§ 6 Usage Rights

1. Instructions, documentation, and other written materials created by us as part of the contract may be provided to the customer upon request in copy form for contractual use, provided the required compensation has been paid in full. The customer is required to respect any existing legal protections.
   
   

2. Unless otherwise agreed (e.g., in the case of software transfer, see § 15 et seq. of these T&Cs) and subject to the provisions of Section 3, we grant the customer a simple, perpetual right to use the work results for their internal purposes upon full payment.
   
   

3. For websites we create, the customer is granted the exclusive, unlimited right to use the contractual website in terms of time and location. Until full payment of the agreed compensation, the customer receives only a simple, non-transferable right of use. Notices of our authorship must be included in appropriate locations on the website and may not be removed without our consent. Subject to the provisions of sentence 7, the customer may not develop or modify the website or its software without our prior consent. The granted usage rights apply only to the website’s use in its entirety or its components on the internet. The customer is not entitled to use individual design elements or the complete website in other forms, particularly in printed form. For components or entire websites created using open-source software, the customer is entitled to modify or edit them, provided the respective licensing conditions are met.
   
   

4. The customer may not duplicate any documents provided by us during the contract period for purposes other than their own internal use. These documents may not be shared with third parties outside the customer's organization without our prior written consent. Upon termination of a contract, any materials and documents provided for use during the contract term must be returned to us immediately. Any copies must be deleted.

§ 7 Confidentiality / Data Protection / Reference Naming / Employee Recruitment

1. Both parties agree to keep all business and trade secrets or information designated as confidential, disclosed or made known during the execution of the contract, strictly confidential, even after the contract ends, and to obligate their employees accordingly. Information and documents must not be disclosed to third parties who are not involved in the contract execution. Both parties agree to protect the contractual items in the same manner as they would their own confidential materials. Either party may request documentation of the organizational measures implemented by the other to ensure this protection.
   
   

2. The confidentiality obligation does not apply to information and documents that were publicly known or accessible at the time of disclosure, were already known to the receiving party, or were lawfully made accessible by third parties.
   
   

3. The customer is hereby informed that we collect, store, process, and, if necessary, transmit their data to third parties as required for contract execution, in compliance with data protection laws.
   
   

4. We expressly point out that, according to the current state of technology, data protection and data security cannot be guaranteed for data transmissions over open networks like the internet. The customer acknowledges that web hosts may, from a technical perspective, access the content stored on their web servers and potentially other stored data. Other internet users may also be technically capable of breaching network security and monitoring communication. The customer is solely responsible for ensuring the security and protection of data transmitted over the internet and stored on web servers. The customer is also responsible for complying with and enforcing applicable data protection regulations for their end users.

5. For the processing of personal data on behalf of a customer ("data processing agreement"), a written agreement is required under § 11 of the German Federal Data Protection Act. We offer a standard agreement template for this purpose. For further information, please contact us at info@ORCAYA.de or reach out to your designated contact person.
   
   

6. Unless otherwise agreed, both parties are allowed to name the other as a reference partner and use their logo for this purpose.
   
   

7. For any willful breach of the obligations outlined in Section 1, the violating party agrees to pay a contractual penalty of €5,001 to the other party. The provisions in § 19(2) apply accordingly.
   
   

8. Each party agrees not to solicit, directly or indirectly, any employees of the other party during the term of the contract and for two years after its termination. In the event of a breach, the violating party agrees to pay a contractual penalty equivalent to one gross annual salary (including bonuses and commissions) of the employee in question, calculated based on the employee’s gross salary during the 12 months prior to the violation.

§ 8 Fees and Payment Terms

1. The amount of compensation owed by the customer and the payment terms are specified in the confirmed offer or the service description. Payments, including VAT, are due upon receipt of the invoice and must be made without deductions within 14 days. Unless otherwise specified in the confirmed offer, recurring fees, such as those for web hosting, managed servers, email services, or support contracts, must be paid monthly in advance. Payments are considered on time when credited to the receiving account, not when the payment is initiated.
   
   

2. Unless otherwise agreed, we are entitled to reimbursement for expenses, including reasonable travel and accommodation costs. External costs incurred through third-party services—such as graphic design, text creation, printing, photography, materials, audiovisual media, translations, tools, marketing measures, and other services—must be reimbursed upon proof.
   
