General Terms and Conditions (GTC)

§ 1 Scope and definitions

1.1 These General Terms and Conditions (hereinafter „GTC“) of Kurz & Lankow GbR, trading as „dataflair“, Hochkönigstr. 2, 83395 Freilassing (hereinafter „Provider“ or „dataflair“), apply to all contracts between the Provider and its customers for the services described in these GTC.

1.2 A consumer within the meaning of these GTC is any natural person who concludes a legal transaction for purposes that are predominantly outside their trade, business or profession (Section 13 BGB). An entrepreneur is a natural or legal person or a partnership with legal capacity that, when concluding the legal transaction, acts in the exercise of its trade, business or profession (Section 14 BGB).

1.3 These GTC apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the customer only become part of the contract if and to the extent that the Provider has expressly agreed to their application in text form. This requirement of consent applies even if the Provider renders the service without reservation while aware of the customer's conflicting terms.

1.4 The version of these GTC valid at the time the contract is concluded is decisive. Part A (General Provisions) applies to all services. The special provisions in Part B apply additionally and take precedence for the respective type of service concerned. In the event of conflicts, the special provisions take precedence over the general provisions.

1.5 The Provider renders its services in the following business areas, each of which is regulated separately in Part B: (a) individual software, web and system development; (b) graphic, UI/UX and design services; (c) brokerage of creators, artists and brands; (d) hosting (KVM/dedicated servers, domains, email) as well as colocation and rack housing; (e) other IT services including hardware assembly and sales.

§ 2 Conclusion of the contract

2.1 The presentation of services on the Provider's website, in quotation documents or in price lists does not constitute a binding offer, but a non-binding invitation to the customer to submit an offer of their own (invitatio ad offerendum).

2.2 The customer submits a binding offer by completing the online order form and clicking the final order button, by accepting an individual offer from the Provider, or by submitting an order in text form.

2.3 The Provider may accept the customer's offer within five (5) days by transmitting an order confirmation in text form (e.g. email), by requesting payment from the customer, or by commencing performance of the service. If several of these alternatives apply, the contract is concluded with whichever occurs first. If the Provider does not accept the offer within this period, it is deemed rejected.

2.4 The Provider is not obliged to conclude a contract and may refuse to conclude a contract without giving reasons. For individual development and design projects, the contract is generally concluded through the mutual acceptance of an individually prepared offer.

2.5 The contract text is stored by the Provider and made available to the customer in text form after the contract is concluded. The German language is available for concluding the contract.

2.6 The customer must ensure that the email address they provide is correct and that emails sent by the Provider can be received (configuring SPAM filters where necessary).

§ 3 Prices, payment terms and default

3.1 The prices agreed at the time the contract is concluded or shown on the website apply. For consumers, the prices stated are total prices including statutory VAT. For entrepreneurs, prices are understood to be plus the applicable statutory VAT, unless expressly stated otherwise.

3.2 The available payment methods are communicated to the customer during the order process or in the offer. Unless otherwise agreed, invoices are due immediately upon receipt without deduction.

3.3 For recurring services (e.g. hosting), billing is carried out in advance for the respective agreed billing period.

3.4 If the customer is in default of payment, the Provider is entitled to demand default interest. For consumers, the default interest rate is 5 percentage points, and for entrepreneurs 9 percentage points, above the base rate (Section 288 BGB). The assertion of further damages caused by default remains unaffected. The customer remains entitled to demonstrate that no damage or substantially lower damage has occurred.

3.5 If the customer is in default of payment, the Provider is entitled, after prior notice and the unsuccessful expiry of a reasonable period (generally 14 days), to temporarily suspend or block the services concerned. For continuing obligations, the right to extraordinary termination pursuant to Section 7 remains unaffected. The customer's obligation to pay for the period until the contract is effectively terminated continues.

3.6 The customer may only set off against undisputed claims or claims established by final court judgment. The customer is entitled to a right of retention only insofar as their counterclaim is based on the same contractual relationship. These restrictions do not apply to the consumer's claims arising from the reversal of a contract following a withdrawal.

3.7 The Provider is entitled to adjust the charges for continuing obligations (in particular hosting services, maintenance contracts and other ongoing services) at its reasonable discretion pursuant to Section 315 BGB, provided the costs underlying the pricing have demonstrably changed substantially. The following are considered relevant cost factors in particular:

• the development of wages and ancillary wage costs (measured against the collective wage index for the information and communication technology sector published by the Federal Statistical Office)
• the development of energy costs (measured against the producer price index for energy published by the Federal Statistical Office)
• the development of costs for data center and network infrastructure as well as software licenses
• general inflation (measured against the consumer price index published by the Federal Statistical Office)

3.8 Price adjustments are possible both upward and downward. The Provider passes on cost reductions to the customer in the same proportion in which it asserts cost increases through price increases.

