Our Terms and Conditions

General Terms and Conditions of werbeagentur aufwind GmbH and aufwind solutions GmbH & Co. KG (hereinafter referred to as ‘aufwind’) | Version 01/2012

I. Scope

1. The following General Terms and Conditions (GTC) apply to all contracts and business relationships between aufwind and companies/businesses – hereinafter referred to as the ‘Customer’. They form an integral part of every quotation and, upon the conclusion of a contract, also form an integral part of that contract. They shall also apply to any future business relationships entered into between aufwind and the Customer after these GTC have first become part of a contract.

2. Should the Customer use their own terms and conditions, these are hereby expressly rejected. Should the Customer nevertheless refer to such conflicting terms and conditions, the provision of services or the receipt of consideration by aufwind shall not be construed as tacit approval or, indeed, recognition thereof. Rather, the customer is obliged to expressly inform aufwind of their intention to use their own General Terms and Conditions, and not merely by printing them on order forms, etc. aufwind shall be entitled to withdraw from the contract from the time such notification is given; however, if the notification is provided after the contract has been concluded, aufwind shall be entitled to remuneration in the usual amount for the work already performed, irrespective of whether it can be used.

II. Copyright Protection

1. All services provided by aufwind (quotes; software; documentation; reports; designs; creative services; drafts; images; films; multimedia works; etc.) are protected by copyright.

2. Any reproduction of the work or individual parts thereof is prohibited.

3. aufwind may demand to be named as the copyright holder.

4. The work may only be used for the agreed purpose and to the agreed extent, and for the agreed duration.

5. Insofar as aufwind makes third-party software available to the customer, aufwind is entitled to incorporate the terms of use of such third parties into the contract in respect of this software. The customer is obliged to comply with the provisions of the third parties’ terms of use in the same manner.

6. Any transfer (sale, letting, etc.) of the granted rights of use by the customer requires the consent of aufwind.

7. Any modification of the work by the customer requires the consent of aufwind. This also applies to modifications to copies of the work.

8. Without the written consent of aufwind, the software or the layouts must not be decompiled, disassembled or otherwise converted into a generally readable form. It is expressly prohibited to translate the supplied software, of whatever kind, or to use it as the basis for the customer’s own software or publications.

9. The customer is entitled to use the contractual software on any compatible computer, provided that it is used on only one computer at a time (unless otherwise agreed) and the customer is in possession of the original software. The software is deemed to be running on a computer if it is loaded into random access memory (i.e. RAM) or installed on a storage device (such as a hard disk or other storage medium). The customer is also entitled to make a backup copy of the software should this be necessary to ensure its future use. In all other respects, the provisions of the Copyright Act shall apply in addition with regard to the rights of use. Please note: If the data carrier is protected by copy protection, we will send you a replacement data carrier in the event of proven loss of your original data carrier or damage that impairs its functionality.

Without the written consent of aufwind, the customer is not authorised to make copies of the documentation, the original software or the backup copy beyond the scope of the above authorisation.

10. Upon expiry of the granted licence period, the software, the product, or any images and videos must no longer be used but must be completely removed from the customer’s system. The provisions of copyright law also apply here by way of supplement.

11. aufwind is entitled to use the software created or the creative work, together with the customer’s details (including the logo), as a reference both offline and online.

12. aufwind is entitled to modify the software covered by this contract (e.g. to rectify errors), to extend it, or to further develop or redevelop it in any other way. However, the customer has no corresponding entitlement under this contract to any such actions.

13. Rights of use to works that have not yet been paid for in full upon termination of the contract shall remain with aufwind, unless otherwise agreed.

14. aufwind may, in principle, refer to itself in an appropriate manner on the client’s works. The client may object to this only in writing.

15. Rights of use for designs rejected by the client or not carried out shall remain with aufwind. This also applies, and in particular, to services provided by aufwind which are not subject to specific statutory rights, in particular copyright.

A. Software

III. Scope of Services

1. The subject matter of the contract is the right to use a specific commissioned work and the granting of a non-exclusive and simple right of use to this work on a system specified in the delivery note or on data carriers to be ordered and paid for separately by the client, in machine-readable object code, and associated accompanying material (user manual), in one copy each, or access to the software via the internet. A licence to use shall only exist in respect of the finished work or a finished partial delivery.

