GENERAL TERMS AND CONDITIONS (GTC) OF LUPCODE
Version: April 1, 2019
§ 1 Definitions
(1) Services - all development, consulting, manufacturing, integration, testing, support, maintenance, and training services provided by LupCode, including the rental or licensing of software;
(2) Software - custom software and websites developed by LupCode specifically for the customer, as well as accompanying updates, upgrades, or patches;
(3) Acceptance - the customer's formal or implied declaration that the contractually owed performance result is substantially in accordance with the contract (§ 640 German Civil Code).
§ 2 Scope of Application
(1) These General Terms and Conditions (GTC) apply to all business relationships between LupCode, Feldstr. 10, 63329 Egelsbach, represented by Managing Director Luca Vogels (hereinafter: LupCode), with our customers (hereinafter: Customer).
(2) These Terms and Conditions apply exclusively. Any differing, conflicting, or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that LupCode has expressly agreed to their validity in writing beforehand. (3) Unless otherwise agreed, these terms and conditions, in the version valid at the time of the customer's order or, in any case, in the version last communicated to the customer in writing, shall also apply as a framework agreement to similar future contracts without the need for repeated reference to them in each individual case. (4) The language available for concluding the contract under these terms and conditions is exclusively German. § 3 Conclusion of Contract (1) All offers submitted by LupCode to the customer are subject to change and non-binding unless otherwise agreed beforehand or stated in the respective offer from LupCode. All offers are valid for 14 days unless otherwise stated in the offer. This also applies if LupCode has provided the customer with catalogs, technical documentation (e.g., plans, calculations), other product descriptions, or documents—including in electronic form.
(2) Each order placed by the customer constitutes a binding offer, which LupCode may accept within 14 days by sending a written order confirmation. Unless otherwise agreed, the customer is bound by their order for a period of 14 days from the date LupCode receives it.
(3) A contract with LupCode is only concluded when LupCode accepts the order, at least in written form (declaration of acceptance), or begins providing the service ordered or commissioned by the customer.
§ 4 Subject Matter of the Contract/Services
(1) LupCode provides the following services, insofar as contractually agreed
- Creation of (custom) software for a fee;
- Creation of (custom) websites for a fee;
- Licensing of software for a fee;
- Licensing of software for a fee;
- Licensing of websites for a fee;
- Licensing of websites for a fee;
- Services necessary for maintaining and restoring the operational readiness of software, as well as necessary updates and extensions of the software (maintenance and support services);
- Consulting and supporting services on a service contract basis in consultation with the customer.
(2) The details of the scope of services for each order or project are set out in a separate written contract or, if no mutually signed contract exists, in an order confirmation from LupCode in at least text form, in conjunction with the respective service description or a statement of work (SOW), also in at least text form.
(3) The provision or transfer of the software or website, as well as updates or extensions, is generally carried out in the form of object code as a download from the server of LupCode or the respective manufacturer. Provision of the source code is not required unless there is an explicit agreement to that effect.
(4) The project ends with the acceptance of the agreed deliverables or after the expiration of the fixed project duration. If the project consists of several phases, the client must accept the results of each phase separately (partial acceptance).
§ 5 Third-Party Services
(1) LupCode is entitled, at its own discretion, to transfer rights and obligations to third parties as vicarious agents for the performance of the contract. LupCode is also entitled to transfer the entire contract to a third party (assignment of contract). LupCode will inform the customer immediately in such a case. In the event of an assignment of contract, the customer has the right to terminate the contract without notice.
(2) To the extent necessary for the proper performance of the contractual obligations, documents, information, and data of the customer may be made accessible to third parties pursuant to paragraph 1 within the scope and in compliance with applicable data protection regulations. With the exception of an assignment of contract to a third party, LupCode remains responsible for the provision and any success owed by third parties when using third parties.
