AGB

Status 06.12.2022 V1.01

The following provisions apply to the domain and the owner:

Ailio GmbH

VAT ID No.: DE299348278
Local Court Bielefeld HRB 41796

Buddestraße 9
33602 Bielefeld

Representation by: Aleksander Fegel

CONTACT:

Phone: 0521 96301788
E-mail: [email protected]

General Terms and Conditions (GTC) of Ailio GmbH Version 06.12.2022 V1.01

1. scope 

These Terms and Conditions apply exclusively between Ailio GmbH (Local Court Bielefeld: HRB 41796, VAT ID: DE299348278), represented by its Managing Director Aleksander Fegel, Buddestr 9, 33602 Bielefeld (hereinafter “Ailio”) and its contractual partners (hereinafter “Customer”).

They shall also apply to all future transactions with the customer which have the same subject matter of the contract, in particular to follow-up or supplementary orders, even if no reference is made to them in the individual case. Deviating terms and conditions of the customer are not valid, unless Ailio has expressly agreed to them. If other terms and conditions are desired, they require a written agreement between the parties or the express consent of Ailio to be effective.

Changes to these terms and conditions will be communicated in writing, by fax or by e-mail. The amendments shall be deemed to have been accepted if no objection is raised within four weeks of receipt of the notification. The customer shall be informed separately of the right to object and the legal consequences of silence.

2. offer, subject of performance, amendment of the contract 

The offers of Ailio are free to stay.

They are valid for six weeks from the date of issue (date).

The written details of the offer or the order confirmation (also by e-mail) shall be exclusively decisive for the content, scope and timing of the services.

Promises, assurances and guarantees by Ailio or agreements in connection with the conclusion of the contract that deviate from these GTCs will only be binding for entrepreneurial customers by written confirmation, also by fax or e-mail by Ailio.

Cost estimates are subject to a fee and are provided without warranty, unless a written agreement on gratuitousness has been made in individual cases.

Cost estimates are always estimates. Ailio strives to communicate early and transparently with the customer in the event of unexpected expenses and obstacles. Deviations up to 20% from the offer do not require further consultation.

3. time of acceptance, time of performance (deadlines/dates) 

A contractual relationship shall only come into existence upon acceptance by the customer, whereby acceptance may be effected by receipt of the acceptance letter/fax, the acceptance e-mail or by personal acceptance.

The performance times stated by Ailio are deemed to be approximately agreed. The start of the contract period requires clarification of all technical issues.

A time of performance specified by Ailio begins with the date of issue of the corresponding confirmation, but not from the conditions to be created by the customer necessary for the performance of the service (customer’s obligation to cooperate).

Performance times and deadlines for system deliveries (including partial deliveries, if agreed) shall be contractually stipulated and bindingly complied with. Delays for which Ailio is not responsible will postpone the dates/performance times affected by the delay by the time of the delay. Other claims of the parties shall remain unaffected.

This shall also apply in the event of default on the part of the customer in accordance with the period of default.

If Ailio incurs idle time and loss of revenue due to delays on the customer side, Ailio reserves the right to charge for this time. As far as Ailio is able to do so, it will try to use the invoiced time by delays and idle time as much as possible in the added value of the customer.

4 Acceptance, performance, obligations to give notice of defects 

After completion of the services related to a section and making them available, an immediate check – if agreed – in connection with a test by the customer shall be carried out to determine whether the services have essentially been provided in accordance with the contract.

If the offer is based on an hourly rate, there is always a service contract relationship. At the end of the month, Ailio delivers the hours worked in a project report for approval by the customer. Ailio may expressly invoice each month for hours worked to date, even if the overall result of the project has not yet been completed. Unless otherwise agreed, the customer undertakes to inspect and accept the submitted proof of performance within 10 working days or otherwise, in the event of complaints, to submit them immediately. After the end of the 10th working day, the service shall automatically be deemed to have been accepted, provided that no complaint has been made.

