TERMS & CONDITIONS

General Terms of Service

 

The current revision of these Terms is in effect since Jan. 1, 2015


Thank you for choosing Awesome Developers as your partner. These Terms of Service serve the purpose of explaining and describing our obligations as a service provider, and your obligations as a customer. Please, do read these Terms carefully.

 

These Terms are in effect either once you have a written agreement with us, that will by default reference these Terms, or by using any of our services, helpdesk, portals and similar.
 

Awesome Developers reserves the right to change these terms at any time, effective immediately once posted on our website. We hereby declare, that we will take due care to notify you, as a customer, that our terms of service are about to be modified and make sure that you have received the updated document.
 

By using our services, you acknowledge, that you have read and understood these Terms and you have the authority to be bound by these Terms.

 

Definitions

 

Awesome Developers, Awesome Service Provider, We, Us, or Our - means Awesome Developers UG, as described at the beginning of these terms under the section Imprint - Company Details.

Customer, You
Your - means the company or other legal entity for which you are accepting these Terms of Service.
,


Service, Product, Deliverable, Software, Component - means a product or service Awesome Developers UG provides, for example, custom developed software, consulting services, maintenance and so forth.


Help Desk, Helpdesk - is a customer facing web service, available at http://support.awesomedevelopers.eu


Issue Tracker - is a software tool used by Awesome Developers UG internally to track work items and spent time. The customer may be granted access to this system.


Terms, Agreement - means this document, that is the “General Terms of Service”


Content, Your Data  - means any data, documents, graphics, text, reproductions and similar, material or electronic, submitted by you to any software, product or service, or given by you to us.

 

 

1. Our Responsibilities

 

  1. We will make best efforts to deliver to you a service, product, software, component or deliverable, that is fit for purpose as required by you, in the appropriate quality for a given purpose and if possible, in a timely fashion.

  2. If the service provided is a public operation of a service, product or software (public meaning operation of such service on the internet network), we will use commercially reasonable efforts to make such services available 24 hours a day, 7 days a week, except for planned downtime. Any unavailability caused by circumstances beyond our reasonable control, Internet or service provider failure, delay or malfunction, or Malicious attacks against the service.

  3. We will maintain administrative and technical provisions to safeguard the security and confidentiality of your data on a best effort basis.

  4. In case a service, product or software is operated on your infrastructure, we will give operational and security recommendations as to how to operate such service.

  5. We will be responsible for the actions and performance of our employees or sub-contractors, as to comply with the terms specified herein.

  6. We may make beta services or beta quality service, product or software available to you at no charge. In such a case, it is entirely up to you if you choose to use such a service, product or software. In no way, we warrant or guarantee any proper operation of such service and hereby state that such a product is not intended for production use.

 

2. Your Responsibilities

 

  1. You are solely responsible for your data submitted to any service, product or software.

  2. You must only use any service, product, software, component or deliverable for the purpose of your business and in accordance with these terms.

  3. You are responsible for paying any fees invoiced in due time, with a due date of 7 days after the invoice is issued.

  4. In case you are provided with a subscription-based service, support services, or any other service based on monthly recurring payments, we will issue an invoice on the first business day in a given month. We will continue invoicing you monthly, until an agreement to provide such a service is terminated, either according to a specific, separate agreement or in accordance with section 15.

  5. If any data you submit into any service, product or software provided by us cause a service disruption, partial or full malfunction, or breakage, you are obliged to remove such a piece of data and contact us for support. We may take steps to remedy such incident, if technically feasible, of a bad input in the future, but are in no way bound to do so. You acknowledge, that you may be directed not to use a specific piece of data (mainly dynamic or interactive scripts to be injected into a service, product or software) and you are obliged to comply with such request.

  6. You must ensure, that any and all access credentials to any of service, product or software are safeguarded against misuse, theft or abuse using commercially reasonable efforts.

  7. You will not redistribute, copy, sublicense or modify any service, product, software component, or deliverable unless expressly stated otherwise.

  8. You will not make any service, product, software component or deliverable available for use, modification, sublicensing or distribution by a third party unless expressly stated otherwise.

