This is an English translation of the German General Terms and Conditions (Allgemeine Geschäftsbedingungen) for your convenience. Only the German version is legally binding.
1. Scope and Contracting Party
These General Terms and Conditions (“Terms”) apply to all current and future offers, services and contracts between Lorenz Ritter von Stein HubSpot & Automation Consulting (Lottestr. 52a, 22529 Hamburg, Germany) and entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law (hereinafter collectively the “Client”).
These Terms apply exclusively to business-to-business (B2B) transactions. No contracts are concluded with consumers. Terms of the Client that conflict with or deviate from these Terms apply only if and to the extent that the Provider has expressly agreed to their application in text form.
2. Conclusion of Contract, Contract Documents and Order of Precedence
The Provider’s offers are non-binding unless they are expressly designated as binding. A contract is concluded in particular by signing an offer, a statement of work or a project contract, or by an express order confirmation from the Provider in text form.
In the event of conflicts, the following order of precedence applies: (1) individually negotiated framework or project contract, (2) offer/statement of work/purchase order, (3) data processing agreement for data protection matters, (4) these Terms. Individual agreements take precedence over these Terms.
3. Subject Matter and Nature of the Services
The Provider provides, in particular, consulting, implementation, configuration, integration, automation, data architecture, training, documentation, interim/embedded, support and maintenance services in the field of CRM, customer service software, and data and automation systems.
Unless a specific result under a contract for work (Werkvertrag) or a work result subject to acceptance is expressly and unambiguously agreed, the Provider owes services in the nature of a service contract (Dienstvertrag). No particular economic, technical or organizational result is owed.
The Provider is free to choose methods, tools, personnel and project approach, unless mandatory specifications of the Client or statutory requirements preclude this. Business decisions of the Client, in particular regarding the selection, use or decommissioning of tools, remain within the Client’s sphere of risk.
Legal, tax or other advice requiring a license is not owed unless it has been expressly and permissibly agreed in writing.
4. Delimitation of Services, Third-Party Services and Third-Party Systems
The scope of services comprises only the services expressly described in the respective offer or contract. In particular, the following are not owed unless expressly agreed: third-party licenses, ongoing managed services, 24/7 on-call availability, security monitoring, data cleansing, legal review of processes, data protection advice in the role of an external data protection officer, and hosting or operation of third-party systems.
The Provider may use third-party software, open-source components, and cloud and communication services to provide the services. The terms and technical requirements of the respective third-party providers apply to these in addition.
Changes, restrictions, price adjustments, API changes, malfunctions or the discontinuation of services by third-party providers are generally outside the Provider’s area of responsibility, unless the Provider culpably caused the disruption itself or has expressly assumed a corresponding guarantee.
5. Client’s Obligations to Cooperate and Provide Materials
The Client shall provide all information, access, contact persons, approvals, documents, systems, test environments and other materials required for the provision of the services in a timely manner, completely and in usable form.
The Client shall designate contact persons with authority to make decisions on functional and organizational matters. The Provider may treat instructions and approvals from these contact persons as binding.
Unless expressly agreed otherwise, the Client is responsible for the legal permissibility of the data processing it initiates, the accuracy of its functional specifications, obtaining any required consents, the lawfulness of the content it provides, and securing its systems and data.
Unless a backup service is expressly owed, the Client is responsible for regular data backups in line with the state of the art.
If the Client fails to fulfill its obligations to cooperate, or fails to fulfill them on time or properly, dates and deadlines shall be postponed by a reasonable period; any additional effort resulting from this may be invoiced separately based on actual effort.
6. Project Organization and Change Request Procedure
The parties shall agree on the project approach in the respective offer, project plan, backlog or other project documents. The Provider may use agile or iterative approaches where this is appropriate to the nature of the project.
Changes to the scope of services, requirements, priorities, assumptions or interfaces must be agreed in text form. The Provider is entitled to assess the impact of a change request on effort, compensation, schedules, responsibilities and technical risks and to submit an offer for a corresponding adjustment.
Until agreement is reached on a change request, the services shall continue on the basis of the most recently agreed requirements. If the Provider cannot reasonably be expected to do so, or if this does not make technical sense, the Provider may suspend the affected portions of the services until the matter has been clarified.
7. Dates, Deadlines and Impediments to Performance
Performance and delivery dates are binding only if they have been expressly designated as binding and all necessary acts of cooperation by the Client have been performed in time.
The commencement of deadlines requires, in particular, clarification of the functional and technical prerequisites, provision of the required access, and receipt of agreed advance or progress payments.
Delays due to lack of cooperation, measures by public authorities, disruptions at third-party providers, unavailability of the Client’s systems or other circumstances for which the Provider is not responsible shall extend agreed deadlines by a reasonable period.
Partial performance is permitted to the extent that it is reasonable for the Client.
8. Acceptance of Service Components Expressly Subject to a Contract for Work
Acceptance takes place only for work results that are expressly designated as subject to acceptance in the offer or contract. Services purely in the nature of a service contract are not subject to acceptance.