(3) Should the performance of LupCode require the services of third parties that are beyond LupCode's control, LupCode's delivery times for these services may be extended. LupCode will inform the customer of such an extension without undue delay. LupCode reserves the right to withdraw from the contract if the services of such third parties cannot be performed in a timely or proper manner. In such a case, LupCode will inform the customer without undue delay of the inability of the third party to perform the services in a timely or proper manner.
§ 6 Rights of Use
(1) Unless otherwise agreed in writing, LupCode grants the customer a simple right of use (hereinafter: "License") to the software provided. The License entitles the customer, subject to any other agreements, to install the software or customization services in object code form and to use them for their intended purpose.
(2) Unless otherwise agreed, all rights to the source code of the software belong exclusively to LupCode. The customer has no right to access or release the source code. In particular, the customer may not modify, exploit, or distribute it. Section 69e of the German Copyright Act remains unaffected.
(3) The transfer of the License—regardless of its type and scope—only takes place upon full payment of the agreed remuneration by the customer. Until full payment is received, LupCode permits the customer to use any deliverables only on a revocable basis. LupCode may revoke its permission to allow the customer to use such deliverables for which the customer is in arrears with payment for the duration of the arrears and prohibit their use for that period.
(4) The transfer of the license—regardless of its type and scope—is also subject to the condition subsequent of the installation of an executable version of the software as part of the supplementary performance, with the consequence that the customer loses the rights of use granted under this contract to the original software.
(5) Unless otherwise agreed, granted rights of use apply only to commercial use.
(6) Unless expressly agreed at least in written form, the customer is not entitled to make the software available to third parties for use, whether for a fee or free of charge. The customer is therefore not permitted to sublet or otherwise transfer the software to third parties. Under the same provision, the customer is further prohibited from decompiling, disassembling, or reverse engineering the software, unless the customer is authorized to do so under applicable mandatory copyright law.
(7) The customer warrants to LupCode that it is authorized to use all templates and designs provided to LupCode. Should the customer not be authorized to use them, contrary to this warranty, the customer shall indemnify LupCode against all third-party claims for damages resulting from the lack of authorization.
§ 7 Third-Party Licensing Provisions
(1) The customer may not remove or alter copyright or other proprietary rights notices of the respective licensor (whether LupCode or a third-party manufacturer) in the deliverables, unless otherwise agreed in writing beforehand.
(2) Insofar as the software covered by this agreement requires the use or integration of third-party components and is therefore subject to certain product- or service-specific terms and conditions of the respective manufacturers, these limit the scope of services and delivery provided by LupCode and take precedence over these General Terms and Conditions in case of conflict.
(3) If LupCode is not the manufacturer of the software covered by this agreement, LupCode is not responsible for the fulfillment of warranty obligations of the respective manufacturer. The customer may assert claims arising from the granted warranty solely against the manufacturer or warrantor. (2)
(4) The Customer shall comply with the license terms of the respective manufacturer and shall indemnify LupCode against any claims arising from a breach of these terms by the Customer and asserted by the manufacturer against LupCode.
§ 8 Maintenance / Support
(1) If LupCode has contractually agreed to provide maintenance and support services, LupCode will advise and support the customer by telephone or email regarding the use of the software, as well as information about applications, product recommendations, and configurations.
(2) LupCode will provide maintenance and support services
- within a reasonable timeframe, taking into account the order volume and the availability of suitable LupCode personnel;
- at LupCode's discretion, regularly by providing or installing (also via remote access) software updates, including providing updated documentation;
- within the scope of standard industry practice.
§ 9 Retention of Title
(1) LupCode retains title to all deliverables, including partial deliverables, until full payment of all current and future claims. In accordance with §449 of the German Civil Code (BGB), the retention of title also extends to processed or combined goods (extended retention of title). If the customer sells any deliverables before title passes to them, they hereby assign to LupCode any resulting claims against third parties; LupCode accepts this assignment.
(2) In the event of a breach of contract by the customer, in particular in the event of non-payment of the remuneration owed, LupCode is entitled to withdraw from the contract and unwind it in accordance with the statutory provisions. In this case, LupCode will demand the return of any deliverables provided. The customer hereby undertakes to return the Performance Results.
