General Terms and Conditions

General terms and conditions ofWemakefuture GmbH, following called WEMAKEFUTURE

Gottfried-Arnold-Str. 3 in 35398 Gießen Tax Number 20 248 13147

The Terms and Conditions apply for entrepreneurs in the sense of § 13 BGB – we can not provide services to private persons.

  1. Area of application

The following general terms and conditions apply to all legal transactions of the service company WEMAKEFUTURE – hereinafter referred to as the service provider – with its contractual partner – hereinafter referred to as the client.

Insofar as individual contractual provisions exist which deviate from or contradict the provisions of these GTC, the individual contractual provisions shall take precedence.

  1. Object of the contract

2.1 The contracting parties agree on the cooperation for the automation of API interfaces by means of iPaaS platforms and various development services (API, web and low-code), which are defined in the order before the start of the service. A contract of employment is not intended by the parties and is not established.

2.2 The service provider itself shall be responsible for social security contributions or tax matters and shall indemnify the client against any obligations.

2.3 The service provider is also free to work for other clients.

  1. Formation of the contract

3.1 The contractual relationship for the services shall come into existence through the placing of a service customer order (order) by the client (offer) and its acceptance by the service provider WEMAKEFUTURE. The client is bound to the placement of the customer order (offer) for a period of two weeks.

3.2 The subject of the contract or the exact task description is described in the written order.

3.3 Unless otherwise expressly agreed, offers are subject to change and are valid for a fortnight after the date of the offer. The customer shall be bound to an order placed for four weeks; if no acceptance is received from WEMAKEFUTURE, the order shall lapse after the four weeks. An order shall only be deemed to have been accepted if it has been confirmed in writing, we have sent an order confirmation by e-mail or we have commenced delivery within this period.

3.4 The conclusion of the contract is subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular in the event of the conclusion of a congruent covering transaction with our (software) supplier and service providers. We expressly do not assume any procurement risk if we have concluded a procurement contract or service contract for the owed service with our supplier. The customer will be informed immediately of the non-availability of the service. The consideration shall be refunded without delay.

3.5 Subsequent changes at the instigation of the customer will be charged to the customer.

3.6 Cost estimates and offers are non-binding. If we realise during the execution of the order that the estimated costs will increase by more than 20 %, we shall immediately stop the work and inform the customer thereof. At the same time, we will provide him with an estimate of the now anticipated necessary expenditure. The customer then has the right to decide whether the order is to be terminated with payment or continued. If the order is cancelled, the services and deliveries provided up to that point will be paid for. The client shall receive all work results produced up to that point.

  1. Contract length and cancellation

4.1 The contract begins and ends on the individually agreed date.

4.2 The contract may be terminated with notice. In this respect, a notice period of four weeks to the end of the month is agreed. The work performed by WEMAKEFUTURE until termination shall be paid by the Client.

4.3 Termination without notice for good cause is possible. An important reason is, for example, if the client is in default with a due payment and does not perform after the expiry of a reasonable grace period, the client suffers a financial collapse after the conclusion of the contract (insolvency, insolvency), unless an application for the opening of insolvency proceedings has already been filed.

  1. Scope of services, obligations of the contracting parties

5.1 The services to be provided by the service provider generally comprise the tasks listed in detail, in accordance with the order placed by the client.

5.2 The service provider shall periodically inform the client of the result of its activities. The contracting parties may agree in the contract on a schedule for the provision of services and a planned end date for the completion of services.

5.3 If it is actually not possible for the service provider to perform an assignment as owed under the contract, the service provider must inform the client of this without delay. If performance is not possible because third parties (API, software, changed framework conditions) do not permit this technically, there shall be no obligation to deliver. Consequently, if offer or invoice items are technically not realisable in the software provided by the client or by WEMAKEFUTURE, there shall be no obligation to perform. Efforts and project times of WEMAKEFUTURE shall be paid separately by the customer.

5.4 The parties shall endeavour to support the contractual partner in the performance of the respective obligation to the best of their knowledge and belief by providing information, information or experience in order to ensure a smooth and efficient workflow for both parties.

5.5 Either party may request changes to the agreed scope of services from the other party in writing. Upon receipt of a change request, the Recipient shall examine whether and on what terms the change is feasible and shall promptly notify the requesting party in writing of its approval or rejection and, if applicable, provide reasons for such approval or rejection. If a change request from the Principal requires extensive review, the review effort for this may be charged by the Service Provider with prior notice if the Principal nevertheless insists on review of the change request.

If necessary, the contractual adjustments to the agreed conditions and services required for a review and/or an amendment shall be set out in writing in an amendment agreement and shall come into effect in accordance with these General Terms and Conditions.