 

 

3. Requirements, Time Schedule, Service Fees

 

  1. You, as a customer, are obliged to clearly, and with the best possible accuracy and detail, communicate your requirements for a service we provide. The requirements can take these forms:

    • Specification of the project or service in a written form

    • If you are provided with access to our customer support systems, mainly helpdesk and/or issue tracker, you can use these tools to submit your requirements. In such a case, the requirements input into any of these systems have the same validity as if submitted as per the previous point.

    • We will provide you with a time estimate based on the requirements submitted. The estimation may be given as:

    • A general schedule of work for an entire project or service provided by us

    • Individual estimates to be entered in our customer support systems, mainly helpdesk and/or issue tracker, if you have access to these tools.

  2. Any submitted task or requirement will not be implemented in action unless you give us consent to proceed after the initial estimate is available to you.

  3. You acknowledge, that the time estimate or estimates may not be accurate, due to unknown factors, unforeseen technical problems and/or delays, unclear requirements or the original requirements being outdated or deemed insufficient during the implementation of the requested task. We as a service provider give estimates on the best effort basis and are by no means to be taken as a guarantee, that the time target will be met.

  4. We reserve the right to change the time estimates and associated costs to you, at the first opportunity when such estimate correction is either necessary or any new circumstances directly or indirectly influencing the original estimate are discovered.

  5. We are obliged to inform you about circumstances in the previous point at the earliest opportunity, via means of communication as described in section 10.

  6. You agree to pay a development fee based on the actual time spent on developing a project, software, component or on providing a service, such as consulting, training, and/or similar.

  7. Development fees in effect (as per the previous point), are to be specified in a contract (project contract) between you as a customer, and us, as a service provider.

  8. If not agreed otherwise, payment for a service, product, software, component or deliverable is to be made as follows:

  9. 50% of the total sum of the project, as agreed in a project contract, due 7 days after the project contract comes into effect and invoice has been delivered to you

  10. 40% of the total sum of the project, after delivery, when acceptance on your part can begin (as defined in section 7, specifically clause 7.3), due 7 days after an invoice has been delivered to you

  11. 10% of the total sum of the project, after you accepted the service, product, software, component or deliverable (as per section 7, specifically clause 7.9)

  12. You acknowledge, that access to helpdesk or issue tracker is granted by us to you and you do not have an explicit right to use these tools without provisioned user account provided by us.

 

 

 

4. Access to Data, Services, and Infrastructure

 

  1. You will provide us with any data or content, material or electronic, necessary to provide, develop, or fulfill the specified service, product, software, component or deliverable.

  2. We are not obliged to perform any checks on the correctness, or suitability of material handed to us.

  3. If necessary, you shall provide the required cooperation, and allow us to access any third-party services you may wish to use with, or parallel to the service, product, software, component or deliverable for the purpose of integration, without any unreasonable delay

  4. If necessary, we may request to access your infrastructure, for the purpose of setting up a suitable environment to run any service, product, software, component or deliverable. You are obliged to grant us such access, if permissible by law and/or your internal process.

  5. We hereby state, that we will take the utmost care not to disturb any services in use by you, or cause any downtime of infrastructure you own, unless absolutely necessary.

  6. We will not leverage access to your data, services and/or infrastructure to obtain any confidential information, as specified in section 11.

 

 

 

5. Project Management

 

  1. You are considered a stakeholder in any service, product, software, component or deliverable development and/or implementation. You acknowledge, that you are solely responsible for requesting specific features and specifications thereof, and we are not liable to any extent as permitted by law if any such requested feature does not meet your operational requirements.

  2. We will undertake to warn you, on a non-guaranteed, best effort basis, if any requested feature or modification of behavior is in contradiction with the general purpose of any service, product, software, component or deliverable being developed or implemented by us, with respect to perceived goals.

  3. Unless stated otherwise, you are to appoint one single person as a “product owner”, to be the authority on the planning, execution and specific implementation of any requested features, both in time and operation.