   

3. For long-term contracts billed based on actual work performed, our current price list applies. For contracts concluded in the last quarter of a year, the agreed prices also apply to the following year.
   
   

4. If the customer falls behind on payments, we are entitled to charge default interest at a rate of 8 percentage points above the base interest rate. We reserve the right to claim additional damages caused by the delay. The customer may demonstrate that no damage or a significantly lower amount of damage was incurred.
   
   

5. The customer must raise objections to the amount of any usage-based billing (e.g., connection data, data volume) within three months of receiving the invoice. After this period, the billing is deemed accepted. We will clearly inform the customer of this consequence on the invoice. Statutory claims of the customer remain unaffected.
   
   

6. We reserve the right to adjust fees for recurring contracts and our price list no sooner than 12 months after the contract begins. Customers will be notified in writing of any changes at least two months in advance. If the fee increase exceeds 10%, the customer has the right to terminate the affected contract within one month of receiving the notification, effective at the end of the current billing period.
   
   

7. The customer may only offset claims if their counterclaims are legally established or recognized by us.

8. The customer may only exercise a right of retention if their counterclaim arises from the same contractual relationship. If defects are present that do not significantly impair the use of the software, the customer may withhold payment only to the extent of the cost of remedying the defect.

§ 9 Retention of Title

1. Ownership of permanently delivered items such as data carriers and user manuals remains with us until the purchase price is fully paid.
   
   

2. The customer may sell goods subject to retention of title only in the ordinary course of business and under their standard business terms, provided they are not in default of payment to us. If the customer defaults on payment, we may, after a reasonable grace period, demand the assignment of claims arising from the resale. The customer may not otherwise dispose of goods under retention of title before fulfilling the payment obligations.
   
   

3. In the event of seizure or other third-party interference with goods under retention of title, the customer must notify us immediately in writing.

§ 10 Exercising the Right to Demand Surrender of Retained Goods

1. We are entitled to withdraw from the contract after setting a reasonable deadline (unless setting a deadline is dispensable as per subsection 2) and demand the surrender of goods delivered under retention of title if:
   
   a) The customer is 40 days in arrears with payment or, in the case of agreed installment payments, is in default with at least two installments, unless the payment delay is not attributable to the customer; or
   
   b) The customer has culpably violated the obligations under § 10 subsections 2 and 3.
   
   

2. Setting a deadline is dispensable if the customer seriously and definitively refuses performance or is evidently incapable of rendering such performance within the set period.
   
   

3. The demand for the surrender of goods may still be made even if the secured claim is already time-barred.
   
   

4. Upon assertion of the retention of title by us, the right to continue using the goods lapses.

§ 11 Material and Legal Defects

1. Customer Modifications
   If the customer or third parties commissioned by them make modifications or alterations to the contractual services delivered by us—without our written consent—we shall only provide defect rectification if the customer can demonstrate that the modification is unrelated to the reported defect and does not impede the analysis and rectification of the defect.
   
   

2. Exclusion of Subsequent Performance
   The customer's right to subsequent performance is excluded if the defect is not reproducible or cannot be demonstrated using written or machine-recorded documentation.
   
   

3. Defect Categories for Response Times
   Reported defects, as outlined in § 4 subsection 8, are categorized by us for resolution as follows:
   
   a) Category 1: Severe Defect
   The entire contractual object or a component cannot be used. The defect cannot be circumvented through organizational means.
   
   b) Category 2: Moderate Defect
   The functionality of a component or the entire contractual object is impaired but remains usable. The defect can be circumvented with organizational or economically reasonable measures.
   
   c) Category 3: Minor Defect
   A minor defect has no significant impact on the functionality or usability. The usage of a component or the entire software is not or only minimally restricted.
   
   

4. Response Times
   Response times are calculated from the receipt of the defect report during business hours. Response times are as follows:
   
   a) Category 1 Defects
   We will begin analysis and rectification within 4 hours. Temporary measures may be implemented to restore system functionality, followed by a permanent fix.
   
   b) Category 2 Defects
   We will begin analysis and rectification within 5 days of receiving the report.
   
   c) Category 3 Defects
   We will begin analysis and rectification within 2 months of receiving the report.
   
   

5. Right to Subsequent Performance
   If a material defect exists, the customer's remedy is initially limited to subsequent performance. We may choose to fulfill this obligation through repair or replacement delivery.
   
