Disclaimer:
Please note that the English version of this Data Protection Policy is for informational purposes only. In case of any discrepancies, the German version of this Data Protection Policy shall prevail.
Stand: 01.01.2025
1.1 These General Terms and Conditions (GTC) apply to all contracts between 91interactive GmbH (hereinafter referred to as "91interactive") and the customer, insofar as they relate to the provision of software, the creation of software, consulting, training, or services related to these.
1.2 These GTC apply according to § 310 BGB only to entrepreneurs within the meaning of § 14 BGB, legal entities under public law, or special funds under public law. They are part of every contract concluded between 91interactive and its respective contractual partner ('Customer'), unless expressly agreed otherwise in individual cases. They also apply to all future business relationships with the customer, even if no explicit reference is made to these GTC in the future.
1.3 Deviating, conflicting, or supplementary general terms and conditions of the customer (e.g., general purchasing conditions) will only become part of the contract if 91interactive has expressly agreed to their validity in writing. An explicit objection to the customer's general terms and conditions is not required. These GTC also apply exclusively if 91interactive has provided the service unconditionally, knowing the customer's deviating, conflicting, or supplementary terms and conditions.
2.1 Software, documents, or other materials (e.g., proposals, process drafts, test programs, etc.) provided by 91interactive to the customer prior to the contract are the intellectual property of 91interactive. They may not be duplicated or made accessible to third parties. If no contract is concluded, they must be returned or deleted at the discretion of 91interactive and may not be used further. Otherwise, these General Terms and Conditions also apply to the pre-contractual obligation relationship.
2.2 Offers from 91interactive to the customer are generally only binding if they are marked as such ('Binding Offers'). Otherwise, pre-contractual communications from 91interactive are generally non-binding and without obligation, unless the communication itself or the circumstances indicate otherwise. In particular, if 91interactive creates a mere cost estimate for the customer, it is merely an invitation for the customer to submit an offer, which 91interactive can accept either in writing (including by fax or email) or by providing the contractual services.
2.3 A binding offer to the customer is only valid for the duration specified in the offer. If no such period is specified, 91interactive is bound to the binding offer for four weeks from the date of issue. Binding offers from 91interactive are considered accepted if the customer confirms the offer in writing (including by fax or email) within the deadline or otherwise indicates acceptance.
2.4 Declarations to be made by the customer to 91interactive after the conclusion of the contract regarding the exercise of design rights and other declarations of intent, in particular setting deadlines, reporting defects, declarations of withdrawal, terminations, or declarations of reduction, require the written form (including by fax or email) to be effective.
3.1 For deliveries and services provided under these conditions, 91interactive will charge the prices specified in the offer. 91interactive reserves the right to charge for additional services that arise during development, provided they are not self-inflicted, on an hourly basis or possibly through an additional offer. All prices are exclusive of the German VAT applicable on the day of invoicing.
3.2 The deduction of a discount requires a special written agreement.
3.3 Unless otherwise specified in the individual offer or order confirmation, the fee for the services is due for payment without deduction within 10 days from the invoice date. The legal rules regarding the consequences of payment default apply.
3.4 The customer is only entitled to offset if their counterclaims have been legally established, are undisputed, or have been acknowledged by 91interactive. Furthermore, they are entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.
4.1 The start of the delivery time specified by 91interactive presupposes the clarification of all technical questions. Compliance with 91interactive's performance obligation also presupposes the timely and proper fulfillment of the customer's obligations. The defense of the unfulfilled contract remains reserved.
4.2 Delivery delays that occur without fault on the part of 91interactive entitle 91interactive to extend the delivery period by a reasonable time or to withdraw from the delivery obligation in whole or in part. If the delivery date is exceeded by more than 60 days in such cases, 91interactive is entitled to withdraw from the unfulfilled part of the contract in whole or in part.
4.3 If 91interactive is delayed in providing the service, the customer's claim for damages and reimbursement due to the delay is limited to 0.5% of the fee for the part of the service that cannot be used due to the delay for each completed week of delay. The liability for delay is limited to a total of 5% of this fee. This does not apply if the delay is due to gross negligence or intent by 91interactive.
4.4 If software is delivered to the customer on data carriers, the risk passes to the customer as soon as 91interactive has handed over the data carrier to the carrier/forwarder or the person or company designated to execute the delivery, unless otherwise agreed.