If the services were provided outside of a service contract on an hourly basis essentially in accordance with the contract, the customer must immediately release the services and declare them to Ailio in an acceptance report (also possible by e-mail), in which any minor defects are to be listed in a separate defect list and corrected by Ailio.

If release is not effected by the agreed date for reasons for which the customer is responsible, the object of performance shall be deemed to have been released free of defects. If no objections are raised within the time limit, the release shall be deemed tacitly granted. Ailio will separately notify the customer of this significance of his behavior with the notification of completion.

If the customer does not consider the services provided to be essentially in accordance with the contract, he must submit his complaints to Ailio within two weeks of making the services available.

5. retention of title (purchase) 

If the subject of performance also includes the delivery of materials and equipment, these remain the property of Ailio until the customer has paid the purchase price in full.

In the event of default, Ailio is entitled to demand the return of the goods subject to retention of title if no payments are made even after a reasonable grace period. The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.

6. cooperation obligations of the customer 

The customer is obligated to take all necessary steps at its own expense to ensure the implementation of the contract, in particular to appoint a competent contact person authorized to represent the customer and make decisions, who can provide all information required for the implementation and make or arrange for decisions.

The customer supports Ailio in the execution of the contract. The acts of cooperation shall include, in particular, the timely provision of information, competent and decision-making employees, means of communication and connections as well as hardware and software and the making available of premises, insofar as this is necessary for the performance of the contract.

The customer will instruct Ailio in detail regarding circumstances to be observed when Ailio works on the customer’s premises and technical equipment.

The customer shall perform all acts of cooperation at his own expense.

Furthermore, the customer shall take reasonable precautions to maintain business operations in the event that the services to be provided by Ailio and which are important for the customer’s business operations are not available at short notice.

7. copyrights/rights of use (license) 

Ailio retains the rights to the products developed for the customer. Software products and programs as well as their designs the property right and copyright. Accordingly, this also applies to design activities (design).

Ailio retains intellectual property rights to software products and programs developed for the customer, as well as to designed works, plans, sketches, cost estimates, source codes, scripts, compiled software and other documents.

Upon payment of the remuneration, Ailio grants the customer a simple right of use (license) for an unlimited period of time.

Any regulations deviating from this as well as the use, in particular the passing on to third parties, the duplication, publication and making available including the copying (also in extracts) require the written consent of Ailio.

8. contents of internet presences 

Ailio is not obligated to check the contents of Internet presences for legal violations and is not entitled to block Internet presences after recognizing legal violations or inadmissible behavior.

The customer allows Ailio to be named as the author on the web presences created by it for the customer and to refer to the customer’s support in its own advertising.

9. infringements of property rights, rights of third parties on the part of the customer 

The customer himself is responsible for the observance of third party rights, as far as he provides necessary means for the production or the service; in particular for the observance of trademarks, property rights, rights of use, patent rights and copyrights, for the observance of personal rights.

Ailio does not provide verification or legal advice.

In the event of an infringement of third party property rights, Ailio is entitled to cease production of the delivery item until the third party rights have been clarified at the risk and expense of the customer. In this case, Ailio may demand reimbursement of the costs for necessary and appropriate expenses.

In the event of an infringement of property rights by Ailio, the customer shall be indemnified by Ailio at its own expense against all claims of third parties for the domestic territory. Ailio may, without prejudice to any claims for damages by the customer – at its own discretion and – unless otherwise agreed – at its own expense with respect to the affected performance, after prior consultation with the customer, make changes that ensure that an infringement of property rights no longer exists and acquire rights of use for the customer after prior consultation at the customer’s expense.

The customer shall inform Ailio immediately of any claims asserted by third parties. If the information about asserted claims is not provided immediately, the right to indemnification shall lapse.

10. prices 

All prices are in principle not to be understood as all-inclusive prices and are in principle to be understood as net prices.

Ailio is entitled and, at the customer’s request, obliged to adjust contractually agreed charges if changes of at least 3% occur with regard to the

– statutory wage costs,

– Company agreements or

– Other cost factors necessary for the provision of services

have entered.