   

6. Type of Subsequent Performance
   For software provision, the rules under § 22 subsection 2 apply.
   
   

7. Reduction or Withdrawal / Compensation
   If the defect is not resolved after two attempts at subsequent performance, or if we are unwilling or unable to provide remedy, the customer may withdraw from the relevant portion of the contract (or terminate the affected service in cases of maintenance, software rental, web hosting, or server housing agreements) or request a reduction of the agreed compensation. The customer may also claim damages or reimbursement of futile expenses per § 13. The customer’s right to terminate under § 543 subsection 2 sentence 1 no. 1 BGB for failure to provide the agreed use only arises after sufficient opportunity for remedy has been given and has failed. The withdrawal or termination applies only to the specific service in question and not to other contracts between us and the customer. In the case of minor defects, the customer has no right to withdraw or terminate. If the agreement involves work, the customer may also remedy the defect themselves and claim reimbursement of necessary expenses.
   
   

8. Fraud / Warranty
   Statutory provisions for material and legal defects remain unaffected in cases of fraud or if a warranty is assumed by us.
   
   

9. Measures for Alleged Legal Defects
   If a third party claims infringement of their intellectual property rights through the contractual service, the customer must promptly inform us and, as far as possible, allow us to handle the defense against such claims. The customer shall provide reasonable support, including supplying all relevant information on the use or modification of the software and any necessary documentation. We may choose to remedy the legal defect by:
   
   a) Obtaining a license from the rights holder for the customer's use under the contract;
   
   b) Modifying the service to eliminate the infringement without significantly affecting its functionality;
   
   c) Replacing the service with one that fulfills the contract without infringing on third-party rights; or
   
   d) Delivering a new version of the software that does not infringe third-party rights.
   Otherwise, the provisions above apply to legal defects.
   
   

10. Data Backup Before Remedy
    The customer must back up data as required under § 5 (Data Backup) before any defect rectification.
    
    

11. Liability for Compensation
    Any claims for damages or reimbursement of expenses are subject to the provisions of § 12 (Liability).

§ 13 Limitation Periods

1. Customer claims based on material defects arising from a purchase, work, or software maintenance contract are subject to a limitation period of one year. This period also applies to the delivery of new software or hardware versions. If the limitation period is tied to a real property right of a third party, which allows the contractual item to be reclaimed, the statutory limitation periods shall apply.
   
   

2. For other customer claims arising from the contract or an obligation (§ 311 subsection 2 BGB), a limitation period of one year applies, starting from the statutory commencement of the limitation period. These claims are barred at the latest upon the expiration of the statutory maximum limitation periods (§ 199 subsections 3 and 4 BGB).
   
   

3. For personal injuries, as well as for claims arising from intent, fraud, or gross negligence, the statutory limitation periods remain applicable.

§ 14 Rental Term / Termination Notice Period / Return Obligations Upon Contract Termination

1. The rental term is specified in our offer or service description.
   
   

2. Unless otherwise agreed, an open-ended rental agreement may be terminated by either party with two weeks' notice, effective at the end of the month.
   
   

3. The right of either party to terminate the agreement without notice for good cause remains unaffected. Good cause is deemed to exist, in particular, if:

   • The other party persistently and repeatedly violates contractual obligations despite prior warning;
     
     
   • The customer is more than one month in arrears with payment; or
     
     
   • Insolvency proceedings are initiated against the other party's assets or are rejected due to insufficient assets.
     
     

4. Upon termination of the rental agreement, the customer, as the lessee, is obligated to return all original data carriers, along with all documentation, materials, and other provided items, free of charge. Proper return also includes the complete and permanent deletion of any copies that may exist. We may waive the return requirement and instead mandate the deletion of the contractual software and the destruction of the documentation. If we exercise this option, the customer must expressly confirm in writing that the deletion and destruction have been carried out.

§ 17 Program Modifications / Interoperability / Decompilation

1. Decompilation
   The reverse engineering of the provided program code is permissible under the conditions outlined in § 69e of the German Copyright Act.
   
   

2. Execution of Exceptions by Third Parties
   If the customer cannot or does not wish to perform the exceptions permitted under the Copyright Act themselves or through their employees, they must first provide us with the opportunity to carry out the requested work to achieve interoperability within a reasonable timeframe and at a reasonable cost. If a third-party company is commissioned, the provisions of § 8 subsection 1 sentence 1 (final clause) shall apply accordingly.
   
