OverStartup GmbH


OverStartup GmbH

Paul-gerhardt-allee 59
81245 München
hereinafter referred to as “Provider”.

1. Preamble, scope, definitions

1.1 The provider provides work and services in the field of IT and multimedia (Internet, CD-ROM). This includes, among other things, programming, hardware/software configurations and installations, the creation of computer-supported layouts and graphics, events, rollout, VoIP solutions, photo & film, domain and hosting, colocation, marketing, the creation of concepts, SEO, SEA and editorial and research work (hereinafter collectively referred to as “products” or “product”) and finally SEA consulting, SEO editing, marketing, promotion, management and consulting services (hereinafter collectively referred to as “services” or “service”). In addition to the provider, other contractors are often involved in the implementation of a customer's project. In many cases these are agencies that, for example, simply insert editorial content based on a homepage, a layout, etc. created and programmed by the provider.
1.2 The purpose of these General Terms and Conditions is, among other things, to grant authorized customers the corresponding rights of use to the provider's services and, on the other hand, to avoid improper exercise of the rights of use by third parties.
1.3 The following terms and conditions apply to the use made possible by the provider of all products or services provided to the customer. These Terms also apply to any update to the Products.
1.4 The customers receive the rights to use the products from the provider under the following conditions.
1.5 The following general terms and conditions of the provider apply exclusively; Conditions of the customer that conflict with or deviate from the provider's general terms and conditions will not be recognized unless the provider has expressly agreed to their validity in writing. The provider's general terms and conditions also apply if the provider carries out the delivery or service to the customer without reservation in the knowledge that the customer's conditions conflict with or deviate from the general terms and conditions. The provider's general terms and conditions also apply to future transactions with the customer that fall within the scope of No. 1.1. An unconditional execution of a delivery or service does not constitute implied consent to the customer's general terms and conditions that deviate from the provider, even if the provider is aware of the deviations.
1.6 These General Terms and Conditions only apply to companies and legal entities under public law and special funds under public law within the meaning of Section 310 Paragraph 1 BGB.
1.7 The agency will look after the interests of the customer to the best of its ability and knowledge. The customer, for his part, will provide all required market, production and sales figures and other data essential to the agency's performance for strict confidential treatment in the spirit of trusting cooperation.

1.7 In these terms and conditions:
Data carrier: electronic storage medium such as B. USB stick, diskette, magnetic tape, CD-ROM or hard drive for permanent storage of machine-readable information;
Download: the remote data transmission for the permanent electronic storage of machine-readable works or other data stored electronically in a database on the end user's computer;
Computer: technical device used by the user to process machine-readable data, including memory, screen and printer;
Storage: the electronic entry of works or other machine-readable data into a computer using a keyboard, their recording in machine-readable form on data carriers or their electronic entry using a scanner.
If, during the course of use, disagreements arise between the contracting parties regarding the content of IT terms and symbols, quality requirements, format requirements, etc., the respective DIN standards in force at the time the contract is concluded must be adhered to.

2. Use

2.1 Copyright The products including their software components, program and data concepts are protected by copyright. The customer unrestrictedly acknowledges all rights of the provider to the products and services (patents, trademark rights, copyrights, trade secrets, etc.).
2.2 The customer's rights of use The provider grants the customer a simple, non-exclusive and non-transferable right to use the products and services within the territory of the Federal Republic of Germany, limited in accordance with sections 2.3 to 2.7, for their own use only. All other copyright usage rights to the products and services remain with the provider. The customer is not entitled to transfer these above rights of use to third parties and/or pass them on in any other way.
2.3 Multiple use and network use The use of a product or service is limited to the network operated by the customer. Permission to use the network does not include the use of the network by third parties. Multiple downloads or other saving does not extend the customer's usage rights; his rights remain as if the products/services had only been accessed once.
2.4 Reproduction The customer may only reproduce a product if the respective reproduction is absolutely necessary for the contractual use of the product. The required copies include installation on the mass storage of the hardware used and loading a product into the respective main memory. The creation of a backup copy - which must be marked as such - by the customer is permitted; However, in principle only a single backup copy may be made and stored. If regular backups of the entire data base, including the computer programs used, are essential for reasons of data security or to ensure rapid reactivation of the computer system after a total failure, the customer may make backup copies in the absolutely necessary number. The relevant data carriers must be marked accordingly. The backup copies may only be used for purely archival purposes. Property rights notices must be maintained in full in the event of permitted reproduction.
2.5 Customer security measures The customer is obliged to take appropriate precautions to prevent unauthorized access by third parties to the products/services and any accompanying material. The data carriers/backup copies must be stored in a location secured against unauthorized access by third parties. The customer's employees must be expressly advised to comply with these contractual conditions and the copyright provisions.
2.6 Decompilation and modification of software products If the products are software, the back translation of the object program form into the source program form (decompilation/re-assembly) as well as other types of re-development of the various production stages of the product (reverse engineering) are not permitted, unless the provider has gone bankrupt and has made no provision for continued maintenance of the product or such actions are necessary for interoperability with independently created computer programs. The interface information required for the purpose of establishing the interoperability of a possibly independently created computer program can be requested from the provider against reimbursement of the cost contribution. In addition, program changes and other program edits to the products by the customer are not permitted.
2.7 No changes to property rights notices The customer is under no circumstances authorized to make changes to companies, trademarks, copyright notices and other notices about reservations of rights and usage authorizations contained in the products/services.
2.8 Presentations/Pitches If no order is placed after a presentation, all services, in particular the presentation documents and the drafts, works, ideas, etc. contained therein, remain the property of the provider. The customer is not entitled to use this material in any form, to edit it or to use it as a basis for producing its own material. If the order is not placed, the customer must immediately return all presentation documents in his possession to the agency. If no order is placed, the provider is free to use the ideas, works, designs, etc. presented for other projects and customers.