(3) If the Customer fails to pay the remuneration owed, LupCode may only assert the aforementioned rights if LupCode has previously set the Customer a reasonable deadline for payment without success, or if setting such a deadline is unnecessary under applicable law.
§ 10 Acceptance
(1) Upon completion of the contractually owed services, LupCode will inform the customer of the completion in writing. The customer must accept the services within seven days of being informed of the completion.
(2) Acceptance of the services requires a functional test. Acceptance may not be refused, in particular, due to defects that do not impair the functionality of the services or only impair it to an insignificant extent. After completion of individual sections or the entire service, the customer must immediately check whether the services have been rendered substantially in accordance with the contract.
(3) A functional test is successful if either no significant defects are present or all acceptance criteria are met, which were agreed upon between the parties before the acceptance test or in the contract. If the functional test is successful, acceptance must be declared immediately.
(4) Upon request by LupCode, the customer shall confirm in writing the completion of the full service or the completion of partial services.
(5) The completed service or partial service shall be deemed accepted if
- the customer uses the service or partial service for production work, or
- the customer or third parties make independent modifications to the delivered software or parts thereof, or
- the customer fails to provide written confirmation within seven days of being requested to do so by LupCode (Section 9, Paragraph 4).
(6) If, in exceptional circumstances, acceptance of the service is not possible, particularly because it is a purely contractual service, for which no specific result is guaranteed, LupCode shall receive either written approval or a reasoned statement from the customer within 14 calendar days of submitting its proof of activity. Complaint. In the event of a complaint, LupCode will submit a suitable proposal to the customer for its resolution within a reasonable timeframe, which the customer may only refuse for a valid reason. If no such reason exists, the customer will accept the proposed solution.
§ 11 Change Request Rules
(1) The customer may request changes to the agreed scope of services in writing until acceptance. After reviewing the change request, LupCode will explain to the customer the impact of the change request on the agreements made. This explanation will either include a concrete proposal for implementing the change request or information on why the change request is not feasible.
(2) If the change request requires extensive review to determine whether and under what conditions the change is feasible, LupCode may charge a fee for this, provided LupCode informs the customer of this and the customer subsequently commissions the review.
(3) If no agreement is reached or the change process ends for any other reason, the original scope of services remains in effect.
(4) Irrespective of the above procedure, changes may be agreed upon by mutual consent between the parties at any time. The agreements shall be recorded in writing and signed by the parties.
§ 12 Delivery and Delay
(1) Delivery dates are agreed upon individually or, upon acceptance of the order by LupCode, specified in the order confirmation. Delivery dates are only binding after confirmation by LupCode, which must be in written form at a minimum. All information provided by LupCode regarding the expected time and costs of a commissioned service are estimates based on the conditions specified by the customer and are non-binding. The same applies to information regarding delivery and performance dates, unless they are explicitly designated as binding.
(2) Delivery periods may be extended if the customer fails to perform necessary acts of cooperation or fails to provide information necessary for the provision of services in a timely manner. The same applies if the customer is in default of payment of the remuneration for the respective service provision for the duration of the default. (2) Delivery periods may be extended if the customer fails to perform necessary acts of cooperation or fails to provide information necessary for the provision of services in a timely manner.
(3) If the binding delivery deadline cannot be met due to unforeseen obstacles or events for which LupCode is not responsible or over which LupCode has no influence (non-availability of the service), LupCode will inform the customer immediately and provide a new delivery deadline. If the service is also unavailable within the new delivery deadline, LupCode is entitled to withdraw from the contract in whole or in part. If LupCode withdraws for this reason, the customer will be released from their payment obligation in whole or in part, and any payments already made by the customer will be refunded in whole or in part by LupCode.
(4) If LupCode is in default of performance, the customer must first set a reasonable grace period for performance. Only after the grace period has expired without performance is the customer entitled to withdraw from the contract; the provisions of Section 361 of the German Commercial Code (HGB) remain unaffected.