   

3. Removal of Copy Protection
   The removal of copy protection or similar security routines is permissible if these mechanisms impair or prevent the proper use of the program.
   
   

4. Retention of Identifying Marks
   Copyright notices, serial numbers, and other identifiers used for program identification may not be removed or altered.

§ 18 Transfer of Software

1. Resale in the Case of Permanent Software Provision
   The customer is entitled, subject to the provisions of subsection 3, to permanently sell or gift the contractual software received on data carriers, including accompanying materials, to third parties, provided that the acquiring third party agrees to the continued application of these software usage terms. In the event of transfer, the customer must hand over all program copies, including any backup copies, to the new user or destroy any copies not handed over. As a result of the transfer, the customer’s right to use the program expires. The customer must inform us in writing of the name and complete address of the buyer.
   
   

2. Temporary Transfer Without Commercial Purposes
   Subsection 1 applies, subject to the provisions of subsection 4, to the temporary transfer of the contractual software, provided it is not done via rental, leasing, or for commercial purposes.
   
   

3. Exceptions to the Right of Resale Under Subsection 1
   Permanent transfer of the contractual software to a third party whose place of business is not located within the European Union or a contracting state of the European Economic Area Agreement is not permitted for the customer. The customer is also not allowed to permanently transfer a subset of the software licenses from a software package received on data carriers to third parties. If the software provided for permanent use is not received on a data carrier, the customer is likewise not permitted to resell it.
   
   

4. Exceptions
   Renting (including through ASP) or leasing for commercial purposes is only permitted if we have given prior written consent. Otherwise, the customer is permitted to provide services related to the use of the software for third parties belonging to the same corporate group (within the meaning of §§ 18 AktG, 290, 291 HGB).

§ 19 Contractual Penalty

1. For each culpable violation of the rights and obligations set forth in §§ 16, 17, 18, and 19, the customer agrees to pay a contractual penalty as follows:

   • €15,000 for intentional violations,
     
     
   • €10,000 for grossly negligent actions, and
     
     
   • €5,001 for slightly negligent actions.
     
     

2. We reserve the right to claim additional damages. Any contractual penalty paid will be credited against any potential claim for damages. The provision in § 8 subsection 4 sentence 2 (Compensation and Payment Terms) applies accordingly.

Special Provisions for Software Maintenance

§ 20 Subject Matter of the Contract

1. The subject matter of the contract is the provision of maintenance services by us in exchange for the maintenance fee specified in the confirmed offer for the software designated in the delivery note.
   
   

2. The obligation to provide the agreed maintenance services applies to the current version of the contractual software. If the customer has an older version of the contractual software installed, we may refuse to provide services under these terms or, at our discretion, provide maintenance services in exchange for compensation for the additional effort required.

§ 21 Scope of Maintenance Services

1. Services Covered by the Maintenance Fee
   Unless otherwise agreed in the confirmed offer, we provide the following services for the contractual software, which are covered by the flat-rate maintenance fee:
   
   a) Fault analysis and defect rectification for the contractual software provided by us (§ 22);
   
   b) Delivery of updates and upgrades (§ 23);
   
   c) Hotline support as part of the customer's first-level support (§ 4).
   
   

2. Additional Services
   Beyond the services listed in § 21 subsection 1, we offer the following additional services, which require
   
   a separate order and are subject to additional compensation based on our current price list:
   
   a) Installation and implementation of the software on the customer's hardware environment;
   
   b) Monitoring measures;
   
   c) Training and instruction for employees;
   
   d) Software modifications (see definition in § 23 subsection 5);
   
   e) Configuration/adjustment: Assistance in configuring the provided software to meet the customer's specific needs;
   
   f) Extended consulting: Addressing customer inquiries, such as perceived malfunctions or defects not attributable to the contractual software but instead resulting from user errors or external factors, including force majeure;
   
   g) On-site maintenance: Maintenance services performed at the customer’s premises unless an on-site fault analysis and defect rectification are strictly necessary;
   
   h) Delivery of new versions/products and/or new developments based on alternative technologies (see § 24 subsection 3);
   
   i) Programming of additional software components (software development).
   