3.9 The Provider notifies the customer of an intended price adjustment at least six (6) weeks before it takes effect, in text form (e.g. by email). The notification contains the new prices, the date on which they take effect and a comprehensible justification of the adjustment, stating the relevant cost factors.

3.10 If the customer is a consumer and the price increase exceeds the amount the customer had to pay under the previous agreement by more than 5 percent, the consumer is entitled to a special right of termination. The consumer may terminate the contract in text form up to the date the price adjustment takes effect; the termination becomes effective at the time the price increase takes effect. In the notification pursuant to paragraph 3, the Provider expressly and separately points out to the consumer this special right of termination, the form to be observed and the notice period. If the consumer does not object and does not terminate in good time, the new pricing is deemed accepted.

3.12 The foregoing paragraphs apply exclusively to ongoing continuing obligations. They do not apply to one-off services (e.g. individual development and design projects) where the price is conclusively set in the respective offer.

§ 4 The customer's duties to cooperate and conduct

4.1 The customer is obliged to provide complete and accurate information at the conclusion of the contract and during the contract term, and to notify any changes to their data (in particular address, email address, payment details) without delay.

4.2 The customer renders the acts of cooperation required for the provision of services in good time, in full and free of charge (e.g. provision of content, data, access, approvals and contact persons). Delays resulting from omitted or late cooperation are not to the Provider's detriment; agreed deadlines shift accordingly.

4.3 The customer undertakes not to use the Provider's services for unlawful purposes and not to store, transmit or distribute any content that violates applicable law or infringes the rights of third parties. In particular, the following is prohibited:

• the storage or distribution of content with pornographic, youth-endangering, hate-inciting, violence-glorifying or anti-constitutional content
• the infringement of copyright, ancillary copyright, trademark, patent, name, personality or other rights of third parties
• the sending of unsolicited advertising emails (spam) as well as any form of mass or bulk mailing without verifiable consent of the recipients
• the operation of unlawful file-sharing services as well as the distribution of malware (viruses, trojans, etc.)
• acts that endanger the security, integrity or availability of the systems of the Provider or third parties (e.g. DoS/DDoS attacks, port scans, unauthorized access)

4.4 Access credentials (user IDs, passwords, keys) must be kept secret, carefully protected from third-party access and made accessible only to authorized persons. The customer informs the Provider without delay if misuse of access credentials is suspected.

4.5 The customer is solely responsible for the content they provide and store on the Provider's systems. The Provider is under no obligation to monitor content within the meaning of Sections 7 et seq. DDG (German Digital Services Act).

§ 5 Indemnification against third-party claims

5.1 The customer indemnifies the Provider against all third-party claims asserted against the Provider due to an infringement of those third parties' rights by content posted, stored or distributed by the customer, or by the use of the services initiated by the customer. This includes the reasonable costs of the necessary legal defense, including court and attorney's fees.

5.2 The duty to indemnify does not apply insofar as the customer is not responsible for the infringement. In the event of a claim by third parties, the customer must inform the Provider without delay, truthfully and in full, and provide all information necessary for examination and defense.

§ 6 Blocking of services and content

6.1 If there are concrete indications that the customer is violating Section 4, or if third parties assert claims against the Provider regarding the customer's content that are not manifestly unfounded, the Provider is entitled to temporarily block the content or services concerned, in whole or in part, taking into account the customer's legitimate interests.

6.2 If programs, scripts or configurations used by the customer endanger the security or operation of the systems of the Provider or third parties, the Provider is entitled to deactivate them or to interrupt the connection to the internet.

6.3 The Provider will inform the customer about a blocking measure without delay and lift the block as soon as the reason for blocking has demonstrably ceased to exist. In the event of imminent danger, the information may also be provided subsequently. The customer's obligation to pay continues during a block for which they are responsible.

§ 7 Contract term, termination and termination button

7.1 The term is governed by the respective contractual agreement or the chosen service package. Unless otherwise agreed, the following provisions apply additionally.

7.2 For continuing obligations with consumers, the initial minimum term is at most 24 months. If the contract is not terminated by the end of the minimum term, it is extended indefinitely and may then be terminated by either party at any time with one (1) month's notice (Section 309 No. 9 BGB).

7.3 Different terms and renewal provisions may be agreed with entrepreneurs. Unless otherwise agreed, a minimum term of one year applies, with automatic renewal for one year at a time and a notice period of three months to the end of the respective term.

