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

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.
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.
We will maintain administrative and technical provisions to safeguard the security and confidentiality of your data on a best effort basis.
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.
We will be responsible for the actions and performance of our employees or sub-contractors, as to comply with the terms specified herein.
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

You are solely responsible for your data submitted to any service, product or software.
You must only use any service, product, software, component or deliverable for the purpose of your business and in accordance with these terms.
You are responsible for paying any fees invoiced in due time, with a due date of 7 days after the invoice is issued.
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.
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.
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.
You will not redistribute, copy, sublicense or modify any service, product, software component, or deliverable unless expressly stated otherwise.
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

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 the 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 are to be entered in our customer support systems, mainly the helpdesk and/or issue tracker if you have access to these tools.
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.
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.
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.
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.
You agree to pay a development fee based on the actual time spent on developing a project, software, or component or on providing a service, such as consulting, training, and/or similar.
Development fees in effect (as per the previous point), are to be specified in an ongoing daily fee agreement (we term project contract fee) between you as a customer, and us, as a service provider.
If not agreed otherwise, payment for a service, product, software, component, or deliverable is to be made as follows:
50% of the total sum as agreed on a project offer, due 7 days after the project contract comes into effect ( meaning the start of work) and the invoice has been delivered to you
40% of the total sum of the project contract, 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
The term of 7 days after the invoice can be amended exclusively by Awesome Developers based on the payment history of the customer, in other words, if the customer is habitually late in paying and may be required to make pre-payment (deposit)
You have no rights to use the software developed, under any circumstances in the case that any outstanding amount is due and payable and Awesome Developers holds retention rights and does not grant any license of use while invoices are unpaid.
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)
You acknowledge that access to the helpdesk or issue tracker is granted by us to you and you do not have an explicit right to use these tools without a provisioned user account provided by us.

4. Access to Data, Services, and Infrastructure

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

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.
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, concerning perceived goals.
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.
We will endeavor to implement a project management process with you, that clearly defines the way how we and you cooperate
Unless stated otherwise, we will inform you of the progress on any development, once every two weeks.

6. Travel Expenses

In some cases, you may request the presence of one or more of our representatives on-premise.
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:
€0.30 per KM traveled if traveling by car
The full price of public or air transport fees to get to your destination and back to our offices, if using public transport (train, flights)
The full price of accommodation is limited to €150 per day per person traveling
A consultancy fee, based on the specific type of consultancy required (and by extension, the number of our employees), and the total amount of days spent on location, with the minimum fee being for one man-day
You may arrange for our accommodation yourself, in that case, clause 6.2.c does not apply.
We will make reasonable commercial efforts to use ordinary means of travel (train, common flights, and similar) and accommodation, so as not to incur any significant charges on your part above the usual average for the given destination.

7. Acceptance Procedures

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.
Unless requested otherwise, we will install the software on one of our servers for the purpose of testing.
Once installed (deployed), you are obliged to check the delivered product for any defects, within the period of 14 days (test period).
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.
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).
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.
After a defect is rectified, a subsequent test period of 14 days is in effect.
The test period ends whenever any of the following occurs:
No defects are reported in a period of 14 days after delivery, or after rectifying the last known defect
A written statement by you confirming, that the delivery has been accepted
Once the test period ends, the delivery is considered “accepted” by you.
You are obliged to provide us with a target system, server, or any technological means as appropriate for a given service, product, software, component or deliverable to be handed over to you for production use, based on requirements initially specified.
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.
Once the deliverable is accepted, we will provide training services concerning 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.
You are not entitled to the training services unless the delivery has been accepted.

8. Intellectual Property

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.
Specifically, in the case of open-source type licenses, we hereby state, that all such licenses are available when they are requested. Types of licenses applicable to any individual component are to be found either in the source code or in the package information of any specific component.
Any part of any service, creation, invention, idea, software, deliverable or component, and any related documentation or tools remains the Copyright and intellectual property of Awesome Developers; 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).
Any data you input into any service, product, software, deliverable, or component remains your sole property with all intellectual property rights therein.
Unless terminated under Section 15, we grant you a non-exclusive, non-transferable license to use and/or operate the intellectual property, service, product, software, deliverable, or component, and any such right may be withdrawn by Awesome Developers in case of any violation of these Terms or unpaid fees or invoices.
You grant us a license to use, copy, transmit, store, and back up your data to enable 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.
The Act of Copyright and Related Rights (Urheberrechtsgesetz) applies to this Section.

9. Support

Upon completion of a project, support and maintenance shall be provided to you, as a customer during standard business hours.
You have these options to get in contact with our support:
Helpdesk (available at Email (address: support@awesomedevelopers.eu)
Direct Contact with our representative assigned to you
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.
Support shall be provided based on a monthly fee in the range of 1 to 10 man-hours per month. The fee is equivalent to 15% of the total project invoiced price and is to be charged for the next 2 years after the acceptance and public use of the product, software, or deliverable unless stated otherwise and accepted by Awesome Developers in writing.
Support includes:
Any bugs, found after the delivery and acceptance of the product, software, or deliverable
Maintenance, to keep the delivered product, software, or deliverable up to date in terms of dependencies on third-party software, as necessary
Help with the operation of the delivered product, software, or package
Diagnosis of problems or issues and their resolution
Support services do not include the development of additional features or modification of the product, software, or deliverable, unless:
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
Without said modification, the service is inoperable, or diminished in functionality and does not serve its original purpose
Allocated support hours are valid for a given month, and do not transfer to the next.
If the amount of support required per month exceeds the 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 herein based on a worksheet provided by us with an invoice.
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 7 days after the delivery of the invoice.