   

3. Requirements for Maintenance Services
   Maintenance services, including the delivery of updates, upgrades, fault analysis, and defect rectification, are generally performed via remote data transmission (preferably remote access, alternatively via online methods such as FTP/Web). The customer must provide and maintain, at their own expense, the technical prerequisites necessary for remote services. If fault analysis reveals defects that can only be rectified on-site, we will perform maintenance at the customer's premises. Other on-site services requested by the customer will be billed based on actual effort (including potential travel and accommodation expenses) in accordance with our current price list.
   
   

4. Exclusions
   We do not provide maintenance for software that has been modified through programming by the customer or third parties or for other reasons without our prior written consent.

§ 22 Fault Analysis and Defect Rectification

1. Scope of Services

   a) Defect Rectification During the Warranty Period
   During the one-year defect rectification period, we will remedy defects in the contractual software within the timeframes specified below, in accordance with the following provisions. This applies without the customer having to comply with the statutory obligation to inspect and report defects and without needing to prove that the reported defect was present at the time of delivery of the contractual software.

   b) Defect Rectification After the Warranty Period
   After the expiration of the defect rectification period for the software provision, we will remedy defects reported by the customer in accordance with the following provisions and within the specified timeframes.
   
   

2. Methods of Defect Rectification

   We will rectify a defect reported to us in accordance with the agreement, using one of the following methods at our discretion:

   a) Delivery of an Update or Upgrade
   We will provide the customer with a new update or upgrade that the customer installs on their system.

   b) Action Instructions
   We will provide the customer with instructions to work around the issue or rectify the defect (workaround). The customer shall implement these instructions through competent personnel unless such implementation is unreasonable.

   c) Remote Data Transmission
   We will rectify the defect via remote data transmission.

   d) On-Site Rectification
   On-site defect rectification will only be performed if none of the above measures is likely to succeed.

§ 23 Delivery of New Updates and Upgrades

1. Scope of Services
   We provide the customer with updates and upgrades of the contractual software after their release.
   
   

2. Content of Updates and Upgrades
   Updates of the software include defect rectifications. Upgrades represent new software versions of the contractual software that may include defect rectifications, improvements, and/or extensions of existing and new functionalities.
   
   

3. Exclusions
   The flat-rate software maintenance fee does not cover the redevelopment of the contractual software with similar or identical functions on a different technological basis.
   
   

4. Delivery
   Delivery of the object code is carried out via online data retrieval. Upon the customer's request, the update/upgrade may also be delivered on a CD-ROM/DVD to the service location specified in the delivery note. The source code is not part of the contract and is therefore not delivered.
   
   

5. Adjustment of the Software Environment
   The customer shall, at their own expense, ensure that any required adjustments to the hardware and software environment (e.g., new versions of the operating system or third-party software necessary for the use of the contractual software) are installed and operational in a timely manner for the new versions of the contractual software.
   
   

6. Granting of Rights
   The customer is granted usage rights for the new version of the contractual software to the same extent as the usage rights granted for the original contractual software under the software provision agreement and any usage rights extensions.

§ 24 Term / Termination

1. The software maintenance agreement is concluded in accordance with the provision in § 2 subsection 1 and initially applies for a term of one year. Thereafter, the software maintenance agreement is automatically extended by one additional year unless it is terminated three (3) months prior to the end of the contract term. Other grounds for termination remain unaffected by this provision.
   
   

2. Both parties retain the right to terminate the agreement without notice for good cause. The provision in § 14 subsection 3 applies accordingly.

§ 25 Subject Matter of Other IT-Related Services

1. Based on these General Terms and Conditions, we provide services that include, but are not limited to, the installation of proprietary and third-party software, programming of additional software components (software development), data migration, conversion, training in the use of software and hardware, conducting training sessions, consulting, project management, and customization, such as adapting or configuring/setting (parameterization) software.
   
   

2. Definition of Terms

   • Installation within the meaning of these General Terms and Conditions refers to loading, initializing, and/or setting parameters of the software acquired under a separate provision agreement, as well as the corresponding networking of the software.
     
     
   • Customization refers to changes made directly to the source code.
     
     
   • Configuration/Setting (Parameterization) refers to the preparation of the software without altering the source code.

Special Provisions for Third Parties Commissioned by Us (Commercial or Freelance Service Providers)