2. Unless otherwise agreed, the Customer shall provide detailed specifications regarding the software to be developed (‘specification sheet’ or a detailed catalogue of requirements for the required functionalities). Core functionalities that are of particular importance to the Customer must be identified accordingly. The customer shall inform aufwind of any special considerations to be taken into account, particularly regarding the data to be processed. Furthermore, the customer shall inform aufwind of all obligations and regulations to be observed during programming. The client shall provide aufwind with all data necessary for the production of the software in good time. This also includes specifying how and where the software is to run if it is not hosted on aufwind’s servers (separate hosting contract). The specifications shall be deemed to be the target description upon placement of the order.

3. Any subsequent requests by the client for changes and/or additions shall only become binding once they have been confirmed in writing by aufwind and the parties have reached agreement on the amount of the fee due for this, or once delivery has taken place. Where addenda and supplements have been delivered, in the absence of an express agreement on fees, remuneration in accordance with aufwind’s standard hourly rates shall be deemed to have been agreed in cases of doubt.

4. aufwind is entitled to keep minutes of meetings with the customer relating to the order. Once these minutes have been provided to the customer and the customer has not objected to them in writing within one week of receipt, the contents of the minutes shall be deemed to form part of the contract.

5. Should it become apparent during the development of the software that the client is required to provide information to aufwind, the client is obliged to do so without delay upon request.

6. The source formats of the programmes covered by the contract shall only be supplied to the customer on the basis of a separate written agreement. In principle, the customer has no entitlement to the handover of the source formats.

7. Given the current state of the art, it is not possible to develop computer software in such a way that it operates without error in all applications and combinations. The subject matter of the service to be provided is therefore software which is, in principle, usable in accordance with the programme description and user manual and which, in accordance with the state of the art, corresponds to an average standard of type and quality.

IV. Prices, Delivery, Payment

1. The remuneration for the services provided is determined by aufwind’s quotation, the rates and charges specified in the price list, or any other agreements with the customer accepted by aufwind in the order confirmation.

2. Prices are quoted in euros (EUR). Prices and costs/fees are exclusive of delivery charges and statutory value added tax at the rate applicable at the time the invoice is issued.

3. The prices stated in our quotation apply to the standard version of the programmes as described.

4. Any changes or additions requested by the customer will be charged separately.

5. Subject to the following provisions, payment for the goods is due immediately upon receipt of the invoice, without deduction. In the event of late payment, we are entitled to charge the customer for our own credit costs. We reserve the right to claim further damages.

6. For services not provided by aufwind at its registered office, travel costs, expenses and, where applicable, accommodation costs shall be invoiced separately.

7. Unless otherwise agreed, agreed fixed prices are due upon delivery. Fixed prices exceeding EUR 10,000 are due and invoiced as follows:

a) 30 per cent of the fixed price upon order confirmation or after conclusion of the contract;

b) 50 per cent of the fixed price upon handover of the test copy or activation of the test version for the acceptance test;

c) 20 per cent of the fixed price upon acceptance.

8. Services and work billed on a time-and-materials basis shall be invoiced monthly.

9. If services are not utilised after the contract has been concluded in the case of flat-rate or package prices, no subsequent price reduction shall be granted.

10. Unless prices have been expressly agreed in writing as binding, all information provided by aufwind regarding the expected time and cost involved in a contract is purely an estimate based on the requirements specified by the customer and is provided without obligation. A price is only binding if it has been expressly designated as such.

11. In the event of the customer being in arrears, aufwind is entitled to declare all outstanding claims and all claims falling due until full settlement immediately due and payable. Without prejudice to the right to claim higher damages, aufwind is entitled to charge default interest at a rate of 8 percentage points per annum above the base rate of the German Bundesbank. The same applies if there are grounds for insolvency on the part of the customer, or if an application has been made or proceedings have been initiated for the opening of insolvency proceedings in respect of the customer’s assets, or if the opening of such proceedings has been refused due to lack of assets. Where the customer hosts the software with aufwind, aufwind is entitled to block access in the event of late payment.

V. Retention of Title

1. All goods delivered remain the property of aufwind until all claims have been settled. In the event of the resale of the goods, aufwind must be informed so that the rights to use the goods can be released, insofar as there is an obligation to do so.

VI. Delivery Time

1. Any delivery times quoted are non-binding and subject to change, unless a delivery date has been expressly stated as binding in the order.