  4. We will endeavor to implement a project management process with you, that clearly defines the way how we and you cooperate

  5. Unless stated otherwise, we will inform you of the progress on any development, once every two weeks.

 

 

6. Travel Expenses

 

  1. In some cases, you may request the presence of one or more of our representatives on-premise.

  2. If such an event occurs, you are obliged to reimburse us for travel expenses, provided the location is not in the place of our office, as follows:

  3. €0.30 per KM traveled if traveling by car

  4. The full price of public transport fees to get to your destination and back to our offices, if using public transport (train, flights)

  5. The full price of accommodation, limited to €100 per day per person traveling

  6. A consultancy fee, based on the specific type of consultancy required (and by extension, number of our employees), and the total amount of days spent on location, with minimum fee being for one man day

  7. You may arrange for our accommodation yourself, in that case, clause 6.2.c does not apply.

  8. We will take reasonable commercial efforts to use ordinary means of travel (train, common flights and similar) and accommodation, as not to incur any significant charges on your part above usual average for the given destination.

 

 

7. Acceptance Procedures

 

  1. Any service, product, software, component or deliverable will be made available to you, by us, usually as an installable package, or readily prepared to be used on a server.

  2. Unless requested otherwise, we will install the software on one of our servers for the purpose of testing.

  3. Once installed (deployed), you are obliged to check the delivered product for any defects, within the period of 14 days (test period).

  4. Any defects found in the test period are to be submitted to us in writing or using our helpdesk system. All such defects must be marked as “bug”, “problem”, “error”, “defect” or similar.

  5. If anyone specific reported defect is deemed to be an additional request for a new feature, it is not to be considered a defect as per this section (section 7).

  6. If any errors occur during the test period, we will make the best effort to remedy the defect in a timely fashion, without further costs to you.

  7. After a defect is rectified, a subsequent test period of 14 days is in effect.

  8. The test period ends whenever any of the following occurs:

  9. No defects are reported in a period of 14 days after delivery, or after rectifying of the last known defect

  10. A written statement by you confirming, that the delivery has been accepted

  11. Once the test period ends, the delivery is considered as “accepted” by you.

  12. You are obliged to provide us with a target system, server or any technological means as appropriate for given service, product, software, component or deliverable to be handed over to you for production use, based on requirements initially specified.

  13. Any failure to comply with such requirements as defined in the previous point, therefore preventing the delivery to be used in production is not a basis for withholding any remaining fees to be paid by you to us for services rendered.

  14. Once the deliverable is accepted, we will provide training services with respect to the service, product, software, component or deliverable, limited to 24 man hours (3 man-days) in total; you are eligible to utilize the maximum of 24 man hours in total worth of training services during a period of 3 months after the acceptance of the deliverable.  Any further training may be obtained from us at the support hourly rate, as agreed upon in a specific contract between you and us.

  15. You are not entitled to the training services unless the delivery has been accepted.

 

 

8. Intellectual Property

 

  1. Any service, product, software, component or deliverable may contain intellectual property or a third-party. In such cases, we guarantee, that we comply with legal provisions we are obliged to fulfill under the terms imposed on us by those third-party components.

  2. Specifically, in the case of open-source type licenses, we hereby state, that all such licenses are available on our website (https://awesomedevelopers.eu/licenses). Types of license applicable to any individual component are to be found either in the source code or in the package information of any specific component.

  3. Any part of any service, product, software, deliverable or component, and any related documentation or tools remains the intellectual property of Awesome Developers UG, unless explicitly stated otherwise; if any part of the product is encumbered by a third-party license of any sort, that license is to be preserved and said part is exempt from this clause (8.3).

  4. Any data you input into any service, product, software, deliverable or component remains your sole property with all intellectual property rights therein.

  5. Unless terminated under section 15, we grant you a non-exclusive, non-transferable license to use and/or operate the service, product, software, deliverable or component unless explicitly stated otherwise in a separate project contract.

  6. You grant us a license to use, copy, transmit, store and back up your data for the purpose of enabling us to maintain, troubleshoot and further develop any service, product, software, deliverable or component that is directly used by you, you are subscribed to, or in any other form being consumed by you.

  7. The Act of Copyright and Related Rights (Urheberrechtsgesetz) applies to this Section. 

 

 

9. Support

 

  1. Upon completion of a project, support and maintenance shall be provided to you, as a customer during standard business hours.