After making the work result available, the Provider shall request acceptance in text form. The Client shall inspect the services without undue delay and shall notify the Provider in text form of any material, reproducible defects within ten working days, providing a comprehensible description.
Immaterial defects do not prevent acceptance. If the Client puts a work result subject to acceptance into productive use, or fails to give notice of material defects within the aforementioned period despite having been expressly informed of the consequences, the services shall be deemed accepted.
Unless otherwise agreed, separately agreed hypercare, warranty or support phases begin upon acceptance.
9. Support, Maintenance, Availability and Response Targets
Support comprises reactive assistance with questions, malfunctions and adjustment needs. Maintenance comprises proactive or event-driven upkeep, update and optimization services, to the extent that these are expressly agreed.
Without an express written agreement, the Provider owes neither specific service hours nor specific response, restoration or availability levels, nor 24/7 on-call availability, nor service credits.
Any response targets stated, in particular a targeted response within 1 to 2 working days, are non-binding guideline values and do not constitute the assumption of a guarantee.
Maintenance windows, security measures, updates or mandatory interventions in third-party or Client systems may cause temporary restrictions.
10. Compensation, Prices and Expenses
All prices are net prices plus statutory value added tax (VAT), where applicable. If the reverse charge procedure or another special VAT rule applies under tax law, invoices shall be issued in accordance with the legal situation applicable at the time.
Compensation is based on time spent, a package price, a retainer or combinations thereof, in accordance with the respective offer or contract.
Unless otherwise agreed, time-based services and retainers are invoiced monthly in arrears on the basis of the documented effort or the agreed scope of services, respectively.
Package projects may be paid for by advance payment, progress payments, milestone billing or a final invoice. The Provider is entitled to request reasonable prepayment or progress payments, in particular in cross-border matters, in the case of project-related third-party costs or for Client-specific advance work.
Travel time, travel and accommodation expenses, and license, hosting, cloud or third-party services are compensated separately unless they are expressly included in the offer.
11. Payment Terms, Default in Payment and Protective Rights
Unless otherwise agreed, invoices are due for payment without deduction within 14 days of receipt. The Provider is entitled to transmit invoices electronically.
In the event of default in payment, the Provider’s statutory claims apply, in particular to default interest and a lump-sum compensation for damage caused by default, without prejudice to further claims for damages.
If the Client is in default with payments due, the Provider may, after a prior reminder and the setting of a reasonable deadline, temporarily suspend further services, unless legitimate interests of the Client compellingly preclude this.
The Client is entitled to set off only undisputed claims or claims that have been established by a final and binding court decision. The Client is entitled to rights of retention only on the basis of counterclaims arising from the same contractual relationship.
12. Price Adjustments
In the case of continuing obligations, retainers and longer-term service relationships, the Provider may adjust the agreed prices by giving six weeks’ notice in text form if and to the extent that relevant cost factors, in particular personnel, procurement, license, hosting, cloud, energy, compliance or security costs, change significantly after conclusion of the contract.
Any price adjustment must be made in accordance with equitable discretion and in a comprehensible manner based on the actual development of costs. Cost reductions must be taken into account appropriately.
For one-time fixed-price services within the first four months after conclusion of the contract, a price adjustment applies only if it is based on change requests by the Client, changed assumptions, delays on the Client’s side or changes to mandatory third-party services that were not foreseeable at the time the contract was concluded.
If the price of an ongoing service increases by more than 10% in total within twelve months, the Client may terminate the affected ongoing service by extraordinary termination with effect from the date of the adjustment if the Client cannot reasonably be expected to continue it. Notice of termination must be given in text form within two weeks of receipt of the price adjustment notice.
13. Rights of Use and Intellectual Property
All rights to the Provider’s concepts, methods, boilerplates, templates, standard components, scripts, libraries, know-how, documentation and other pre-existing or independently developed intellectual property rights remain with the Provider.
To the extent that work results are created individually for the Client and nothing to the contrary has been agreed, the Client receives, upon full payment of the compensation owed, a simple, non-exclusive, non-sublicensable right to use the results covered by the contract to the extent necessary for use for the Client’s own business purposes.
The handover of source code, administrator rights, development files, build environments or internal working documents is owed only if this has been expressly agreed.
Open-source software and third-party services are subject to the respective license terms. To the extent permissible, the Provider may freely reuse general know-how, methods and work results that are not client-specific, provided that this does not disclose personal data or confidential information of the Client.
14. Confidentiality
The parties undertake to keep secret all non-public commercial, technical, organizational and other confidential information of the other party that becomes known to them in connection with the contractual relationship, and to use such information only for the purposes of the contract.
The confidentiality obligation does not apply to information that is publicly known or becomes publicly known without breach of this agreement, that was already lawfully known to the receiving party, that was lawfully obtained from an authorized third party, or that was independently developed.