2. If failure to meet performance deadlines is attributable to force majeure or to circumstances for which aufwind is not responsible (e.g. industrial action, force majeure, official orders, absence of staff or computer failure through no fault of aufwind, failure of suppliers to deliver, or failure of telecommunications providers), the performance deadlines shall be extended accordingly, without either party being entitled to withdraw from the contract. The same applies to any period during which aufwind is awaiting information, cooperation or decisions from the customer. aufwind shall inform the customer of such circumstances without delay.

3. aufwind is entitled to make partial deliveries and may also invoice these separately. Changes to and deviations from the services provided as set out in the quotation documents are permissible, provided that these are reasonable for the customer, taking into account aufwind’s interests.

VII. Cooperation by the Client

1. Insofar as necessary or useful for the performance of the contract, the client shall assist aufwind in the execution of the contract. In particular, the client shall, free of charge, create all the conditions within its sphere of operations that are necessary for the proper provision of aufwind’s services. These conditions include, amongst other things, that the client

a) provides, in good time and to the extent required, staff, workspaces, equipment and facilities, the relevant IT environment, telecommunications facilities, as well as data and interfaces (including documentation), and cooperates in specifications, tests, acceptance procedures, etc.,

b) appoints a contact person who is available to aufwind staff during the agreed working hours, whereby the contact person is authorised to make statements necessary as interim decisions in the course of carrying out the contract,

c) provide aufwind staff with access at all times to the information necessary for their work and supply them in good time with all the required documentation.

2. If the client fails to fulfil their obligations to cooperate, aufwind is entitled to withhold services. Should aufwind nevertheless provide the services, the additional costs will be invoiced in accordance with the current price list. This also applies to any additional costs incurred by aufwind as a result of work having to be repeated due to incorrect, incomplete or subsequently corrected information, or due to unfinished or faulty components supplied by the customer.

VIII. Acceptance

1. In the case of contractual relationships governed by the law on contracts for work and services, the customer shall, upon the work being ready for acceptance, declare acceptance in writing without delay, but at the latest within 14 days of receiving the notice of completion. If the customer fails to do so, the work shall be deemed to have been accepted unconditionally and free from defects upon expiry of this period. The customer shall be informed of this legal consequence in the notice of completion. Upon acceptance, the customer shall carry out the acceptance tests in collaboration with aufwind within 14 days. During the acceptance tests, the contracting parties shall jointly draw up a report setting out the agreed test cases/test data, the functional tests carried out and the faults identified.

2. Errors identified during the acceptance tests shall be classified as follows:

Category 1: Errors preventing operation; the software cannot be used. The error cannot be circumvented using organisational or other economically justifiable measures;

Category 2: Errors hindering operation; use of the software is impaired but is essentially possible. The error can be circumvented by organisational and other economically justifiable means;

Category 3: Other faults that have no significant impact on the functionality and usability of the software.

3. The contracting parties shall classify the faults into categories by mutual agreement. The customer shall declare acceptance provided that no Category 1 faults have occurred. Any Category 2 and 3 faults remaining after acceptance shall be rectified under the warranty. A Category 1 fault shall suspend the acceptance period for the duration of the rectification. The rectification shall not give rise to a new acceptance period, but must also be tested and accepted within the 14-day acceptance period.

4. Acceptance shall also be deemed to have taken place if the customer uses the software in live operation for more than one month without raising any objections or expresses their approval in any other way; for example, by remaining silent in response to a request for acceptance or by paying the remuneration.

5. For distinct and economically independent usable parts of the service, aufwind may require partial acceptance. In this case, the entire service shall be deemed to have been accepted upon the final partial acceptance (final acceptance). Partial acceptances that have already taken place shall remain unaffected by the outcome of the final acceptance.

6. Where applicable, the contracting parties shall agree, in the context of software development, on further service milestones, upon the achievement of which the customer shall review and approve the progress of the service. In this regard, the respective stage of performance shall be deemed to have been accepted no later than one week after the date on which aufwind submits the relevant work deliverables to the customer or notifies the customer that the stage of performance has been reached, unless the customer gives notice of defects in writing and in a comprehensible manner.

