contractor’s place of business. The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship is the Contractor’s place of business, provided the Client is a merchant, a legal person under public law or a special fund under public law (§ 38 ZPO). The Contractor is also entitled to sue at the Client’s general place of jurisdiction.