The adjustment of the remuneration shall be made to the extent that the actual production costs at the time of the conclusion of the contract change compared to those at the time of the actual performance of the service.

 11. compensation 

Ailio’s services ordered by the customer, if they are not covered by the original order, shall be remunerated appropriately.

If a lump-sum price has been agreed, it shall be a unilaterally not demanded total remuneration which is owed for the agreed service, unless a separate possibly lump-sum remuneration has been agreed for individual services. Travel time, travel, ancillary and material costs shall be reimbursed by the customer – unless a lump-sum payment is made.

Unless otherwise agreed, the daily rate for 7 hours is € 1200.

When Ailio provides a quote with daily rates, one daily rate always corresponds to 7 hours of work.

12. Payment and terms of payment 

Payment shall be due upon completion or delivery, unless otherwise agreed in a payment schedule.

Any remuneration due shall be paid within 10 days of receipt of an auditable invoice, unless otherwise agreed.

In the case of continuing obligations, the fee is payable monthly in advance and is due within 10 days from the date of conclusion of the contract.

13. delay 

If the customer is in default of acceptance in accordance with the contract and if, despite setting a reasonable deadline, it has failed to remedy the circumstances attributable to it which delay or prevent the performance of the service, Ailio may otherwise dispose of the equipment, materials and other capacities, in particular personnel capacities, specified for the performance of the service, provided that these can be procured again within a reasonable period of time or are available again.

The existence of the contract remains unaffected.

During the customer’s default in acceptance, Ailio is entitled to store materials and equipment, provided that these are part of the scope of services, and to charge the customer a measured and appropriate storage fee for this. In the event of default in payment, Ailio is also entitled to discontinue the provision of services and to demand immediate payment of claims for services already provided.

14 Warranty, material defects/legal defects 

Either party shall be entitled to rescind the contract in the event of a delay in delivery or performance for which it is responsible, unless the delivery or performance is provided within a reasonable grace period together with a declaration of non-acceptance of the delivery/service after expiry of the grace period.

Events due to force majeure, traffic or operational disruptions, strikes, lockouts as well as unforeseeable difficulties shall lead to a reasonable extension of the delivery and performance period, which may be extended by notifying the customer.

Both parties have the right to withdraw from the contract if the extension of the delivery time for the aforementioned reasons is more than three months behind. The customer shall not be entitled to any other or further claims in the event that the delivery period is exceeded.

Technical data, specifications and performance data in public statements, in particular advertising material, are not quality data. The functionality of the subject matter of the service is based on the subject matter of the service and the user documentation as well as the agreements made in this regard.

Claims for defects must be asserted in writing (text form) within two weeks, otherwise they will expire. Reference is made to Section 4 (Obligation to give notice of defects).

Subsequent performance may, at Ailio’s option, take the form of rectification of the defect or delivery of a defect-free performance item, also in the form of a newer version that has the contractually owed quality and whose use does not unreasonably impair the customer.

Before asserting claims for supplementary performance, the customer shall check with due diligence whether a defect subject to supplementary performance exists. If the alleged defect is not subject to subsequent performance, the customer shall bear the costs for the services rendered by Ailio to verify and remedy the defect, unless the (apparent) defect could not have been detected even with the greatest possible care.

Ailio may refuse subsequent performance during the customer’s default of payment.

If the customer has made changes to the services provided, liability is excluded unless these changes had no influence on the defect.

The limitation period for warranty claims – except in the case of claims for damages – is twelve months from receipt of the goods or acceptance of the service.

15. personnel, subcontractors 

Ailio shall bring about the operational readiness of the system by personnel qualified in accordance with the contractual agreements. Communication with the customer shall be in German or English, unless otherwise agreed. Ailio may, at its own discretion, use subcontractors for services for which performance by itself has been agreed, even without the customer’s consent. If consent is agreed, the customer may not refuse it without objective reasons.

16 Cancellation / Withdrawal, Cancellation Fee 

The customer may terminate the contract up to 4 days before the start of the service provision.