IX. Duty to Inspect and Give Notice of Defects

1. The customer shall have all services inspected without delay by qualified staff in accordance with the provisions of commercial law (Sections 377 and 378 of the German Commercial Code (HGB)) and shall notify the supplier in writing of any defects, providing a detailed description thereof. The customer shall thoroughly test each programme to ensure it is free from defects and suitable for use in the specific situation before commencing operational use of the programme. The Customer shall take appropriate precautions in the event that the software does not function properly (e.g. through fault diagnosis, test runs, regular checks of the results). In doing so, the Customer shall report any faults without delay. The customer shall ensure that the current data can be reproduced with reasonable effort from data sets held in machine-readable form.

2. Any error report must be made in writing and must include information on the nature of the error, the module, the browser type and version, and the platform on which the error occurred, as well as details of the tasks being carried out using the software when the error occurred.

3. aufwind may claim remuneration for the work it has carried out where it has taken action on the basis of an error report, without the customer having demonstrated a defect in the programme.

X. Liability for Defects / Material Defects / Legal Defects

1. aufwind warrants that the services, in particular the software provided, correspond to the state of the art at the time the contract was concluded and, in principle, possess the contractually agreed functionalities. However, aufwind cannot guarantee that the software provided will always run without interruption, free from errors and securely. Errors within the meaning of the warranty are exclusively reproducible errors caused by quality defects in the software. A functional impairment resulting from hardware defects, environmental conditions, incorrect operation, corrupted data, etc., does not therefore constitute an error.

2. aufwind may initially fulfil its warranty obligations for material and legal defects by rectification. Services may be repeated by aufwind. The rectification of software shall be carried out, at aufwind’s discretion, either by providing a new version of the programme or by aufwind demonstrating ways to avoid the effects of the defect. In this regard, the customer agrees to apply workarounds or adopt new programme versions, unless this would entail an unreasonable burden on their part. aufwind must be granted at least two attempts at rectification. Depending on the nature of the service to be provided, a higher number of rectification attempts may also be reasonable, without the rectification being deemed to have failed after two unsuccessful attempts.

3. If, after several attempts and despite a reasonable deadline set in writing, the rectification efforts ultimately fail, the customer shall be entitled to reduce the remuneration appropriately or to rescind the contract. Any other warranty claims are excluded.

4. The warranty claims are always subject to the customer giving notice of defects without delay and providing evidence that the defect is attributable to aufwind’s services. Late, insufficient or unfounded complaints release aufwind from its obligation to perform. Insofar as aufwind nevertheless takes action, the additional costs incurred as a result will be invoiced.

5. The warranty period lasts for twelve months and commences upon provision of the service; in the case of bespoke software development, it commences upon acceptance.

6. Third-party software used is excluded from the warranty. Any modifications or updates are not, unless explicitly described in the quotation, part of an order or support contract.

XI. Return of Goods

1. Upon termination of the contractual relationship, the party authorised to use the software is obliged to return all original data carriers as well as the complete documentation, materials and other records provided to them. The programme, together with the documentation, must be sent to aufwind free of charge. If transported by a third party, the consignment must be sent via a secure method (registered letter, insured parcel or similar).

B. Hosting

I. Description of the Service

1. Hosting of software on high-availability clusters (server systems).

Storage capacity (disk space) and data traffic per month are determined in accordance with the provisions of the individual hosting contract or the quotation. If no contract is in place or if nothing is specified in the contract or quotation, the monthly disk space and data traffic shall be 1 GB. Data traffic includes both incoming and outgoing data traffic for all services.

2. The availability of the aufwind high-availability cluster is 99.6 per cent, and the availability of the data paths within the data centre up to the point of connection to the internet (backbone) is at least 99 per cent on an annual average. aufwind draws the customer’s attention to the fact that restrictions or disruptions to the services provided by aufwind may arise which are beyond aufwind’s control. These include, in particular, actions by third parties not acting on behalf of aufwind, technical conditions of the internet over which aufwind has no influence, and force majeure. Similarly, the hardware, software or technical infrastructure used by the customer (e.g. a DSL connection) may also affect the services provided by aufwind. Insofar as such circumstances affect the availability or functionality of the service provided by aufwind, this shall not affect the contractual compliance of the service provided by aufwind.