5.1 Claims for defects do not exist in the case of only insignificant deviation from the agreed or assumed quality and in the case of only insignificant impairment of usability. Product descriptions, technical data, specifications, and performance information do not constitute a guarantee without a separate written agreement. In the case of updates and new version deliveries of the software, defect claims are limited to the innovations of the update, upgrade, or new version delivery compared to the previous version status.
5.2 The customer assumes an obligation to inspect and report defects in relation to all deliveries and services from 91interactive in accordance with § 377 HGB. The customer will examine the software and the services provided by 91interactive as part of the support, including any changed or supplemented documentation, immediately after their respective provision, particularly with regard to the completeness and functionality of basic program functions. Any defects found must be reported to 91interactive immediately in writing (including by fax or email). If the immediate inspection or defect notification is omitted, the customer has no warranty claims regarding obvious or known defects, including consequential defects resulting from them. Defects that were not detectable during proper inspection must be reported to 91interactive immediately after discovery in writing (including by fax or email). Each defect report must contain a sufficiently detailed and specific description of the defects.
5.3 If the customer requests rectification due to a defect, 91interactive has the right to remedy the defect at its discretion either by repair or by fulfilling the contract software. If the customer has set 91interactive a further reasonable grace period after an initial unsuccessful deadline has passed, and this also expires without result, or if a reasonable number of rectification attempts have failed, the customer can terminate the contract or reduce the price and claim damages or reimbursement of expenses under the statutory conditions. Rectification can also be achieved by delivering a new program version of the software or a workaround.
5.4 The customer must report defects immediately in a comprehensible and detailed manner, providing all information useful for defect recognition and analysis in writing. In particular, the appearance, reproducibility, and effects of the defect must be specified.
5.5 91interactive is not obliged to provide a warranty if errors in the contractual software occur after changes to the usage and operating conditions (e.g., use of unsupported hardware or operating systems), after installation and operating errors attributable to the customer, after interventions in the software such as modifications, adjustments, connections with other programs, and/or after use contrary to the contract, unless the customer proves that the errors were already present at the time of delivery of the contractual software or are not causally related to the aforementioned events.
5.6 The customer may not engage competitors of 91interactive for defect rectification unless the customer can prove that the risk of disclosing important business and trade secrets of 91interactive, particularly regarding the contractual software, is excluded.
5.7 Claims for material defects expire within one year from the statutory start of the limitation period. The limitation period in the case of a supplier recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from the delivery of the defective item.
6.1 91interactive guarantees that the contractual software is free from third-party rights that would prevent its contractual use.
6.2 91interactive is only liable for infringements of third-party rights by its performance to the extent that the performance is used in accordance with the contract. 91interactive is liable for infringements of third-party rights only within the European Union and at the place of the contractual use of the performance. Claims for legal defects do not exist if there is only an insignificant deviation of 91interactive's performance from the contractual quality.
6.3 If a third party claims against the customer that a service provided by 91interactive infringes their rights, the customer must immediately notify 91interactive. 91interactive is entitled, but not obliged, to defend the asserted claims at its own expense, as far as permissible. The customer is not entitled to acknowledge third-party claims before giving 91interactive a reasonable opportunity to defend against the third-party rights in another way.
6.4 If such claims are made, 91interactive can, at its own expense, acquire a right of use, modify the software (licensed programs), replace it with an equivalent product, or - if 91interactive cannot achieve another remedy with reasonable effort - take back the service while refunding the remuneration paid by the customer, minus a reasonable usage fee. The interests of the customer will be appropriately considered.
6.5 Claims for legal defects expire within one year from the statutory start of the limitation period. The limitation period in the case of a supplier recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from the delivery of the defective item.
6.6 Section 7 applies additionally to claims for damages and reimbursement of expenses.
7.1 91interactive is liable to the customer for damages only in cases of intent or gross negligence. This does not apply to damages resulting from injury to the body, life, or health, for which there is mandatory statutory liability regardless of fault, particularly under the Product Liability Act, as well as in the case of the violation of essential contractual obligations (so-called cardinal obligations). Essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely.
7.2 Insofar as 91interactive is liable according to the aforementioned clause 7.1, the liability is limited to the contract-typical, reasonably foreseeable damage.
7.3 To the extent that 91interactive's liability for damages is excluded or limited, this also applies to authorized representatives, employees, and other vicarious agents of 91interactive.