Up to 30 days before the start of the service provision, an expense allowance of 30% of the agreed fee is to be paid in the event of termination; if the customer terminates less than 30 days before the start of the service provision, the customer is obliged to pay 70% of the agreed fee.

In the event of termination, the contract will be reversed. Payments already made shall be refunded by the same means of payment by which they were made, unless otherwise agreed.

The right to extraordinary termination remains unaffected.

Cancellation, revocation and other declarations must be made in text form.

17. liability 

Due to the breach of contractual or pre-contractual obligations (cardinal obligations), in particular impossibility, delay, etc., Ailio is liable only for intent and gross negligence), whereby liability is limited to the amount of foreseeable errors.

Ailio is liable for damages due to culpable delay or non-delivery only in case of intent or gross negligence.

Ailio is not liable for preliminary and test versions of software, programs and web presences, which were made available to the customer free of charge upon request before the final acceptance or release and are not intended for final use due to a possible defectiveness.

Ailio is not liable for any damage caused by the registration of a website in search engines.

Ailio is also not liable for the content of web presences, electronic messages or e-mails realized and published on behalf of the customer. Ailio is not subject to any verification obligation here.

Ailio’s liability is also excluded for damage caused by improper handling, storage, overuse, non-compliance with regulations by the customer or third parties not authorized by Ailio. Ailio shall only be liable for the omission of necessary maintenance work insofar as Ailio has also assumed the duty of maintenance.

Ailio is not liable for damages to software or hardware or financial losses caused by its services, unless these are based on a grossly negligent or intentional act of Ailio, its vicarious agents or its legal representatives. For damage to health, body or life Ailio is liable without limitation.

Ailio will work towards the highest possible availability for electronic services (e.g. domain rental, web space, mail space, etc.). However, Ailio does not provide an availability guarantee.

If the customer has rented a domain from Ailio, the customer agrees to indemnify Ailio from any claims of third parties resulting from the illegality of the domain (in particular trademark or personal rights) or from content that the customer posts via this domain. The indemnification also includes all legal prosecution/defense costs.

The customer is responsible for proving that the defect was already present at the time of handover (acceptance) and grant Ailio at least two attempts to remedy the defect.

Ailio is liable for damages due to culpable delay or non-delivery only in case of intent or gross negligence.

Data communication via the Internet cannot be provided error-free and/or at all times, even according to the current state of the art. In this respect, Ailio is not liable for the constant uninterrupted availability of our online trading system.

18. confidentiality, data protection 

All business secrets that come to the knowledge of the contracting parties in the course of the cooperation shall be kept by the contracting parties with due diligence. All related documents and information are to be treated confidentially. The same applies to personal data covered by the provisions of the Federal Data Protection Act.

Information, documents and data are recorded, duplicated, used, exploited or stored exclusively for service purposes or within the framework of the business relationship.

For the purpose of billing as well as debt collection, Ailio is entitled to process and disclose personal data to third parties. The duty of care and confidentiality shall continue beyond the end of the contract and shall also apply if a cooperation does not materialize. 

19 Assignment Rights of retention and set-off 

An assignment of claims other than monetary claims shall only be permitted with the prior written consent of the other contracting party; such consent may not be unreasonably withheld.

A right of retention may only be asserted due to counterclaims from the respective contractual relationship.

Offsetting can only be declared with legally established or undisputed claims.

20 Place of Performance, Jurisdiction Agreement, Applicable Law 

Place of performance and exclusive place of jurisdiction is Bielefeld. The law of the Federal Republic of Germany shall apply to the exclusion of all conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.

21. final provisions 

All amendments and supplements to contractual agreements must be made in writing, unless text form has been agreed or is required by law.

The contracting parties undertake to replace invalid provisions with valid provisions that come as close as possible to the economic purpose of the invalid provision. The same applies to gaps in the agreements.

The invalidity of individual provisions of the party agreement shall not affect the validity of the remaining provisions.