3. aufwind carries out regular maintenance work on the systems to ensure the security of network operations, to maintain network integrity, the interoperability of services and data protection. For this purpose, aufwind may temporarily suspend or restrict the services, taking the customer’s interests into account, provided that there are objective grounds for doing so. aufwind will, as far as possible, carry out maintenance work during periods of low usage. Should longer-term temporary suspensions or restrictions on services be necessary, aufwind shall inform the customer in advance of the nature, extent and duration of the disruption, insofar as this is objectively possible under the circumstances and such notification would not delay the resolution of any interruptions that have already occurred.

4. Where static IP addresses are provided, aufwind reserves the right to change the IP address allocated to the customer if this is necessary for technical or legal reasons.

II. Terms of Payment

1. Monthly fees are payable one year in advance.

2. Claims by aufwind may only be set off against undisputed or legally established counter-claims.

3. If the customer falls into arrears, aufwind may suspend the services. The claim for payment shall remain valid.

III. Termination of the Hosting Contract or Hosting Services

1. Hosting contracts and hosting services shall have a term of one year, unless otherwise specified in the contract. The hosting service shall be tacitly renewed for a further year unless notice of termination is given in writing three months prior to the expiry of the term.

2. If domains are not transferred by the customer in good time via KK applications following termination, the hosting service is automatically extended for a further year.

IV. Obligations of the Customer

1. The Customer is obliged to provide all necessary data completely and accurately and to notify the Provider of any changes without delay.

2. The customer is obliged to configure their systems and programmes in such a way that neither the security, integrity nor availability of the systems used by aufwind to provide its services is compromised. aufwind may suspend services if systems operate or react in a manner deviating from normal operating behaviour and this thereby compromises the security, integrity or availability of aufwind’s server systems.

3. The customer undertakes to change any passwords issued to them without delay. They shall manage passwords and other access details with due care and keep them confidential. They are also obliged to pay for any services used or ordered by third parties via their access details and passwords, insofar as they are responsible for this. The unauthorised disclosure of access details to third parties constitutes a breach of criminal and copyright laws.

4. The customer shall create backup copies of all data transferred to aufwind’s servers on other data storage media not held by aufwind. In the event of data loss, the customer shall transfer the relevant data sets to aufwind’s server again free of charge. The customer is obliged to create regular backups of all data on the aufwind servers.

5. The customer is obliged to cooperate to a reasonable extent in the registration, transfer and deletion of domains, the amendment of entries in the registries’ databases, and when changing providers and registrars.

6. The customer is responsible for ensuring that their domain(s) and content do not infringe any legal provisions or the rights of third parties. aufwind points out that, where applicable – particularly in the case of international domains – other national legal systems must be observed.

7. The customer undertakes not to make available any domains or content that is of an extremist nature (in particular right-wing extremist) or that contains pornographic or commercial erotic material. This also applies where such content is made accessible via hyperlinks or other links placed by the customer on third-party websites.

8. The sending of spam emails is prohibited. This includes, in particular, the sending of unauthorised, unsolicited advertising to third parties. When sending emails, it is also prohibited to provide false sender details or to conceal the sender’s identity in any other way. The customer is obliged to make the commercial nature of any commercial communication clear by designing the email accordingly.

C. Creative Services

I. Scope of Services

1. The subject matter of the contract is the right to use a specific commissioned work and the granting of a non-exclusive and simple right of use to this work on a medium specified in the delivery note or, in the case of a work to be ordered and paid for separately, even if only in printed form.

2. Unless otherwise agreed, the client shall provide detailed specifications regarding the work to be produced (in writing in the form of a ‘specification sheet’, or verbally as part of a detailed briefing). The customer shall provide aufwind with all data necessary for production in good time. This also includes specifying how and where the work is to be used.

3. Any subsequent requests by the client for changes and/or additions shall only become binding once these have been confirmed in writing by aufwind and the parties have reached agreement on the amount of the fee due for this, or once delivery has taken place. If supplementary work and additions have been delivered, in the absence of an express agreement on remuneration, remuneration in accordance with aufwind’s standard hourly rates shall be deemed to have been agreed in cases of doubt.

4. aufwind is entitled to keep minutes of meetings with the client concerning the commission. As soon as these minutes have been provided to the client and the client has not objected to them in writing within one week of receipt, the contents of the minutes shall be deemed to form part of the contract.

5. Should it become apparent during the creation of the work that the client is required to provide information to aufwind, the client is obliged to do so without delay upon request.

6. Raw data relating to the work covered by the contract shall only be delivered to the customer on the basis of a separate written agreement. In principle, the customer has no entitlement to the handover of raw data.