7.4 Terminations may be made in text form (e.g. by email); no stricter form is required (Section 309 No. 13 BGB). For continuing obligations concluded with consumers via the website in electronic commerce, the Provider makes an easily accessible termination option available via a termination button (Section 312k BGB).

7.5 The right to extraordinary termination for good cause remains unaffected for both parties. Good cause for the Provider exists in particular in the event of default of payment of more than four weeks with a not insignificant amount, in the event of repeated or serious violations of Section 4 despite a warning, and in the event of the storage of manifestly unlawful content.

7.6 After the contract ends, the Provider makes the customer's data available to them within a reasonable period in a common format, or enables its retrieval. Any rights of retention due to outstanding claims remain unaffected. After a reasonable period has expired, the Provider is entitled and obliged to delete the data.

§ 8 Liability

8.1 The Provider is liable without limitation on any legal grounds for intent and gross negligence, for the intentional or negligent injury to life, body or health, in accordance with the Product Liability Act, and to the extent of a guarantee assumed by the Provider.

8.2 In the event of the negligent breach of a material contractual obligation (cardinal obligation), liability is limited to the foreseeable damage typical of the contract. Material contractual obligations are those whose fulfillment makes the proper performance of the contract possible in the first place and on whose observance the customer may regularly rely.

8.3 Otherwise, the Provider's liability is excluded. The foregoing provisions also apply to liability for the Provider's legal representatives and vicarious agents.

8.4 For the loss of data, the Provider is liable in accordance with the foregoing paragraphs only to the extent that would have been necessary for recovery had the customer carried out proper and regular data backups, provided the customer is obliged to back up data and has failed to do so.

8.5 The Provider is not liable for disruptions or outages attributable to force majeure, the fault of third parties or circumstances beyond its control (e.g. failures of public communication networks, power outages, natural events, official measures).

§ 9 Data protection and commissioned processing

9.1 The Provider processes personal data exclusively in accordance with the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). Details of the processing can be found in the Provider's privacy policy.

9.2 Insofar as the Provider processes personal data on behalf of the customer (in particular in the context of hosting, development or IT services), the parties conclude a separate data processing agreement pursuant to Art. 28 GDPR. This takes precedence over the provisions of these GTC with regard to data processing.

§ 10 Amendments to these GTC

10.1 The Provider is entitled to amend these GTC with effect for the future, insofar as this is necessary due to a change in the legal situation, supreme court rulings or official requirements, serves to close security gaps, introduces new services or functions without adversely changing the existing contractual relationship, or is merely advantageous for the customer.

10.2 The Provider will notify the customer of other amendments at least six (6) weeks before they take effect, in text form. If the customer does not object within six (6) weeks of receiving the notification, the amended GTC are deemed accepted. In the notification, the Provider will separately point out to the customer the right to object, the deadline and the significance of remaining silent. If the customer objects, the contract continues on the previous terms; the right of termination of both parties remains unaffected.

§ 11 Final provisions, choice of law and place of jurisdiction

11.1 The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). For consumers, this choice of law applies only insofar as it does not deprive the consumer of the protection afforded by the mandatory provisions of the law of the state of their habitual residence.

11.2 If the customer is a merchant, a legal person under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the Provider's registered office in Freilassing. For consumers, the statutory places of jurisdiction apply.

11.3 The European Commission provides a platform for online dispute resolution (ODR), available at https://ec.europa.eu/consumers/odr. The Provider is not obliged to participate in dispute resolution proceedings before a consumer arbitration board and does not participate in such proceedings.

11.4 Should any provision of these GTC be or become wholly or partly invalid or unenforceable, the validity of the remaining provisions remains unaffected. The statutory provision replaces the invalid provision.

§ 12 Individual software, web and system development

12.1 The subject matter is the development of individual web applications, backends and complete systems, the creation of websites, and related programming and conception services. Contracts for the creation of individual software are generally contracts for work and services (Sections 631 et seq. BGB); the Provider owes the production of the work agreed in the specification sheet or service description.

12.2 The specific scope of services arises from the respective offer, the specification/requirements sheet or another service description. Services not expressly agreed are not owed. Ongoing consulting, maintenance or support services are services (Sections 611 et seq. BGB) and are not success-based, unless a work result is expressly agreed.

12.3 The customer's requests for changes and additions after the contract is concluded (change requests) require a separate agreement on scope, deadlines and remuneration. The Provider is entitled to charge for additional work resulting from subsequent change requests or incomplete specifications by the customer on a time-and-materials basis.