7.4 In the event of data loss, 91interactive is only liable for the effort required to restore the data if the customer has properly backed up the data. In cases of slight negligence by 91interactive, this liability only applies if the customer has performed a proper data backup immediately before the action leading to the data loss.
7.5 Claims for damages by the customer, regardless of the legal basis, expire 12 months after the customer becomes aware of the circumstances giving rise to the claim, but no later than 3 years after the breach of duty. Grossly negligent ignorance is equivalent to knowledge. This does not apply if the respective claim is based on intentional conduct by 91interactive or if it is a claim for injury to life, body, or health.
8.1 91interactive is not responsible for delivery delays and performance disruptions due to events of force majeure.
8.2 Events considered as force majeure include, in particular, strikes, lawful internal company labor disputes, war, unrest, natural disasters, fire, sabotage attacks by third parties (such as spam emails), or the unintentional loss of permits. 91interactive will inform the customer about the occurrence of force majeure events.
9.1 The customer is responsible for obtaining the consents required from their customers and contractual partners under the provisions of the Federal Data Protection Act.
9.2 In the event that 91interactive gains access to personal data during the operation of the contractual software, or if such access cannot be technically excluded, the contractual parties agree to conclude an agreement for data processing on behalf according to § 11 Abs. 2 BDSG, if necessary. In this case, 91interactive will only use and process the personal data to the extent absolutely necessary for fulfilling the contract, and exclusively on behalf of and according to the instructions of the customer.
9.3 The customer agrees that 91interactive may store personal data (inventory data) and other information for the duration of the contract/order, insofar as and to the extent that this is necessary or appropriate for fulfilling the contractual relationship.
10.1 The contracting parties mutually agree to keep all information, data, and documents that become known to them in connection with the respective contractual relationship confidential, especially those that are expressly designated as confidential or are clearly recognizable as business or trade secrets within the meaning of § 17, §18 UWG, during the term of the contract and after the end of the cooperation, and not to make them accessible to third parties.
10.2 The rights and obligations arising from a separately concluded confidentiality agreement between the contracting parties remain unaffected.
91interactive may name the customer as a reference for self-promotion purposes, particularly on its homepage, social media presences, and in other promotional materials, possibly with a brief description of the contract subject (including company logo).
12.1 If the delivery item is standard software from third parties (manufacturers), the usage conditions of these third parties always apply. The license agreement is concluded directly between the manufacturer and the purchaser. 91interactive is only a mediator of usage rights and cannot and will not promise any changes to the usage conditions without the explicit consent of the third-party manufacturer. The valid usage conditions will be made available to the purchaser upon request, even before the contract is concluded.
12.2 Unless otherwise legally required, the licensee is not authorized to modify or edit the software or any written material provided to them, nor to copy or duplicate it.
12.3 Existing copyright notices or registration features, such as registration numbers in the software, must not be removed or altered.
13.1 The customer is not entitled to assign their rights from the contract with 91interactive, in whole or in part, to third parties. § 354a HGB remains unaffected.
13.2 91interactive is entitled to amend these General Terms and Conditions applicable to the contractual relationship with the customer in accordance with the following sentences, provided that this does not change essential performance contents for the equivalence relationship between the contracting parties and the change is reasonable for the customer. 91interactive will inform the customer of the change to the GTC in writing (including by fax or email). If the customer does not object to the change in writing (including by fax or email) within four weeks of receiving the change notification, the change is considered approved, and the amended version of the GTC is authoritative for the contractual relationship between 91interactive and the customer from that point on. 91interactive will expressly point out this consequence to the customer when notifying them of the change.
13.3 The customer will independently comply with applicable import and export laws for deliveries and services, particularly those of the USA. In the case of cross-border delivery or service, the customer is responsible for any customs duties, fees, and other charges. The customer will independently handle legal or regulatory procedures related to cross-border deliveries and services, unless otherwise expressly agreed.
13.4 The place of performance for delivery and payment is Filderstadt.
13.5 The place of jurisdiction for all disputes between the contracting parties is Stuttgart. However, 91interactive is also entitled to file a lawsuit at any other court of jurisdiction applicable to the customer, particularly their general place of jurisdiction.
13.6 The law of the Federal Republic of Germany applies exclusively, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13.7 If individual provisions of these General Terms and Conditions are invalid, the validity of the remaining provisions shall not be affected. Any invalid provisions are to be replaced by valid ones that come closest to the meaning and purpose of this regulation.
13.8 91interactive is entitled to perform the commissioned service in whole or in part through a qualified subcontractor.