§ 13 Remuneration, Prices and Terms of Payment
(1) LupCode's remuneration is based on a fixed price, on time and materials, or on a combination of both models, as specified in the individual contract.
(2) Unless otherwise agreed in a specific case, the prices stated at the time of contract conclusion apply. All prices are quoted in euros and are subject to value-added tax at the applicable statutory rate at the time of invoicing. All payments are due immediately upon receipt of an invoice from LupCode without deduction.
(3) If a lump-sum total remuneration is agreed upon for the respective order, 50% of this remuneration is due immediately upon conclusion of the contract without deduction. The remaining amount will be invoiced monthly according to the progress of the work. After acceptance of completed work packages, LupCode is entitled to invoice a partial payment for these work packages in the amount of the value of the work performed. The final payment is due immediately and without deductions upon acceptance of the entire service by the customer.
(4) If the temporary provision of software or hardware by LupCode to the customer for use by the customer is part of the contractual services, the respective fee for use and for accompanying maintenance services is payable in advance for the agreed usage period and is due immediately and without deductions at the time of handover or granting of usage rights.
(5) All invoices and usage records will be sent to the customer electronically. The customer must raise any objections to invoices from LupCode in writing within six weeks of receipt of the invoice. After this period, objections can only be raised if the customer can prove that they were prevented from complying with the deadline through no fault of their own.
(6) The customer is in default upon expiry of the payment deadline. The purchase price shall accrue interest at the applicable default interest rate during the period of default. LupCode reserves the right to claim further damages for default. With respect to merchants, the right to default interest (§ 353 German Commercial Code) remains unaffected.
(7) If, after conclusion of the contract, it becomes apparent (e.g., through the filing of a petition for insolvency proceedings) that LupCode's claim to payment of the agreed remuneration is jeopardized by the customer's lack of solvency, LupCode is entitled to refuse performance and—if necessary, after setting a deadline—to withdraw from the contract in accordance with statutory provisions (§ 321 German Civil Code). In the case of contracts for the production of non-fungible goods (custom-made items), LupCode may declare withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.
§ 14 Contract and Price Adjustments
(1) LupCode reserves the right to amend these Terms and Conditions if this is necessary for valid reasons, in particular due to changes in the law or supreme court rulings, technical changes or developments, new organizational requirements of mass transit, gaps in the contractual provisions, changes in market conditions, or other equivalent reasons, and provided that the customer is not unreasonably disadvantaged.
(2) Amendments to the contractual provisions will be communicated to the customer in writing or by email at least six weeks before they come into effect. The customer has the opportunity to accept or object to the amendment in writing or by email within two weeks of receiving the notification. If the customer does not accept or object to the contractual provisions within the specified period, they will not become legally binding. LupCode then has the right to terminate the contract with due notice. (2) LupCode will explicitly inform the customer of this legal consequence in the notification of change.
(3) Within the framework of continuing obligations, LupCode is entitled to price increases, provided that these do not exceed 7% of the previously applicable price within one year of the last price increase or 15% of the previously applicable price within three consecutive years of the last price increase, and that the price increase corresponds to the cost increase incurred by LupCode for the provision of the services, even taking into account any cost savings that may have occurred, in particular, the necessary costs for the maintenance, upkeep, and further development of the technical and personnel infrastructure used for the provision of the services or the necessary costs for licensing third-party works.
(4) Unless a longer period is specified in the notification of change, price increases will take effect at the beginning of the third month after the customer receives the notification of change. The customer is entitled to terminate the contract without notice within six weeks of receiving notification of the price increase, effective on the date the price increase takes effect, provided the remuneration increases by more than 5%. If the customer does not exercise this right and has been informed of this legal consequence in the notification of the price increase, the contract will continue at the amended prices.
§ 15 Warranty
(1) With the exception of services provided under a service contract, LupCode warrants that the service is substantially free from defects. This is the case if it is not afflicted with defects that eliminate or diminish its value or suitability for ordinary use or for the use stipulated in the contract. The relevant point in time for determining whether a service is defective is the transfer of risk, i.e., the time of delivery of the service by LupCode to the customer, but at the latest, the time of acceptance of the service by the customer.