II. Prices, Delivery, Payment

1. The remuneration for the services provided shall be determined by aufwind’s quotation, the rates and charges set out in the price list, or any other agreements with the customer accepted by aufwind in the order confirmation.

2. Prices are quoted in euros (EUR). Prices and costs/charges are exclusive of delivery charges and exclusive of statutory value added tax (VAT) at the rate applicable at the time the invoice is issued.

3. The prices stated in our quotation apply to the standard version described.

4. Any changes or additions requested by the customer will be charged additionally.

5. Subject to the following provisions, payment for the goods is due immediately upon receipt of the invoice, without any deduction. In the event of late payment, we are entitled to charge the customer for our own credit costs. We reserve the right to claim further damages.

6. For services not provided by aufwind at its registered office, travel costs, expenses and, where applicable, accommodation costs shall be invoiced separately.

7. Unless otherwise agreed, agreed fixed prices are due upon delivery. Fixed prices exceeding EUR 30,000 are due and invoiced as follows:

a) 50 per cent of the fixed price upon confirmation of the order or after conclusion of the contract;

b) 30 per cent of the fixed price upon handover of the first version of the work;

c) 20 per cent of the fixed price upon acceptance.

8. Services and work billed on a time-and-materials basis shall be invoiced monthly.

9. If services are not utilised after the contract has been concluded in the case of flat-rate or package prices, no subsequent price reduction shall be granted.

10. Unless prices have been expressly agreed in writing as binding, all information provided by aufwind regarding the expected time and cost involved in a commission is purely an estimate based on the requirements specified by the client and is non-binding. A price is only binding if it has been expressly designated as such.

11. In the event of the customer being in default, aufwind is entitled to declare all outstanding claims and all claims falling due until full settlement immediately due and payable. Without prejudice to the right to claim higher damages, aufwind is entitled to charge interest on arrears at a rate of eight percentage points (8.00%) per annum above the base rate of the German Bundesbank. The same shall apply if grounds for insolvency exist on the part of the customer, or if an application has been made or proceedings have been opened for insolvency in respect of their assets, or if the opening of such proceedings has been refused due to lack of assets.

III. Retention of Title

All goods delivered remain our property until all claims have been settled. In the event of the resale of the goods, aufwind must be informed so that the rights to use the goods can be released, insofar as an obligation to release such rights exists.

IV. Delivery Time

1. Delivery times are provided without obligation and are subject to change, unless a delivery date has been expressly stated as binding in the order.

2. If failure to meet performance deadlines is attributable to force majeure or to circumstances for which aufwind is not responsible (e.g. industrial action, force majeure, official orders, absence of staff or computer failure through no fault of aufwind, failure of suppliers to deliver, or failure of telecommunications providers), the performance deadlines shall be extended accordingly, without either party being entitled to withdraw from the contract. The same applies to the period during which aufwind is awaiting information, cooperation or decisions from the customer. Aufwind shall inform the customer of these circumstances without delay.

3. Aufwind is entitled to make partial deliveries and may also invoice these separately. Changes to and deviations from the services provided as set out in the quotation documents are permissible, provided that these are reasonable for the customer, taking into account Aufwind’s interests.

V. Cooperation by the Client

1. Insofar as necessary or useful for the performance of the contract, the client shall support Aufwind in the execution of the contract. In particular, the client shall, free of charge, create all the conditions within its sphere of operations that are necessary for the proper provision of Aufwind’s services. These conditions include, amongst other things, that the client

a) provides staff, workspaces, equipment and facilities, the relevant IT environment, telecommunications facilities and all necessary media in good time and to the extent required, and cooperates in relation to specifications, acceptance procedures, etc.,

b) appoints a contact person who is available to aufwind staff during the agreed working hours, whereby the contact person is authorised to make declarations necessary as interim decisions in the course of carrying out the contract,

c) shall at all times provide aufwind staff with access to the information necessary for their work and shall supply them in good time with all the necessary documentation.

VI. Acceptance

2. Acceptance shall also be deemed to have been declared if the Customer uses the work in live operation for more than one month without raising any objections, or expresses their approval in any other way, e.g. by remaining silent in response to a request for acceptance or by paying the remuneration.