10. Communication

Unless expressly stated otherwise, you agree that any 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.
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
The primary means of contact is electronic mail (E-mail)

11. Confidentiality

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.
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.
Unless this Agreement and its Terms are violated, each party’s obligations under this clause will survive the termination of these Terms unless this Agreement.
Each party will take it upon itself to impose confidentiality on all its employees and/or third parties.
Provisions of clauses 11.1, 11.2 shall not apply to any information, which:
Is, or becomes public knowledge
Is received from a third party who lawfully acquired it, without being in breach of confidentiality
Is independently obtained without access to confidential information
Is created, invented, or imagined by Awesome Developers and is therefore its intellectual property that cannot be claimed by you as privileged or confidential information.

12. Indemnification

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.
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

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.
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.
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.
You are obliged to notify us about any defect found within a reasonable period, via means of communication as stated in section 10
If we fail to correct an issue within a commercially reasonable time, you may terminate this agreement, as per section 15 with 6 months' written notice.
Any warranty claims are limited to 12 months following the acceptance of the service, product, software, component, or deliverable.
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

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.
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 a maximum of 12 months' worth of subscription fees, if the service provided by us is a subscription, or a maximum of the amount of €10.000, or 10% total value of the project (whichever is the lower sum).
If you decide to operate any service, product, or software on your infrastructure (servers or cloud platform), we will not be held liable for any breaches of security, data leaks, or 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, however, Awesome Developers maintains all intellectual property rights under these Terms in this Agreement herein and the Law.
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.
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.
If you as a customer are dissatisfied with the service, your sole and exclusive remedy is to terminate these Terms under section 15.4.

15. Termination

These Terms come into effect on the date you first accept them and continue to be in effect until all development work, subscriptions, obligations, contracts, or services are either terminated or fulfilled as specified herein and by section 15.2.
Either party may terminate the agreement without cause, upon six months' written notice to the end of the calendar month; the termination period starts on the 1st of the following calendar month after the delivery of the written termination notice.
During the termination period, all obligations outlined in these Terms are still in effect.
Nothing in this Agreement shall affect each party’s statutory right to terminate this agreement for cause and your right to terminate this agreement under the German Civil Code.
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.
If you as a customer terminate this agreement as per point 2 of this section, without us breaching any of our obligations, you shall be obliged to pay the balance of either the project fee or absent a project fee, then the total cost of the human resource dedicated to your project, in man-days, for the six months obligatory notice. In case you prepaid a deposit, 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 (under section 3 of these Terms).
Upon termination, you will cease to use or continue to develop any Intellectual Property of Awesome Developers unless you enter into a separate Copyright License agreement under the Act of Copyright and Related Rights (Urheberrechtsgesetz) after the date of the notice of termination.

16. Final Provisions

Each party declares, that it has validly entered into this agreement, and has the legal power to do so.
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.
This Agreement holds precedent and is superior over any other understandings or agreements and may not be nullified and shall be referred to on all invoices sent by Awesome Developers and all invoices received and paid shall constitute a contract and acceptance by you of these conditions.
If any Term, Section, or provision of this Agreement is or becomes invalid, unenforceable, or erroneous, the validity of the rest of these Terms will not be affected. The Parties shall make an effort to replace the invalid, erroneous, or unenforceable provision with 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.
You may not assign or transfer any rights of this Agreement or the intellectual rights in the developed software code to any other party who is not the contractual party without our prior, written consent of Awesome Developers. Such an assignment will require a separate compensation agreement.
We, Awesome Developers as a service provider, are obliged to inform you, as a customer, of each change of our place of business, or mail address.
A person or entity who is not a party to these Terms has no right to benefit under this Agreement and these Terms or to enforce any term or Section of these Terms.
In the event of any breach or violation of any provision of this Agreement, Awesome Developers shall retain full ownership and rights over all intellectual property under Section 8.3, including but not limited to all software, source code, documentation, designs, and copyrights 'Intellectual Property" created, developed, or produced under this Agreement. Upon such breach, and unless a remedy is reached, you shall forfeit any rights, and licenses, and Awesome Developers shall be entitled to the Copyright of software source code without further obligation to you. You are not permitted to operate the software until you remedy the breach within seven days of the breach.. Awesome Developers' retention of such rights shall be without prejudice to any other remedies available to Awesome Developers under law or equity, including claims for all resulting damages.
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.
Exclusive jurisdiction for all disputes between you as a customer and us Awesome Developers, as a service provider, arising from these Terms, is in the Courts of Berlin, Germany.