(2) The customer must inspect each service immediately upon receipt. Any defects discovered must be reported to LupCode in writing without delay. The customer's written notice of defects must describe the defect comprehensively and specifically. Defects that are not initially apparent must be reported immediately upon their discovery. If the customer fails to comply with this obligation, the delivered item shall be deemed approved with respect to this defect, with the consequence that the assertion of claims for defects is excluded. LupCode may demand reimbursement of expenses if, during an inspection of the performance initiated by the customer by means of a complaint, no defect is found and the customer knew or negligently failed to recognize that no defect existed.
(3) LupCode shall remedy defects reported in due time or recorded in the acceptance protocol without undue delay, within the scope of its technical capabilities.
(4) In the event of defects of title, LupCode may, at its own expense and at its own discretion:
- procure for the customer the right to use the delivered item or the component that constitutes the infringement;
- modify and alter the delivered item or the component that constitutes the infringement in order to remedy the infringement; or
- replace the subject matter of the performance or the component that caused the breach with another subject matter of comparable performance, provided this is reasonable for the customer.
(5) The customer's warranty rights are excluded in the event of damage or malfunctions caused by the customer's breach of contract (in particular, improper operation or the unauthorized termination of a programming process). This also applies if the customer has commissioned a third party without LupCode's written consent to make changes or modifications to the services.
(6) Services relating to all items provided by LupCode shall only be considered subsequent performance if the defect is expressly acknowledged by LupCode or if the customer's complaints regarding defects are proven to be justified. Otherwise, such services shall be considered special services.
(7) Should the service be defective, LupCode will, at its own discretion, remedy the defects by bug fixes, replacement, updates, or releases of a new software version. If remedying the defects is not possible, the customer will be shown alternative workarounds. To the extent that these are reasonable for the customer, they shall be considered subsequent performance. LupCode's right to refuse subsequent performance under the statutory conditions remains unaffected.
(8) If the defect cannot be remedied after three unsuccessful attempts at subsequent performance or after the expiry of a reasonable period set for subsequent performance, the customer is entitled to a price reduction. If the defect is material, the customer is entitled to withdraw from the contract instead of a price reduction. Further claims by the customer, in particular for consequential damages, are generally excluded. This does not apply to damages resulting from intent, gross negligence, or the breach of essential contractual obligations, the fulfillment of which is essential for the proper performance of the respective contract and on which the contractual partner may rely.
(9) The customer shall bear the costs of reinstalling and/or configuring software as part of the remedy.
(10) If LupCode performs services in connection with troubleshooting or remedying defects without being obligated to do so, LupCode reserves the right to invoice the customer for the expenses incurred. This applies in particular if a defect is not demonstrable, reproducible, or attributable to LupCode.
(11) Strict liability for initial defects pursuant to Section 536a Paragraph 1 Alternative 1 of the German Civil Code (BGB) is excluded. LupCode's liability for defects caused by its own negligence and for the absence of warranted characteristics remains unaffected.
(12) LupCode assumes no liability for the fact that the use of the performance results and hardware by the customer does not affect any manufacturer's warranties, statutory warranty claims against sellers or manufacturers of vehicles, their parts, devices, or other technical equipment, or their operating permits.
(13) Warranty claims expire one year after the transfer of risk.
§ 16 Contract Term and Termination
(1) Unless otherwise agreed, the minimum term of contracts for continuing obligations is three years, beginning on the agreed date of performance. The contract is automatically extended by a further year if and to the extent that neither party terminates the contract at least six months before the end of the agreed term.
(2) The mutual right to extraordinary termination for good cause remains unaffected.
(3) Upon termination becoming effective, LupCode is entitled to delete the customer's data. In the event of extraordinary termination, LupCode will retain the customer's data for a period of four weeks beyond the date of termination for retrieval; this does not apply if LupCode risks being subject to (criminal) prosecution or claims by third parties by retaining or making the content accessible.