The parties shall bind their employees, independent contractors and other persons deployed by them to confidentiality to an appropriate extent. Statutory disclosure obligations remain unaffected; to the extent permissible, the other party must be informed in advance.
The confidentiality obligation applies for the term of the contract and for a further five years after its end; for trade secrets, it continues to apply beyond that for as long as a legitimate interest in confidentiality exists.
15. Data Protection and Processing on Behalf of the Client
Each party shall comply with the data protection regulations applicable to it. To the extent that the Provider processes personal data on behalf of the Client, the parties shall conclude a separate data processing agreement before processing begins.
Unless expressly agreed otherwise, the Client remains the controller under data protection law responsible for the lawfulness of the processing, determining the purposes and means, fulfilling information obligations and safeguarding the rights of data subjects.
The Provider processes personal data only within the scope of the contractual agreements, documented instructions and applicable law. The Provider may engage subcontractors in accordance with the contract and the data processing agreement.
16. Data Return, Data Backup and Exit
Where, in individual cases, the Client’s data is held by the Provider or in systems administered by the Provider, the Provider shall make the data covered by the contract available to the Client at the end of the contract in an agreed or otherwise common machine-readable format. Special conversion, migration or transformation services shall be compensated separately.
Unless an express backup or archiving service has been agreed, the Provider assumes no obligation to retain Client data permanently beyond the term of the contract.
After handover of the data, expiry of agreed exit periods and subject to statutory retention obligations, the Provider may delete or anonymize remaining copies. The Client’s access to the Provider’s systems or administered environments may be terminated at the end of the contract or after a justified suspension.
17. Warranty, Notice of Defects and Remedial Work
For services purely in the nature of a service contract, the Provider gives no warranty for a particular result. The Provider performs these services with the care required in commercial dealings and in a professional quality customary in the industry.
For service components expressly subject to a contract for work, the Client must notify defects without undue delay in text form with a sufficiently specific description. The Provider shall first be entitled to remedy the defect within a reasonable period.
In particular, there is no defect to the extent that malfunctions are due to operating errors on the Client’s side, changed operating environments, subsequent interventions by third parties or the Client, faulty data, unapproved changes by third-party providers or other circumstances within the Client’s sphere of risk.
Where the offer specifies a free-of-charge warranty, hypercare or bug-fixing phase, this covers only reproducible defects that are material to the contract, within the scope defined there. Further support or change services shall be compensated separately.
18. Liability
The Provider is liable without limitation in cases of intent and gross negligence, culpable injury to life, body or health, fraudulent intent, the assumption of an express guarantee, and in cases of mandatory statutory liability.
In the event of a slightly negligent breach of material contractual obligations, the Provider’s liability is limited to the foreseeable damage typical of the contract. Material contractual obligations are obligations whose fulfillment makes the proper performance of the contract possible in the first place and on whose observance the Client may regularly rely.
The amount of liability for slightly negligent breaches of material contractual obligations is limited, for individual projects, to 200% of the net order value of the affected order and, for continuing obligations, to 200% of the net compensation paid for the affected service in the last twelve months. If no full twelve-month period is available, the compensation paid up to the time the damage occurred is decisive.
Otherwise, liability for slight negligence is excluded. This applies in particular to indirect damage, lost profits, lost savings, reputational damage and consequential damage from business interruptions, unless a case of unlimited liability exists.
In the event of data loss, the Provider is liable (except in cases of unlimited liability or expressly assumed backup responsibility) only for the restoration effort that would have been incurred if the Client had backed up its data properly and in a manner appropriate to the risk.
The above limitations of liability also apply for the benefit of the Provider’s legal representatives, employees, vicarious agents and subcontractors.
19. Force Majeure
Neither party is liable for delay in or non-performance of its obligations to the extent that this is due to events of force majeure. Force majeure includes in particular war, terrorism, natural disasters, fire, pandemics, epidemics, labor disputes, energy or telecommunications outages, massive cyberattacks, measures by public authorities or other events that are unforeseeable and beyond the control of the affected party.
The affected party shall inform the other party without undue delay of the occurrence, expected duration and effects of the event. The obligations to perform are suspended for the duration and to the extent of the effect.
If an event of force majeure lasts longer than 60 days and a party cannot reasonably be expected to continue with the affected part of the services, that party may terminate the affected part of the services in text form.
20. Term, Termination and End of Contract
The term and ordinary notice periods are set out in the respective offer or contract. Unless otherwise agreed for retainers or ongoing support services, a minimum term of three months applies, followed by a notice period of four weeks to the end of a month.
The right to extraordinary termination for good cause remains unaffected. Good cause exists in particular if the other party persistently breaches material contractual obligations despite having been given a reasonable deadline, unless setting a deadline is unnecessary.
Notices of termination must be given in text form. In the event of termination of the contract, services rendered up to that point, third-party services that have been bindingly ordered and justified exit services must be paid for.
21. Final Provisions
The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
If the Client is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship is Hamburg, Germany.
Should any provision of these Terms be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected.