Terms and Conditions

§ 1 Scope and Definitions

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

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

1.3 These Terms apply exclusively. Deviating, conflicting, or supplementary terms and conditions of the customer only become part of the contract if and to the extent the Provider has expressly agreed to their applicability in text form. This requirement for consent also applies if the Provider, being aware of conflicting terms of the customer, performs the service without reservation.

1.4 The version of these Terms valid at the time the contract is concluded shall apply. 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 governed separately in Part B: (a) custom software, web, and systems development; (b) graphic design, UI/UX, and design services; (c) brokering of creators, artists, and brands; (d) hosting (KVM/dedicated servers, domains, email) as well as colocation and rack housing; (e) other IT services including custom hardware building and sales.

§ 2 Conclusion of the Contract

2.1 The presentation of services on the Provider's website, in offer documents, or in price lists does not constitute a binding offer, but rather a non-binding invitation for the customer to submit an offer (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 sending 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 occur, 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 obligated to enter into a contract and may decline to do so without giving reasons. For individual development and design projects, the contract is generally concluded through mutual acceptance of an individually prepared offer.

2.5 The Provider stores the contract text and makes it 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 provided is correct and that emails sent by the Provider can be received (configuring spam filters if necessary).

§ 3 Prices, Payment Terms, and Default

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

3.2 The available payment methods are communicated to the customer during the ordering 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 defaults on 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 (§ 288 BGB). The right to assert further default damages remains unaffected. The customer retains the right to prove that no loss, or a significantly lower loss, was incurred.

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

3.6 The customer may only set off undisputed or legally established claims. The customer has a right of retention only insofar as their counterclaim is based on the same contractual relationship. These restrictions do not apply to consumer claims arising from the reversal of performance following a withdrawal.

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

• the development of wages and ancillary wage costs (measured by the collective-bargaining index for the information and communication technology sector published by the Federal Statistical Office)
• the development of energy costs (measured by 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
• the general development of inflation (measured by 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 as it asserts cost increases through price increases.

3.9 The Provider will notify the customer of an intended price adjustment at least six (6) weeks before it takes effect, in text form (e.g. by email). The notice will include the new prices, the effective date, and a comprehensible justification for the adjustment, stating the relevant cost factors.

3.10 If the customer is a consumer and the price increase exceeds, by more than 5 percent, the amount the customer previously had to pay under the existing agreement, the consumer has a special right of termination. The consumer may terminate the contract in text form up until the price adjustment takes effect; the termination becomes effective at the time the price increase takes effect. The Provider will expressly and separately point out this special right of termination, the required form, and the termination period in the notice referred to in paragraph 3 above. If the consumer does not object and does not terminate in time, the new pricing is deemed accepted.

3.12 The preceding 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 fixed in the relevant offer.

§ 4 Customer's Duties to Cooperate and Conduct

4.1 The customer is obligated to provide complete and accurate information when concluding the contract and during its term, and to promptly notify the Provider of any changes to their data (in particular address, email address, and payment details).

4.2 The customer provides the cooperation required for the performance of the service in a timely, complete, and free-of-charge manner (e.g. provision of content, data, access, approvals, and points of contact). Delays caused by omitted or late cooperation are not the Provider's responsibility; 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 content that violates applicable law or infringes the rights of third parties. In particular, the following are prohibited:

• storing or distributing content that is pornographic, harmful to minors, inciting hatred, glorifying violence, or unconstitutional
• infringing copyright, related rights, trademark, patent, name, personality, or other rights of third parties
• sending unsolicited promotional emails (spam) or any form of bulk/mass mailing without demonstrable consent of the recipients
• operating unlawful file-sharing services or distributing malicious software (viruses, trojans, and the like)
• actions that endanger the security, integrity, or availability of the Provider's or third parties' systems (e.g. DoS/DDoS attacks, port scans, unauthorized access)

4.4 Access credentials (user IDs, passwords, keys) must be kept confidential, carefully protected from access by third parties, and made accessible only to authorized persons. The customer must notify the Provider immediately 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 has no obligation to monitor content within the meaning of §§ 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 rights caused by content posted, stored, or distributed by the customer, or by the customer's use of the services. This includes the reasonable costs of necessary legal defense, including court and attorney fees.

5.2 The indemnification obligation does not apply insofar as the customer is not responsible for the infringement. In the event of a third-party claim, the customer must inform the Provider immediately, truthfully, and completely, and provide the Provider with all information required to assess and defend against the claim.

§ 6 Blocking of Services and Content

6.1 If there are concrete indications that the customer is violating § 4, or if not manifestly unfounded third-party claims are asserted against the Provider due to the customer's content, the Provider is entitled to temporarily block the affected content or services, 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 Provider's or third parties' systems, the Provider is entitled to deactivate them or to interrupt the connection to the internet.