  2. You have these options to get into contact with our support:

  3. Helpdesk (available at https://support.awesomedevelopers.eu)

  4. Email (address: support@awesomedevelopers.eu)

  5. Direct Contact with our representative assigned to you

  6. You acknowledge, that you will reach out for support in the order, as listed in the clause above, that is using our helpdesk first, email contact second, and direct contact as the last measure.

  7. Support shall be provided on a basis of a monthly fee in the range of 0 to 10 man-hours per month. The fee is equivalent to 15% of the total project price and is to be charged for the next 2 years after the acceptance of the product, software or deliverable unless stated otherwise.

  8. Support includes:

  9. Any bugs, found after the delivery and acceptance of the product, software, or deliverable

  10. Maintenance, for the purpose of keeping the delivered product, software or deliverable up to date in terms of dependencies on third-party software, as necessary

  11. Help with the operation of the delivered product, software or package

  12. Diagnosis of problems or issues and their resolution

  13. Support services do not include the development of additional features or modification of the product, software or deliverable, unless:

  14. The new modification, feature or development can be considered small, that is, the actual time required to implement such modification does not exceed 1 hour

  15. Without said modification, the service is inoperable, or diminished in functionality and does not serve its original purpose

  16. Allocated support hours are valid for a given month, and do not transfer to the next.

  17. If the amount of support required per month exceeds hitherto agreed upon amount (as per clause 9.4), you acknowledge that you will be obliged to pay a fee for the support services as specified in a contract (project contract) between you and us, that references these Terms, based on a worksheet provided by us with an invoice.

  18. Any fees connected with our support services (as per the previous point) are to be invoiced at the end of the calendar month and are to be due in 7 days after the delivery of the invoice.

 

 

 

10. Communication

 

  1. Unless expressly stated otherwise, you agree that any and all communication with you as a customer, may be carried via electronic mail, our support system (helpdesk and/or issue tracker), direct contact or direct mail.

  2. Notices sent to you in a manner described in the previous point include, but are not limited to:

    • Exchange of necessary data

    • Deliverables

    • Invoices

    • Estimates

    • Support

  3. The primary means of contact is electronic mail

 

 

 

11. Confidentiality

 

  1. Confidential Information means any information coming to the knowledge of the receiving party, material or electronic, concerning the business practices and processes of the other party.

  2. Unless the relevant party has the prior written consent of the other or unless required by law, each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms.

  3. Each party’s obligations under this clause will survive termination of these Terms

  4. Each party will take upon itself to impose confidentiality on all its employees and/or third parties.

  5. Provisions of clauses 11.1, 11.2 shall not apply to any information, which:

  6. Is, or becomes public knowledge

  7. Is received from a third party who lawfully acquired it, without being in breach of confidentiality

  8. Is independently obtained without access to confidential information

 

 

 

12. Indemnification

 

  1. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that any service, product, or software delivered or operated by us infringes on such third party’s intellectual property rights and will indemnify you from any damages, legal fees, costs and accordingly, hold you, as a customer, harmless.

  2. You will defend us against any claim, demand, suit, or proceeding made or brought against us by a third party alleging that any of your data or content is in violation of any third party’s intellectual property rights, or applicable law and will indemnify us from any damages, legal fees, costs and accordingly, hold us, as a service provider, harmless.

 

 

13. Warranty

 

  1. In the event service, product, software, component or deliverable is defective in any way, we are entitled at our sole discretion to correct the defect.

  2. We can correct a defect by either delivering a new version of the service, product, software, component or deliverable, or by modifying the current version.

  3. We can correct a defect at our sole discretion, whenever we deem necessary, on a best effort basis without making any sort of guarantee, when such a defect may be corrected.

  4. You are obliged to notify us about any defect found within a reasonable period of time, via means of communication as stated in section 10

  5. If we fail to correct an issue within a commercially reasonable time, you may terminate this agreement, as per section 15 with 6 months notice.

  6. Any warranty claims are limited to 24 months following the acceptance of the service, product, software, component or deliverable.

