1 Scope of Application
1. Applicability: These General Terms and Conditions apply to business relationships between DastN GmbH, Haus Cumberland, Kurfürstendamm 194, 10707 Berlin, Germany “DastN” and its Clients and are valid for all services offered by DastN.
2. Target Audience: DastN's services and offers are exclusively intended for businesses and not individuals.
3. Changes to Terms and Conditions: DastN reserves the right to make changes to these General Terms and Conditions. In such cases, DastN will notify the Client about the changes. If the Client does not object to the changes within a four-week period, the changes will be considered accepted.
4. Incorporation of Client Terms: The terms and conditions of the Client may be integrated into the Proposal if they exist or are adopted through a separate agreement between the two parties.
5. Priority of Proposal Terms: If provisions in the Proposal conflict with individual provisions of these General Terms and Conditions, the provisions in the Proposal shall take precedence. Unless the Proposal specifically modifies any of the terms, the validity of these General Terms and Conditions shall otherwise remain unaffected.
6. Binding Proposals: Proposals made by DastN are considered non-binding unless expressly designated as binding. DastN shall be bound by a binding offer for 15 days from the date of submission of the proposal unless otherwise specified in the Proposal.
7. Validity of Side Arrangements: Side arrangements will be considered valid only upon receipt of electronically signed written confirmation. In this context, emails shall be recognized as a valid form of written communication.
2 Services
1. The services and their associated costs are outlined in detail within the Proposal and/ or Quotation prepared for the Client There are different service categories,
2. Services include the area of IT consulting, software development, digital marketing, branding, e-commerce, business consulting, business analysis, business development, ERP implementation, digitalization, web development, cybersecurity and app development.
3 Contract Conclusion
In instances where contracts are formed through the Client's acceptance of the provided Quotation, and unless stated otherwise in the Proposal, the contractual agreement shall come into effect on the date when the Client's signature is affixed.
4 Performance obligations
1. Scope of Services: The scope of services provided by DastN is defined by the Proposal and approved specifications.
2. Scope Changes: The scope outlined in the Proposal cannot be altered, expanded, or amended without mutual consent from both contracting parties.
3. Exclusive Services: The services, including deliverables, are exclusively provided for the Client and are intended for the purposes specified in the Proposal.
4. Personnel Substitution: DastN retains the right to substitute assigned personnel or third parties with equivalent qualifications as necessary, with all invoicing still managed through DastN.
5. Client Obligations: Failure by the Client to fulfill its obligations as outlined in the Proposal may impact scheduled due dates, timelines, and potentially result in fee adjustments.
6. Compensation Adjustments: If circumstances primarily or solely attributable to the Client impede the execution of contractual obligations (e.g., failure to provide necessary cooperation, delayed provision, or payment delays), DastN reserves the right to request reasonable compensation adjustments.
7. Client Review: For partial deliveries that require Client review before progressing to the next project phase, the review and response period is typically set at 48 hours, unless specified differently in the Proposal. If the Client fails to respond within the specified timeframe without reasonable cause, DastN retains the right to continue with the project, considering the partial deliveries as approved by the Client.
8. Reuse of Components: DastN has the right to reuse any component or code created or acquired for the current Client's service request with other Clients.
5 Obligations of the Client
1. Accuracy of Information: The Client guarantees that all information they provide will be truthful, accurate, and not misleading. They shall not present false facts or violate any rights of third parties or any existing agreements. Furthermore, the provided information will comply with all applicable laws and regulations and will not involve the illegal use of any information, data, or personal data. It will also be free from viruses or programs that could cause harm or intercept data.
2. Account Security: The Client is responsible for maintaining the confidentiality of their account access credentials for DastN's services. They are liable for all activities carried out through their account and agree to:
I. Promptly report any unauthorized use of their account or security breaches to DastN.
II. Ensure they log out of their account after each session. In the event of unauthorized account access by third parties, immediate notification to DastN is required.
DastN shall not be held responsible for any losses, damages, or liability claims arising from the Client's failure to fulfill these obligations or any unauthorized access or use of the Client's account.