6.3 The Provider will inform the customer of a blocking measure without delay and will lift the block as soon as the reason for the block has demonstrably ceased to exist. In the event of imminent danger, the notification may also be given afterward. The customer's payment obligation continues during a block for which the customer is responsible.

§ 7 Contract Term, Termination, and Termination Button

7.1 The term is determined by the respective contractual agreement or the selected service package. Unless otherwise agreed, the following provisions apply in addition.

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

7.3 Different terms and renewal provisions may be agreed with entrepreneurs. Absent any deviating agreement, a minimum term of one year applies, automatically renewing for one year at a time, with a three-month notice period prior to the end of the respective term.

7.4 Termination may be made in text form (e.g. by email); no stricter form is required (§ 309 No. 13 BGB). For continuing obligations concluded with consumers via the website in electronic commerce, the Provider provides an easily accessible termination option via a termination button (§ 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 case of payment default exceeding four weeks involving a not insignificant amount, repeated or serious violations of § 4 despite a warning, and the storage of manifestly unlawful content.

7.6 After termination of the contract, the Provider will make the customer's data available to the customer within a reasonable period in a common format, or enable its retrieval. Any rights of retention due to outstanding claims remain unaffected. After a reasonable period has elapsed, the Provider is entitled and obligated to delete the data.

§ 8 Liability

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

8.2 In the case of negligent breach of a material contractual obligation (cardinal obligation), liability is limited to the typical, foreseeable damage. Material contractual obligations are those whose fulfillment is essential to the proper performance of the contract 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 agents.

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

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

§ 9 Data Protection and Processing on Behalf

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 on 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 within the scope of hosting, development, or IT services), the parties shall enter into a separate data processing agreement pursuant to Art. 28 GDPR. This agreement takes precedence over the provisions of these Terms with regard to data processing.

§ 10 Amendment of These Terms

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

10.2 The Provider will notify the customer of any other amendments in text form at least six (6) weeks before they take effect. If the customer does not object within six (6) weeks of receiving the notice, the amended Terms are deemed accepted. The Provider will separately inform the customer in the notice of the right to object, the deadline, and the significance of remaining silent. If the customer objects, the contract continues under the previous terms; the right of either party to terminate remains unaffected.

§ 11 Final Provisions, Choice of Law, and 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 mandatory provisions of the law of the country of their habitual residence.

11.2 If the customer is a merchant, a legal entity under public law, 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 seat in Freilassing. For consumers, the statutory places of jurisdiction apply.

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

11.4 Should any provision of these Terms be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by the applicable statutory provision.

§ 12 Custom Software, Web, and Systems Development

12.1 This covers the development of custom web applications, backends, and complete systems, the creation of websites, and related programming and conceptual services. Contracts for the creation of custom software are generally contracts for work (§§ 631 et seq. BGB); the Provider owes the production of the work agreed in the specification document or service description.

12.2 The specific scope of services results from the respective offer, the specification document, or another service description. Services not expressly agreed are not owed. Ongoing consulting, maintenance, or support services are services (§§ 611 et seq. BGB) and are not success-based unless a specific work result has been expressly agreed.

12.3 Customer requests for changes or extensions after the contract is concluded (change requests) require a separate agreement on scope, deadlines, and remuneration. The Provider is entitled to charge for additional effort based on time spent, where such effort results from subsequent change requests or incomplete customer specifications.

12.4 Upon completion, the Provider will notify the customer of its readiness for acceptance. The customer must inspect and accept the work without delay, and no later than within fourteen (14) days. Immaterial defects do not entitle the customer to refuse acceptance. If the customer fails to accept the work as contractually agreed within this period despite being requested to do so, or uses it productively, acceptance is deemed to have occurred.

12.5 The Provider grants the customer the rights of use in the created work required for the contractually intended use. The grant of all rights of use is subject to the condition precedent of full payment of the agreed remuneration. Until full payment is made, only a revocable, non-transferable permission to use is granted. All rights remain with the Provider until full payment is made (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; the customer receives only a simple right of use necessary for the purpose of the contract. Open-source and third-party software used is subject to its respective license terms, which the Provider will point out.

12.7 Warranty is governed by the statutory provisions of contract-for-work law. For entrepreneurs, the limitation period for defect claims is twelve (12) months from acceptance; the statutory periods in cases of intent, fraud, and the cases under § 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 self-promotion purposes, provided the customer does not object in text form.

§ 13 Graphic Design, UI/UX, and Corporate Design

13.1 This covers graphic design services, the design of user interfaces (UI/UX), and the development of corporate design elements. § 12 applies accordingly unless otherwise provided below.

13.2 The Provider creates drafts within the agreed scope. Unless otherwise agreed, a reasonable number of revision rounds is included; additional revisions are billed based on time spent.