12.4 After completion, the Provider notifies the customer of readiness for acceptance. The customer must inspect and accept the work without delay, at the latest within fourteen (14) days. Insignificant defects do not entitle the customer to refuse acceptance. If the customer does not accept the contractually compliant work within the period despite being requested to do so, or uses it productively, acceptance is deemed to have taken place.

12.5 The Provider grants the customer the rights of use to the created work that are necessary for the contractually intended use. The granting of all rights of use is subject to the condition precedent of full payment of the agreed remuneration. Until full payment, only a revocable, non-transferable permission to use is granted. Until full payment, all rights remain with the Provider (reservation of rights).

12.6 All rights to pre-existing tools, libraries, frameworks, modules and know-how used by the Provider (in particular reusable components) remain with the Provider; in this respect, the customer receives a simple right of use necessary for the contractual purpose. Open-source and third-party software used is subject to the respective license terms, to which the Provider draws attention.

12.7 Warranty is governed by the statutory provisions of the law on contracts for work and services. For entrepreneurs, the limitation period for claims for defects is twelve (12) months from acceptance; the statutory periods in cases of intent, fraudulent concealment and in the cases of Section 8(1) remain unaffected. For consumers, the statutory limitation periods apply.

12.8 The Provider is entitled to name the customer as a reference and to use the services rendered (without disclosing confidential data) for the purposes of its own advertising, unless the customer objects in text form.

§ 13 Graphic design, UI/UX and corporate design

13.1 The subject matter is services in graphic design, the design of user interfaces (UI/UX) and the development of corporate design elements. Section 12 applies accordingly, unless otherwise regulated below.

13.2 The Provider creates drafts within the agreed scope. Unless otherwise agreed, a reasonable number of revision rounds is included; revisions beyond this are charged on a time-and-materials basis.

13.3 The granting of rights of use to the final design results is carried out in accordance with the agreed scope of use and is subject to the condition precedent of full payment. The rights to drafts not selected and to interim versions remain with the Provider.

13.4 The customer warrants that materials they provide (e.g. logos, texts, images, fonts) are free of third-party rights or that the necessary rights are held, and indemnifies the Provider against third-party claims in this respect (Section 5 applies accordingly).

§ 14 Brokerage of creators, artists and brands

14.1 The Provider brokers contacts and collaborations between creators, artists, brands and clients for professional projects and assignments. The Provider acts solely as a broker.

14.2 Any contract for the creative or advertising service to be rendered is concluded exclusively between the brokered parties. The Provider does not become a party to this main contract and owes neither its performance nor any particular brokerage success, unless expressly agreed otherwise.

14.3 The Provider is not liable for the creditworthiness, performance, reliability or conduct of the brokered parties or for the proper performance of the brokered main contract. The Provider is liable only within the scope of Section 8 for the proper performance of the actual brokerage activity.

14.4 The amount and due date of any brokerage commission, as well as the circumstances triggering the commission, are agreed separately.

§ 15 Hosting (KVM/dedicated servers, domains, email)

15.1 The subject matter is the provision of virtual (KVM) and dedicated servers, web space, email services and the brokerage and management of domains. The provision of storage and server resources is governed predominantly by tenancy law (Sections 535 et seq. BGB).

15.2 The Provider owes server availability of 99.0% on an annual average, measured at the handover point of the data center to the internet. Availability of 100% is not technically achievable. Announced maintenance windows and outages for which the Provider is not responsible (force majeure, disruptions of public networks, power outages, etc.) are excluded from the availability calculation.

15.3 The Provider will, where possible, carry out maintenance work during low-usage periods and – except in urgent cases – announce it in good time. The Provider is entitled to adapt the hardware and software used to the state of the art, provided this is reasonable for the customer.

15.4 The Provider's obligation to perform is limited to data communication between the handover point of its network to the internet and the server provided for the customer. The Provider has no influence on data traffic outside its own network; successful forwarding via third-party networks is not owed.

15.5 Unless expressly agreed (e.g. as a backup service), the Provider does not create backup copies of customer data. The customer is responsible for regularly backing up their data themselves and must not keep it exclusively on the Provider's systems.

15.6 When registering and managing domains, the Provider acts as a broker in the relationship between the customer and the respective registration authority (registry/registrar). Their allocation and usage policies apply additionally (e.g. the registration conditions of DENIC eG for .de domains). The Provider has no influence on the allocation of domains and assumes no guarantee for the availability of a desired domain or its freedom from third-party rights. The customer ensures that the requested domain does not infringe any third-party rights.

15.7 In the event of termination, the customer indicates whether a domain is to be deleted or transferred to another provider (KK/transfer request). If the customer does not fully initiate the provider change within thirty (30) days of the termination taking effect, the release may be revoked; the domain then continues to run subject to charge until a renewed transfer or deletion request is made.