3. Remuneration, invoicing, payment

3.1 The remuneration to be paid to the provider by the customer results from the provider's current list of services.
3.2 Unless otherwise contractually agreed, the offer price will be invoiced in two parts: 50% before the order is placed, the remaining amount upon acceptance of the respective items or works. The remuneration is due for payment immediately upon receipt of the invoice by the customer. After two weeks have elapsed after receipt of the service and receipt of the invoice, the customer is automatically in default without the need for a reminder.
3.3 If the customer defaults on payment, the provider is entitled to demand interest on arrears of 8% pa above the applicable base interest rate from the customer, insofar as these are payment claims. Otherwise, the provider is entitled to demand default interest of 5% pa above the applicable base interest rate. If the provider is able to prove higher damages caused by the delay, the provider is entitled to claim this. The customer is entitled to prove that the provider suffered no damage or significantly less damage as a result of late payment.
3.4 The remuneration is - unless otherwise agreed in writing - plus statutory VAT.
3.5 If the customer changes and/or cancels orders, work, extensive planning and the like outside of ongoing support, he will reimburse the agency for all costs incurred and release it from all liabilities towards third parties.
3.6 Cash expenses and special costs incurred by the agency at the express request of the customer will be charged at cost price. These include, for example, extraordinary communication, shipping and reproduction costs.

4. Contractual penalty

In the event that the customer uses, passes on or otherwise makes the products/services accessible to third parties in violation of the conditions stated in Section 2, the customer is liable to pay the provider for each case of violation, excluding the continuation context liable to a contractual penalty of EURO 2,500.00. This does not exclude the assertion of further claims for damages.

5. Installation, instruction, completion and delay

5.1 Any necessary installations of a product are carried out via download or in the form of handing over another data medium.
5.2 If a separate agreement is made, the provider will instruct the customer and a certain number of his employees in the use of the program after installing a product. At the customer's request, the provider will repeat or intensify the instruction; The additional instruction time must be paid for separately.
5.3 Subsequent requests for changes by the customer will result in the cancellation of agreed dates for the provision of the product or service by the provider.
5.4 The customer is only entitled to withdraw if the reasonable deadline set for the provider after the due date for performance has expired without result. The deadline is usually reasonable if it is at least four weeks.
5.5 If the customer sets the provider a reasonable deadline for performance if the provider has already defaulted, he is entitled to withdraw from the contract after this grace period has expired without result, provided that the provider has culpably allowed the set deadline to expire. The deadline must be at least four weeks.
5.6 Claims for damages against the provider due to delay are governed by Section 7.

6. Warranty

6.1 Any warranty for the accuracy of data from databases that may be contained in the product/service is excluded.
6.2 If products turn out to be defective at the time of transfer of risk, the customer can demand subsequent performance. In this case, the provider can choose to correct the defect or produce a new work.
6.3 If the provider is not willing or unable to remedy the defect/reproduce it, in particular if this is delayed beyond a reasonable period of time for reasons for which the provider is responsible, or if the remedy for the defect/remanufacture fails in any other way, the customer is responsible of his choice, within the framework of the statutory provisions, is entitled to withdraw from the contract or to reduce the remuneration and to demand compensation or reimbursement of wasted expenses. The customer's right to remedy the defect himself and to demand reimbursement of the necessary expenses in accordance with Sections 634 No. 2 and 637 of the German Civil Code (BGB) is expressly excluded.
6.4 The limitation period for claims for defects, including claims for damages, is one year, calculated from the start of the statutory limitation period. This does not apply in cases of intent or gross negligence. Sections 7.1 to 7.5 also apply to claims for damages.