  7. Warranty claims cannot be raised, if the defect occurs with a newer version of a third-party software the service, product, software, component or deliverable is used with, and which has not been available before and during acceptance of the product. This includes, but is not limited to:

    • Newer or updated internet browser versions

    • Updated, changed or modified versions of integrated third-party services or APIs

 

 

14. Limitation of Liability

 

  1. To the maximum extent permitted by law, Awesome Developers shall in no event be liable to you (or any other person) in contract, tort (including negligence) or otherwise for any loss (including loss of data and/or profits, loss of business opportunity, business interruption, impact on business, use or content) or damage resulting either directly or indirectly from any action on our part.

  2. Should you suffer any damages, as a result of us failing to comply with any part of these Terms, or any other written agreement or contract, any claim against Awesome Developers shall be limited to: Maximum 12 months worth of subscription fees, if the service provided by us is a subscription Maximum of €10.000, or 10% total value of the project (whichever is the lower sum), if the service provided is a project, as agreed upon by the project contract

  3. If you decide to operate any service, product or software on your own infrastructure, we will not be held liable for any breaches of security, data leaks and similar, as you are the sole operator of the system in that case. We will give you operational and security advice, if you so choose, without any guarantee, liability or warranty.

  4. We are completely exempt from any liability, direct, implied or otherwise if an incident was caused by misuse or malintent with valid access credentials to a service, product, software, component or deliverable.

  5. We adhere to our own best practice policies and procedures to prevent data loss, including a daily data snapshot backup system, but we do not make any guarantees that no data loss will occur. We expressly exclude liability for any loss of data no matter how caused.

  6. If you as a customer are dissatisfied with the service, your sole and exclusive remedy is to terminate these Terms in accordance with section 15.

 

15. Termination

 

  1. These Terms come into effect on the date you first accept them and continue to be in effect until all subscriptions, obligations, contracts or services are either terminated or fulfilled as specified.

  2. Either party may terminate the agreement without cause, upon six months written notice to the end of the calendar month; termination period starts on the 1st of the following calendar month after the delivery of the written termination notice.

  3. During the termination period, all obligations set forth in these Terms are still in effect.

  4. Nothing in this agreement shall affect each party’s statutory right to terminate this agreement for cause and your right to terminate this agreement in accordance with the German Civil Code.

  5. An important cause for termination exists in particular if insolvency proceedings over the assets of the other Party are opened or if such an opening is rejected for lack of assets.

  6. If you as a customer terminate this agreement as per point 2 of this section, without us breaching any of our obligations, we will not be obliged to pay you back for services already rendered, even in the case that the final result is not completed or usable as per requirements (pursuant to section 3 of these Terms).

  7. Upon termination, you will cease to use any Intellectual Property of Awesome Developers unless you enter into a separate Copyright License agreement under the Act of Copyright and Related Rights (Urheberrechtsgesetz). 

 

16. Final Provisions

 

  1. Each party declares, that it has validly entered into this agreement, and has the legal power to do so.

  2. You agree, that we may identify you as our customer on our website and or marketing material, and use your logo for that purpose. You are exempt from this clause if you provided a notice expressly stating to the contrary.

  3. Amendments and supplements to this Agreement, including the agreement of the annulment of this written form requirement, shall be made in writing.

  4. If any provision of this Agreement is or becomes invalid or unenforceable, then the validity of these Terms will not be affected. The Parties shall make an effort to replace the invalid or unenforceable provision by a valid and enforceable provision that is as close as possible to the invalid or unenforceable provision from an economic point of view. The same applies in the case of a loophole.

  5. You may not assign or transfer any rights to any other party without our prior, written consent.

  6. We, as a service provider are obliged to inform you, as a customer, of each change of our place of residence, or mail address.

  7. A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.

  8. This agreement is the entire agreement between you as a customer and us, as a service provider and supersedes all prior agreements or proposals, written or oral, concerning its subject matter. Any modifications, amendments or waivers of any provision of these Terms have to be in writing and signed by both parties.

  9. Exclusive jurisdiction for all disputes between you as a customer and us, as a service provider, arising from these Terms, is in Berlin, Germany.

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