5.6 Transfer of rights of use

5.6.1 In the absence of other agreements, the customer shall receive a simple right of use for use on iPaaS or cloud environments for services provided within the scope of automation services (in particular software development, process automation and development as well as programming of APIs). All drafts, final artwork, source codes as well as created software are subject to copyright law, also as partial services of a service, and remain the created property of WEMAKEFUTURE.

5.6.2 Further rights, in particular to reproduce the created software beyond the extent necessary for the contractual use, are granted. There is also no right to modify the software, unless the modification is necessary to eliminate defects. This right of modification shall only apply if attempts of subsequent performance on the part of WEMAKEFUTURE have either been rejected by WEMAKEFUTURE or have failed.

5.6.3 The transfer of granted rights of use to third parties requires the written consent of WEMAKEFUTURE. WEMAKEFUTURE is entitled to information about the extent of the use.

5.6.4 The customer shall not be entitled to the surrender of raw data or source codes.

5.6.5 The right to use the services of WEMAKEFUTURE within the agreed scope shall be acquired by the customer upon full and unconditional payment of the agreed fee.

5.6.6 We shall be exclusively entitled to all rights going beyond the above granting of rights, be they copyrights, industrial property rights or other rights.

5.6.7 If the object of our performance is the delivery of third-party software, the customer shall be obliged to inform himself about and observe the manufacturer’s licence provisions and to comply with data protection agreements when processing data.

5.6.8 Process automation on iPaaS, should no other regulations apply on the part of the platform provider, WEMAKEFUTURE shall receive the intellectual property rights to the automated processes of the service. The Client requires the consent of the Service Provider for adaptation, sale and disclosure to third parties. Ownership of the processes may be acquired by the Client for a fee to be negotiated individually.

5.6.9 Wemakefuture GmbH reserves the right to sell process source code, drawings and process chains (Integromat; Scenarios, Zapier; Zaps, Power Automate; Flows, Wayscript “processes” and all other process chains) of the automation to third parties.

5.7 Acceptance

5.7.1 Upon completion and handover of the the Service, the Service shall be accepted. The customer shall accept the service within a period of one month after the date on which WEMAKEFUTURE has notified the completion of the service via e-mail.

5.7.2 The acceptance of the service requires a functional test on the part of the customer. During the functional test, the Customer shall immediately notify WEMAKEFUTURE of all occurring deviations of the performed services from the performance requirements. If the customer does not record any adverse deviations of the services detected by him during the acceptance test or not detected due to gross negligence, the services shall be deemed to have been provided in accordance with the order and the contract with regard to these unreported deviations. WEMAKEFUTURE shall not be responsible for rectification of third party defects. In the event that the Client culpably does not or not completely fulfil his obligation to participate in the test, the same shall apply with regard to the deviations recognisable during a dutiful participation. The Contractor shall point out this significance of its conduct to the Client with the notification. Insofar as the contractor fraudulently conceals deviations in quality, he may not invoke the provisions of this paragraph.

5.7.3 If the functional test is carried out successfully, acceptance shall be declared without delay. A functional test is successful if either all acceptance criteria have been fulfilled, a handover has been agreed with the Principal and Contractor and here the service has functioned in a documented manner, which were agreed between the Principal to carry out the acceptance, or the contractually agreed requirements have been fulfilled or there are only insignificant defects.

5.7.4 If the customer does not declare acceptance, although there is acceptance capability, then WEMAKEFUTURE may set a reasonable deadline for the submission of the acceptance declaration. Upon expiry of the deadline, the performance shall be deemed accepted. WEMAKEFUTURE will point out this legal consequence to the customer when setting the deadline. The same shall apply if the customer refuses to cooperate in the functional test and the functional test becomes impossible as a result.

5.7.5 Likewise, the performance shall be deemed accepted if the customer uses the performance of WEMAKEFUTURE productively for at least 14 days without explaining why he refuses acceptance and the customer was informed of this legal consequence in advance.

5.8 Miscellaneous

5.8.1 The parties agree that within the scope of the service as well as within the scope of the error reporting/identification, a ticket system shall be used as a matter of priority. For this purpose, processes with external interfaces may be monitored and deactivated/activated.

5.8.3 We may carry out work that has not been agreed in advance if the customer cannot be reached at short notice and the work is necessary to achieve the commissioned purpose and the total costs do not increase by more than 20% for orders up to € 500.00 and by more than 15% for orders over € 500.00 as a result.

5.8.4 If external services are used for the service (e.g. GoogleMaps, web hosting, etc.), the rights of use of the external service providers shall apply without restriction and shall be accepted by the client beforehand. WEMAKEFUTURE shall only act as a vicarious agent in this respect.