13.3 The grant of rights of use in the final design results is made in accordance with the agreed scope of use and is subject to the condition precedent of full payment. Rights to designs not selected, as well as to intermediate drafts, 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 have been obtained, and indemnifies the Provider accordingly against third-party claims (§ 5 applies accordingly).

§ 14 Brokering of Creators, Artists, and Brands

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

14.2 Any contract regarding the creative or promotional 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 a specific brokering success, unless expressly agreed otherwise.

14.3 The Provider is not liable for the creditworthiness, capability, reliability, or conduct of the brokered parties, nor for the proper performance of the brokered main contract. The Provider's liability is limited to § 8 with regard to the proper performance of its actual brokering activity.

14.4 The amount and due date of any brokering commission, as well as the circumstances triggering the commission, will be agreed separately.

§ 15 Hosting (KVM/Dedicated Servers, Domains, Email)

15.1 This covers the provision of virtual (KVM) and dedicated servers, web space, email services, as well as the brokering and management of domains. The provision of storage and server resources is primarily governed by lease law (§§ 535 et seq. BGB).

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

15.3 The Provider will, where possible, carry out maintenance work during periods of low usage and will announce it in advance, except in urgent cases. The Provider is entitled to update the hardware and software used to reflect the current 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 to the customer. The Provider has no influence over 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 solely responsible for regularly backing up their own data and must not store it exclusively on the Provider's systems.

15.6 When registering and managing domains, the Provider acts as an intermediary between the customer and the respective registry/registrar. The registry's/registrar's allocation and usage policies apply additionally (e.g. DENIC eG's registration terms for .de domains). The Provider has no influence over domain allocation and makes no warranty regarding 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 shall indicate whether a domain should be deleted or transferred to another provider (transfer/release 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 will then continue to run on a chargeable basis until a new transfer or deletion request is made.

§ 16 Colocation and Rack Housing

16.1 This covers 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 the customer's hardware unless separately agreed.

16.3 The Provider does not insure 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 § 8.

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

16.5 Access to the data center is governed exclusively by the security and access regulations of the Provider or the data center operator.

§ 17 Other IT Services, Hardware Building and Sales

17.1 This covers other IT services such as consulting, installation, configuration, maintenance, and support, as well as custom hardware building (e.g. server and system assembly) and the sale of hardware components and devices.

17.2 Consulting, maintenance, and support services are services (§§ 611 et seq. BGB) unless a specific work result has been agreed. Custom hardware built to customer specifications is governed by contract-for-work law (§§ 631 et seq. BGB); the pure sale of hardware is governed by sales law (§§ 433 et seq. BGB).

17.3 When hardware is sold, the delivered goods remain the Provider's property until paid in full (retention of title). For entrepreneurs, an extended retention of title applies; the customer hereby already assigns its claims from any resale as security to the Provider.

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

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

The following withdrawal notice applies to consumers who conclude a contract by distance selling or off-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 was concluded (for service and digital contracts) or from the day on which you, or a third party named by you who is not the carrier, took possession of the goods (for the supply of goods).

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

Effects 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 received notice of your withdrawal. For this reimbursement, we will use the same means of payment you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged any fees as a result of such reimbursement.

Premature expiry of the right of withdrawal

• (1) In the case of contracts for services, the right of withdrawal expires once we have fully performed the service, provided you expressly agreed, before performance began, that we may begin performance before the withdrawal period has expired, and confirmed your knowledge that you lose your right of withdrawal once the contract has been fully performed (§ 356(4) BGB).
• (2) If, at your express request, performance of the service begins before the withdrawal period has expired and you withdraw before performance is complete, you owe reasonable compensation for the partial performance rendered up until withdrawal, provided you were properly informed of the right of withdrawal and the obligation to pay compensation.
• (3) For contracts for the supply of digital content not provided on a tangible medium, the right of withdrawal expires once we have begun performance, provided you expressly agreed that we may begin before the withdrawal period has expired and confirmed your knowledge that you thereby lose your right of withdrawal (§ 356(5) BGB).
• (4) The right of withdrawal does not apply to contracts for the supply of goods made to customer specifications or clearly personalized (§ 312g(2) No. 1 BGB) — this applies in particular to individually configured hardware and individually developed software/design services.
• (5) Consumers acting within the scope of their trade, business, or profession (entrepreneurs) have no right of withdrawal.

Model withdrawal form

(If you wish to withdraw from the contract, please fill out this form and send it back.)

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

I/We (*) hereby give notice that I/we (*) withdraw from my/our (*) contract for the provision of the following service / the purchase of the following goods (*): ____________________ Ordered on (*) / received on (*): ____________________ Name of consumer(s): ____________________ Address of consumer(s): ____________________ Date, signature (only if this form is notified on paper): ____________________

(*) Delete as appropriate.