3. Cooperation Duties: The Client agrees to cooperate with DastN in the following ways:
I. Provide and maintain the necessary technical infrastructure, including hardware and software, to use the software solutions provided by DastN.
II. Grant access to the required IT systems and provide all necessary documents to enable DastN to fulfill its obligations.
III. Inform software users, including employees and third-party users, about their rights and responsibilities related to the software's usage.
IV. Appoint at least one designated 'contact person' to liaise with DastN during the project.
4. Timely Implementation: The Client shall promptly implement any current requirements as necessary for the project.
5. Non-Solicitation: During the term of the Agreement and for a period of six months following its conclusion , the Client is prohibited from directly or indirectly enticing away employees and freelancers of DastN or any third parties engaged by DastN.
6. Additional Field Visits: If the project requires field visits by the DastN team that were not initially included in the Proposal, these visits will be considered as paid services, and the Client is responsible for compensating DastN for these "additional services”.
7. On-Site Presence: If the Client requires DastN staff members to be present at their headquarters during the project's implementation period, unless this on-site presence was included in the initial project Proposal, it will be considered an "additional service”.
8. Billing for Additional Services: The cost for additional services, including field visits and on-site presence, will be billed separately from the main project fees.
6 Acceptance
1. Testing and Defect Notification: The Client is responsible for conducting testing and promptly notifying X in writing of any defects within the agreed number of days following the delivery of relevant work results, phases' deliverables, including milestones deliverables and/ or final deliverables.
2. Acceptance Conditions: Work results, phases’ deliverables and/ or final deliverables shall be deemed accepted under the following conditions:
I. If, due to reasons attributable to the Client, testing and acceptance could not take place within the agreed timeframe following the delivery of the respective work results or phase deliverables.
II. If such work results or phases' deliverables have been deployed and are in active use.
3. Upon (deemed) acceptance, DastN shall be liable for any bugs and errors covered by the guarantee or any other support agreement.
Upon (deemed) acceptance, DastN assumes liability for any bugs and errors that are covered by the warranty or any other support agreement.
7 Remuneration; terms of payment
1. The amount of remuneration depends on the services ordered by the Client. All payment methods, such as partial payments, discounts, and others, are regulated in the Quotation, Proposal, emails, or any other method accepted by both parties. The same applies to travel expenses, if applicable.
2. All prices are net prices and are to be paid in addition to the applicable VAT.
3. Client payments are due within 7 days of receiving a Quotation (unless otherwise mentioned in the Proposal)and must be made in favor of Das. All payment methods and account details are specified in the Proposal.
4. In the event of the Client falling behind on payments, the delivery of the project will be delayed, and DastN shall be entitled to refuse the provision of further services, even from other contracts. The Client's payment obligation remains unaffected by this.
8 Data security, data protection, secrecy, confidentiality
1. Data Backup: Prior to the implementation of the System by DastN, the Client shall perform a data backup.
2. Confidential Information: Unless explicitly agreed upon otherwise in writing, information submitted to X shall not be considered confidential, except for passwords and code words. Confidential information is limited to data clearly marked as such.
3. Non-Disclosure: The Client agrees to maintain the secrecy of any and all information and documents deemed confidential and accessible in connection with the contract's conclusion. Unless necessary for realizing the contractual objective, the Client shall not record, disclose, transmit, or exploit such information. This obligation also extends to ideas and concepts disclosed during the implementation stage or collaboration.
4. Protection of Confidential Information: During the term of this agreement and thereafter, DastN will exercise reasonable care to prevent the unauthorized use or dissemination of the Client's confidential information.
5. Exclusions from Confidential Information: The Client's confidential information does not include data that DastN was aware of before the Client disclosed it; information that becomes public knowledge without DastN’s fault; information obtained by DastN from sources other than the Client, who do not owe any duty of confidentiality to the Client; or information independently developed by DastN.
6. Unauthorized Disclosure or Use: Disclosing or using confidential information for any purpose beyond the scope of this Agreement or beyond the exceptions mentioned above is expressly forbidden without the prior consent of the Parties.