§ 17 Customer's Obligations to Cooperate
(1) The customer is obligated to provide LupCode with all information necessary for the contractual performance of its services and to cooperate in the fulfillment of LupCode's contractual obligations to the necessary and reasonable extent. This applies in particular to the provision of necessary data, information, and approvals, as well as cooperation in project execution. LupCode has no obligation to conduct investigations in this regard. To the extent necessary for the performance of the contract, the customer shall temporarily provide LupCode with tools and grant it access to its premises and systems.
(2) If LupCode is to perform services related to the customer's software as part of its contractual obligations (e.g., installation, customization, etc.), LupCode must be able to access it at the agreed time and be provided with the necessary usage rights. The customer agrees to grant this access and provide LupCode with the corresponding rights.
(3) The customer is prohibited from circumventing technical measures designed to protect the services provided to them.
(4) The customer must take appropriate security precautions in the event that the software or hardware provided to them malfunctions, either wholly or partially (e.g., through data backup, documentation of software usage, troubleshooting, regular review of results, and emergency planning). It is the customer's sole responsibility to ensure the functionality of the work environment (e.g., by ensuring their computer systems are up-to-date and that all system resources necessary for proper operation are available) as well as any other peripherals of the software or hardware provided to them.
(5) If LupCode incurs additional expenses due to a culpable breach of the customer's obligations to cooperate or provide resources, LupCode is entitled to invoice the customer separately for these expenses. Further claims by LupCode remain unaffected. (6) In the event of operational disruptions caused by the customer's unauthorized or improper use, LupCode is entitled to exclude the customer from using the equipment until the disruption is resolved. (7) The customer undertakes to compensate for all damage or contamination caused by the customer or persons brought by the customer to the facilities, equipment (in particular test benches), or vehicles provided by LupCode. The customer shall bear the necessary costs of cleaning, repair, and other restoration. Further claims by LupCode (e.g., for damages) remain unaffected.
(8) The customer fulfills its obligations to cooperate (paragraphs 1 to 8) in its own interest and cannot claim any remuneration for doing so. If the customer fails to comply with its obligations to cooperate, any agreed performance deadlines will be extended accordingly. LupCode reserves the right to temporarily suspend services after a reasonable period and to resume them at its own discretion. Other claims and rights of LupCode remain unaffected.
§ 18 Third-Party Intellectual Property Rights
(1) If a third party asserts claims against the Customer based on patents, copyrights, or other intellectual property rights due to services provided by LupCode, LupCode shall, at its own expense, represent the Customer in any legal proceedings brought against it and indemnify the Customer against such claims.
(2) This shall only apply, however, if the Customer immediately informs LupCode of any such third-party claims and details of any legal proceedings and allows LupCode to make all decisions regarding the further use of the services challenged by the third party, the legal defense, and any settlement, and only if LupCode is informed of such claims before any claims for defects of title have expired. (2) This shall only apply, however, if the Customer promptly informs LupCode of any such third-party claims and details of any legal proceedings and allows LupCode to make all decisions regarding the further use of the services challenged by the third party, the legal defense, and any settlement, and only if LupCode is informed of such claims before any claims for defects of title have expired.
§ 19 Liability
(1) LupCode shall be liable to the customer without limitation for damages and reimbursement of expenses in the event of culpable injury to life, body, or health, as well as in the event of intent and gross negligence, in the event of fraudulent concealment of a defect or an expressly assumed guarantee, and in accordance with the Product Liability Act.
(2) LupCode shall also be liable in the event of a slightly negligent breach of a material contractual obligation (cardinal obligation). Material contractual obligations are those whose fulfillment is essential for the proper performance of the contract and on whose compliance the customer regularly relies and may rely. In these cases, however, liability is limited to compensation for foreseeable damages typical of this type of contract. Otherwise, liability for damages and reimbursement of expenses – regardless of the legal basis – is excluded. Claims for breach of a material contractual obligation shall become statute-barred after 12 months.