§ 16 Colocation and rack housing

16.1 The subject matter is the provision of rack space, power supply and network connectivity in the data center for hardware brought in by the customer (colocation/rack housing).

16.2 The customer is solely responsible for the hardware they bring in, as well as its configuration, maintenance and functionality. The Provider does not owe any maintenance of customer hardware unless separately agreed.

16.3 The Provider does not provide insurance for the hardware brought in. The customer is advised to take out their own insurance. The Provider's liability for damage to the hardware is governed by Section 8.

16.4 To secure its due claims under the colocation contract, the Provider is entitled to a contractual lien on the hardware brought in, to the extent permitted by law. The Provider will assert a lien only after prior notice and the setting of a deadline.

16.5 Access to the data center is granted exclusively in accordance with the security and access rules of the Provider or the data center operator.

§ 17 Other IT services, hardware assembly and sales

17.1 The subject matter is other IT services such as consulting, installation, configuration, maintenance and support, as well as individual hardware assembly (e.g. server and system builds) and the sale of hardware components and devices.

17.2 Consulting, maintenance and support services are services (Sections 611 et seq. BGB) unless a specific work result is agreed. Individual hardware assembly to customer specifications is treated under the law on contracts for work and services (Sections 631 et seq. BGB), and the mere sale of hardware under sales law (Sections 433 et seq. BGB).

17.3 In the sale of hardware, the goods delivered remain the property of the Provider until full payment (retention of title). For entrepreneurs, an extended retention of title applies; the customer hereby assigns to the Provider, by way of security, their claims arising from any resale.

17.4 Warranty for defects in the sale of hardware is governed by the statutory provisions. For entrepreneurs, the limitation period for claims for defects in new goods is twelve (12) months from the passing of risk; excluded are the cases of Section 8(1) and the statutory right of recourse within the supply chain. For entrepreneurs, the duty to inspect and give notice of defects under Section 377 HGB applies. Manufacturer warranties remain unaffected.

17.5 Delivery and performance dates are only binding if they have been expressly agreed as binding. Partial deliveries are permitted insofar as they are reasonable for the customer.

The following withdrawal instructions apply to consumers who conclude a contract by distance selling or away from business premises.

Right of withdrawal

You have the right to withdraw from this contract within fourteen (14) days without giving any reason. The withdrawal period is fourteen days from the day the contract is concluded (for service and digital contracts) or from the day on which you, or a third party designated by you who is not the carrier, take possession of the goods (for deliveries of goods).

To exercise your right of withdrawal, you must inform us (Kurz & Lankow GbR, Hochkönigstr. 2, 83395 Freilassing, email: [email protected]) of your decision to withdraw from this contract by means of an unequivocal statement (e.g. a letter sent by post or an email). To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Consequences of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and at the latest within fourteen days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of this reimbursement.

Early expiry of the right of withdrawal

• (1) In the case of contracts for services, the right of withdrawal expires if we have fully performed the service and you expressly consented, before the start of performance, to us beginning performance before the withdrawal period expires, and you confirmed your acknowledgment that you lose your right of withdrawal upon full performance of the contract (Section 356(4) BGB).
• (2) If performance of the service begins at your express request before the withdrawal period expires and you withdraw before full performance, you owe reasonable compensation for the partial services rendered up to the withdrawal, provided you were duly informed about the right of withdrawal and the obligation to pay compensation.
• (3) In the case of contracts for the supply of digital content not on a tangible medium, the right of withdrawal expires if we have begun performance, you expressly consented to us beginning before the withdrawal period expires, and you confirmed your acknowledgment that you thereby lose your right of withdrawal (Section 356(5) BGB).
• (4) The right of withdrawal does not exist for contracts for the supply of goods made to the customer's specifications or clearly tailored to personal needs (Section 312g(2) No. 1 BGB) – this concerns in particular individually configured hardware and individually developed software/design services.
• (5) Consumers acting in the exercise of their trade, business or profession (entrepreneurs) have no right of withdrawal.

Model withdrawal form

(If you wish to withdraw from the contract, please complete this form and return it.)

To Kurz & Lankow GbR, Hochkönigstr. 2, 83395 Freilassing, email: [email protected]:

I/we (*) hereby withdraw from the contract concluded by me/us (*) for the provision of the following service / the purchase of the following goods (*): ____________________ Ordered on (*) / received on (*): ____________________ Name of the consumer(s): ____________________ Address of the consumer(s): ____________________ Date, signature (only for notification on paper): ____________________

(*) Delete as appropriate.