5.8.5 WEMAKEFUTURE is entitled to commission subcontractors with the fulfilment of the main services of the order incumbent upon it.

5.8.6 If a third party software, API or party does not have or provide the required functional scope, endpoints or services, WEMAKEFUTURE is not obliged to implement the functions and no delivery obligation arises.

  1. Payment terms and conditions

6.1 The prices agreed upon conclusion of the contract shall apply. These result from the order or order confirmation and, unless specified in the confirmation, are set out in our respective current price list for services.

6.2 WEMAKEFUTURE is entitled to invoice partial services. Furthermore, an advance payment in the amount of 50% of the order sum shall be due when the order is placed. Only after payment of the advance WEMAKEFUTURE will start with the service. After completion, a further 50% of the order sum shall be due and charged, unless a different invoicing has been agreed in the contract or the order volume has changed in the course of the service.

6.2.1 Quoted estimated prices for services on a time basis, in particular in cost estimates, are non-binding. The quantity estimates on which an estimate is based are based on an assessment of the scope of services carried out to the best of our knowledge.

6.3 VAT shall be invoiced at the VAT rate applicable at the time of performance. Irrespective of the subject matter of the contract, claims of WEMAKEFUTURE can be settled by bank transfer to the business account or Stripe of WEMAKEFUTURE stating the respective order or invoice number. Other methods of payment, in particular cash, bills of exchange, goods in kind, credit balances or assignment of claims to third parties will not be accepted.

6.4 Invoices are payable on receipt without deduction. If the invoice amount is not received within 30 days of the invoice date, the service provider is entitled to claim default interest. Default interest shall accrue at the statutory rate. The right to claim further damages remains unaffected.

6.5 No cash discount shall be granted and shall be subsequently charged in any case.

6.6 The respective hourly rates are to be understood at the place of business in Gießen. Travel expenses shall be reimbursed by the Customer if employees of WEMAKEFUTURE carry out business trips which are requested or approved by the Customer in each case. Travel costs include in particular travel costs, we charge 50 Euro cents per kilometre, accommodation costs, parking costs and per diems for meals.

  1. Liability

7.1 The service provider is liable in cases of intent or gross negligence in accordance with the statutory provisions. Liability for guarantees shall be strict regardless of fault. The service provider shall be liable for slight negligence exclusively in accordance with the provisions of the Product Liability Act, for injury to life, limb or health or for breach of material contractual obligations. However, the claim for damages for the slightly negligent breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless liability is assumed for injury to life, limb or health. The service provider shall be liable to the same extent for the fault of vicarious agents and representatives.

7.2 The provision of the preceding paragraph (7.1) extends to damages in addition to performance, damages in lieu of performance and claims for compensation for futile expenses, regardless of the legal basis, including liability for defects, delay or impossibility.

7.3 The service provider is not liable for delay, non-provision, missing functions of third parties or non-delivery of the service due to delay, failure, force majeure or non-delivery of the service by third party service providers, in particular the software providers and applications that are absolutely necessary for the provision of the service.

7.4 The Fair Development Policy applies to the service of WEMAKEFUTURE.

  1. Naming of the client and the service

8.1 The client agrees to the naming as a client of WEMAKEFUTURE after successful commissioning. Furthermore, the client allows WEMAKEFUTURE to name the client as a reference client after successful completion of the service. WEMAKEFUTURE is also entitled to use the logo of the client on the website of WEMAKEFUTURE and in marketing documents. The client also agrees to cooperate in the preparation of a case study and to act as a reference contact in individual cases after consultation.

All marketing documents relating to the Client or the service shall be submitted to the Client for approval. The Client may revoke its consent to the referencing at any time. ([email protected])

  1. General

9.1 Should one or more of the above terms and conditions be invalid or contain a loophole, the remaining terms and conditions shall remain unaffected.

9.2 Agreements deviating from or additional to the above provisions shall only be effective in the form of a written supplementary agreement to the contract concluded by the parties in which reference is made to the amended terms and conditions. Any waiver of this written form requirement must also be in writing.

9.3 The sole place of jurisdiction for all disputes arising from the contractual relationship and its validity shall be, if the customer is a registered trader, a legal entity under public law or a special fund under public law or has its registered office abroad, at our discretion our registered office in Gießen.

9.4 The business relationship between the parties shall be governed exclusively by German law.

If the client does not have a general place of jurisdiction in Germany or in another EU member state, the exclusive place of jurisdiction for all disputes arising from this contract is our registered office (35398 Gießen).

Gießen 01.01.2021 Wemakefuture GmbH