7. Liability

7.1 The provider has unlimited liability for intent and gross negligence. For simple negligence, the provider is only liable and limited to the foreseeable damage typical of the contract if an obligation is breached, compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligation).
7.2 Liability for data loss is also limited to the typical restoration effort that would have occurred if backup copies had been made regularly and appropriately.
7.3 In cases of initial impossibility, the provider is only liable if it was aware of the impediment to performance or if the lack of knowledge is due to gross negligence.
7.4 The above limitations or exclusions of liability do not apply to claims under the Product Liability Act and to damages resulting from injury to life, body or health.
7.5 To the extent that the provider's liability is excluded or limited, this also applies to the personal liability of the provider's employees, employees, representatives and vicarious agents.
7.6 With the exception of claims arising from unlawful acts, the customer's claims for damages, for which liability is limited according to this section, expire one year from the start of the statutory limitation period.

8. Obligation to inspect and report complaints

8.1 The customer must inspect the product immediately after delivery to ensure that it is free of defects. Obvious defects must be reported to the provider in writing immediately, at the latest within 16 working days of delivery of the product. The notice of defects must contain a description of the defects that is as detailed as possible.
8.2 Defects that cannot be identified during the proper inspection described in Section 8.1 (hidden defects) must be reported in writing immediately, at the latest within eight working days of their discovery, in compliance with the complaint requirements set out in Section 8.1.
8.3 If the above obligation to inspect and/or give notice of defects is violated, the product is deemed to have been approved in view of the defect in question.

9. Retention of title, premature expiry of the customer's right of use

9.1 The provider reserves ownership of the product until all of the provider's claims arising from the business relationship with the customer have been paid in full. If payment is made by check or bill of exchange, full payment in the aforementioned sense is only made when it is redeemed. The provider undertakes to release the securities to which it is entitled at the customer's request to the extent that the realizable value of the securities exceeds the claims to be secured by more than 20%. The choice of securities to be released is incumbent upon the provider.
9.2 If the customer culpably acts in breach of contract, particularly in the event of late payment, the provider is entitled to withdraw from the contract and take back the subject matter of the contract and to claim damages due to delay.
9.3 If the provider asserts retention of title, the customer's right to use the product affected by this expires. All relevant program copies made by the customer must be deleted by the customer immediately.

10. Execution of the contract

The basis of the agency's work is the briefing, the written work order and other information from the customer. If the briefing or other information is given verbally, the corresponding contact report becomes a binding working document.

11. Subcontractors

The provider is permitted to delegate the creation of products and/or the provision of services as a whole or with regard to individual partial services to subcontractors.

12. Confidentiality and duty of care

The customer undertakes to keep secret for an indefinite period all information made accessible by the provider as part of the contractual relationship with the provider, which is designated as confidential or is recognizable under other circumstances as a business or trade secret of the provider, and - to the extent that not absolutely necessary to achieve the purpose of the contract - not to be recorded, passed on or used even after the contractual relationship has ended. This confidentiality obligation does not apply to information that has been made accessible to the general public due to publications by third parties without the customer's involvement; The customer bears the burden of proof for the existence of such an exception.

13. Final provisions

13.1 The law of the Federal Republic of Germany applies exclusively to the legal relationship between the provider and the customer, excluding the UN Convention on Contracts for the International Sale of Goods.
13.2 Munich is agreed as the place of jurisdiction for all disputes arising from the business relationship. However, the provider reserves the right to choose another legally permissible place of jurisdiction.
13.3 Place of performance is the provider's registered office in Munich.
13.4 Changes and additions are only effective in writing. The waiver of this regulation must also be in writing.
13.5 If individual provisions of these General Terms and Conditions are not legally effective or lose their legal validity due to a later circumstance, or if a gap is found in these General Terms and Conditions, this will not affect the legal validity of the remaining provisions. Instead of the invalid provision or to fill the gap, an appropriate regulation should apply that comes as close as possible to what the provider and the customer would have wanted if they had taken this point into account.

14. Duration of contract and notice periods

This contract comes into force when the corresponding declarations of intent are submitted in writing, ie when this document is signed. It is concluded for the contract term stated in this contract. If the contract was concluded for an indefinite period, it can be terminated with 3 months' notice to the end of the month. The right to termination without notice for good cause remains unaffected. Termination must be made in writing.

15. Conclusion of the contract

The contractual relationship for the services comes into being when a customer order is placed by the client and its acceptance by the service provider. The client is bound to place the customer order for two weeks.

16. Prohibition of disclosure

All information, including the briefing or other instructions, is intended exclusively for the agency. The latter is expressly prohibited from passing on the information mentioned to third parties without the customer's express consent, which must be obtained beforehand in writing.