7. Additional Agreements: Any other non-disclosure or property protection agreements approved and signed between the parties shall be considered an integral part of these Terms.
9 Right of Use
1. Grant of Right: DastN grants the Client a non-exclusive, non-sublicensable, non-transferable right of use, with no time or geographical restrictions, for all deliverables, solely for the Client's internal business purposes.
2. Third-Party Software: Clause 8.1 does not apply to third-party software or tools that are subject to their own license conditions, even if they are part of the Deliverables. The use of any third-party software solution within the scope of the Project requires the Client to enter into an appropriate license agreement with the third-party provider. The Client shall ensure the timely conclusion of the necessary license agreement for required software solutions.
3. Licenses for Third-Party Software: The Client is responsible for obtaining the licenses required to operate third-party software directly from the manufacturer (e.g., Odoo). The Client must directly negotiate and execute the corresponding license agreement with the manufacturer.
4. Exceptions: Any exceptions to the above terms must be explicitly stated in the Proposal.
10 Liability
1. Liability Insurance: DastN maintains liability insurance covering damages caused to the Client by any of DastN's employees.
2. Cybersecurity Insurance: DastN has Cybersecurity Insurance that covers any cyber attack affecting the Client resulting from an attack initiated by DastN.
3. The Client has the right to access and review these two insurance contracts.
4. Client's Use of the System: DastN holds no liability to any party for the Client's use of the System, its applications, or any other deliverables at any current or subsequent stage.
5. Data Loss or Damage: DastN is not liable for data loss or damage resulting from the Client's inability to work productively with the System.
6. Errors in Third-Party Software: DastN is not liable for errors occurring when connecting third-party software that exclusively result from the third-party software's domain.
7. Maximum Compensation: In any case, the maximum compensation DastN can provide for any damage or breach of its obligations is to offer free service to the Client.
8. Validity of Conditions: The conditions stated above shall be considered valid and effective unless indicated otherwise in the Proposal.
11 Warranty
1. Rectification of Defects: If the Client discovers any defects or non-conformities in any of the deliverables that prevent them from performing their intended functions as specified in the Proposal, DastN shall, at its own expense, promptly and diligently rectify and correct such defects.
2. Exclusions from Warranty: The warranty provided herein shall not apply to any defects or non-conformities caused by:
I. Modifications, alterations, or changes to the deliverable made by any party other than DastN without DastN prior written consent.
II. Use of the Software in a manner or for a purpose not reasonably contemplated or intended by this agreement.
III. Failure to follow any instructions, recommendations, or specifications provided by DastN.
IV. Any third-party software, hardware, or systems with which the Software interfaces or integrates.
V. Any unauthorized access, tampering, or breaches of security not directly attributable to DastN actions or omissions.
VI. Updates to any of used programming languages or hosting changing.
3. Remedies:
I. In the event of a defect or non-conformity covered by this warranty, the Client shall promptly notify the Developer in writing, providing a detailed description of the issue and any relevant evidence or documentation.
II. DastN sole obligation and liability under this warranty shall be, at its discretion, to either: (a) Repair the defective portion of the Software; or (b) Refund a reasonable portion of the fees paid by the Client for the deliverable, in the event the defects cannot be reasonably rectified.
4. Exclusions and Limitations: Except as expressly set forth in this clause, DastN makes no other warranties, express or implied such as warranties of merchantability.
12 Support
1. Support Services: DastN may provide ongoing support and maintenance services for services delivered to the Client as specified in the Proposal.
2. Fees and Payment: The Client agrees to pay the fees associated with the support and maintenance services as per the terms specified in the Proposal.
13 Modifications and Data Migration
1. Modifications and Additions: Any modifications or additions to the specifications, workflow, or database that go beyond the original project scope are considered new projects and are not covered by the warranty or support agreements.
2. Blind Data Migration: In the event that the Client requests data migration, DastN will perform a blind migration without access to or inspection of the data being transferred.
3. Old Data Transfer: DastN is not responsible for transferring any old data to the Client. The responsibility for the transfer and backup of old data lies solely with the Client.