3. For distinct and economically independent parts of the service, aufwind may require partial acceptance. In this case, the entire service shall be deemed accepted upon the final partial acceptance (final acceptance). Partial acceptances already carried out shall remain unaffected by the outcome of the final acceptance.

4. Where applicable, the contracting parties shall agree on further service milestones, upon the achievement of which the customer shall review and approve the status of the service. In this regard, the respective stage of performance shall be deemed to have been accepted no later than one week after the date on which aufwind presents the relevant work results to the customer or notifies the customer that the stage of performance has been reached, unless the customer gives notice of defects in writing and in a comprehensible manner.

VII. Duty to Inspect and Give Notice of Defects

1. The customer shall have all services inspected without delay by qualified staff in accordance with the provisions of commercial law (Sections 377, 378 of the German Commercial Code (HGB)) and shall give notice of defects in writing, providing a detailed description.

2. aufwind may claim remuneration for the work it has carried out insofar as it has acted on the basis of an error, without the customer having proved a defect in the work.

IX. Liability for Defects / Material Defects / Legal Defects

2. aufwind may initially fulfil its warranty obligations for material and legal defects by rectifying the defects. Services may be repeated by aufwind. Rectification shall be carried out, at aufwind’s discretion, either by providing a new version or by aufwind identifying ways to minimise the effects of the defect. The customer agrees to implement workarounds or accept new versions, unless this would entail an unreasonable burden on their part. Aufwind must be granted at least two attempts at rectification. Depending on the nature of the service to be provided, a greater number of attempts at rectification may also be reasonable, without the rectification being deemed to have failed after two unsuccessful attempts.

4. The warranty claims are always subject to the customer giving notice of defects without delay and providing evidence that the defect is attributable to the services provided by aufwind. Late, insufficient or unfounded complaints release aufwind from its obligation to perform. Insofar as aufwind nevertheless takes action, the additional costs incurred as a result shall be invoiced.

D. General Terms and Conditions for all contracts with aufwind

I. Liability

1. aufwind shall be liable without limitation in cases of wilful misconduct and gross negligence, as well as in the event of injury to life, limb or health. Liability for the breach of essential contractual obligations due to slight negligence is limited to the foreseeable damage typical for this type of contract. In such cases, aufwind shall only be liable for breaches of cardinal obligations. Otherwise, liability for slight negligence is excluded. This applies mutatis mutandis to liability on the part of legal representatives and vicarious agents. This limitation of liability applies to both contractual and tortious claims. The customer’s claims against us under the Product Liability Act remain unaffected by this provision.

2. Aufwind shall only be liable for the recovery of data if the customer has ensured that the data can be reproduced with reasonable effort. This limitation of liability shall not apply in cases of wilful misconduct or gross negligence.

3. Liability is excluded if the customer or a third party interferes with the software system, thereby causing malfunctions. The customer is obliged to maintain their own insurance cover to the extent customary in the industry and for the organisation’s structure (e.g. business interruption insurance).

II. Confidentiality

1. aufwind and the Customer mutually undertake to treat as confidential all information and documents that come to the other party’s knowledge in the course of the contract negotiations, the conclusion of the contract and the performance of the contract.

2. The duty of confidentiality shall not apply if and to the extent that the other party proves that the information was already known at the time of disclosure, was subsequently published or otherwise became known without any action on the part of the party bound by the duty of confidentiality, or was in the other party’s possession at the time of disclosure, unless it can be proven that it was obtained by the other party through third parties who were themselves bound by a duty of confidentiality towards the other party.

3. In the event that this contract is not concluded or is terminated, the duty of confidentiality shall remain in force for a further two years.

III. Miscellaneous Provisions

1. Any agreement on deviating provisions, additions to or amendments of this contract, as well as the setting of deadlines and notices of termination, must always be in writing to be valid. The contracting parties shall also fulfil the written form requirement by sending documents by fax or email. Annexes form an integral part of this contract.

2. Each contracting party may electronically store and process the other contracting party’s data that has become known to it in the course of the contractual relationship for internal purposes and for the performance of the contract. Disclosure to third parties is only permitted with the consent of the other contracting party.

3. All legal relationships between the contracting parties are governed by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

4. The place of performance and the place of jurisdiction for all disputes shall be the registered office of aufwind. aufwind shall also be entitled to bring proceedings at the customer’s place of jurisdiction or at any other court having jurisdiction under national or international law.