(3) If LupCode acts solely as an intermediary on behalf of and for the account of third parties, the customer has no liability or warranty claims against LupCode, unless LupCode itself is directly at fault in the selection of the third party. Should LupCode itself act as a customer of third parties, LupCode assigns all warranty, damage, and other claims against the third party to the customer. Before making any claims against LupCode, the customer undertakes to first pursue the assigned claims using all legally permissible means.
(4) If the installation or removal of delivered products is carried out not by LupCode itself, but by the customer or a third party commissioned by the customer, claims against LupCode for any resulting damage to the product or other property are excluded, unless LupCode exceptionally caused the damage through intent or gross negligence.
(5) The foregoing provisions shall also apply in favor of LupCode's legal representatives and agents, if claims are asserted directly against them. LupCode reserves the right to raise the defense of contributory negligence.
§ 20 Referencing
LupCode may list the customer as a reference in its sales and marketing materials and link to its website. Should the customer object to this, LupCode will immediately cease the relevant activities.§ 21 Force Majeure
(1) In the event of force majeure, the affected party shall be released from its performance obligations for the duration and extent of the impact. Force majeure exists when an event beyond the control of the respective party prevents the other party from fulfilling its obligations. This includes, in particular, fire damage, floods, strikes and lawful lockouts, as well as operational disruptions beyond the control of the other party or official orders.
(2) In the event of force majeure, the affected party shall immediately notify the other party of the occurrence and cessation of the force majeure and shall promptly make every effort to eliminate or limit the force majeure and its effects, as far as possible.
(3) In the event of force majeure, the parties shall determine whether the performance obligations will be fulfilled after the force majeure has ceased. A deadline may be mutually agreed upon, after which either party may terminate the contract if the force majeure has not been eliminated within that deadline. In the event of prolonged force majeure, either party shall retain the right to terminate the contract for good cause. (3) In the event of force majeure lasting longer than usual, each party shall retain the right to terminate the contract for good cause.
Section 22 Rights of Set-Off and Retention
(1) Set-off by the customer is excluded unless the customer's counterclaim is undisputed or has been legally established.
(2) The customer may only assert a right to refuse performance or a right of retention if LupCode's payment claim and the customer's counterclaim are based on the same contractual relationship.
§ 23 Confidentiality
(1) The contracting parties undertake to maintain strict confidentiality regarding all confidential information, in particular business and trade secrets of the other contracting party, that comes to their knowledge during the preparation, execution, and fulfillment of the contractual relationship and neither to disclose nor otherwise exploit it.
(2) The contracting parties are obligated to disclose confidential information only to those representatives and subcontractors who require knowledge of this information for the purpose of the agreement (need-to-know principle), provided that the respective receiving party ensures that its representatives comply with this agreement as if they themselves were bound by it.
(3) The obligation of confidentiality does not apply if the information in question must be disclosed by order of a court, an authority, or a law. The party so obliged shall immediately inform the other party of the disclosure and disclose the information in such a way as to maintain confidentiality to the greatest extent possible.
Section 24 Data Protection
(1) LupCode complies with the statutory data protection regulations when processing the customer's personal information. Insofar as LupCode's subcontractors (see Section 6) come into contact with personal data, a data processing agreement (DPA) will be concluded with them beforehand.
(2) Otherwise, the customer is responsible for data security.
§ 25 Final Provisions
(1) Amendments to these General Terms and Conditions must be in writing. This also applies to any amendment or waiver of this written form requirement. Individual agreements between the contracting parties pursuant to § 305b of the German Civil Code (BGB) or their authorized representatives are exempt from this requirement.
(2) Orders and supplementary agreements made orally are only binding if they have been confirmed by LupCode in writing and the customer does not object in writing within one week of receiving the confirmation. This also applies to any amendments to the contract after its conclusion.
(3) Legally relevant declarations and notices from the customer relating to the contract (e.g., setting deadlines, notices of defects, withdrawal, or price reduction) must be submitted in writing. Statutory form requirements remain unaffected.
(4) The contractual relationship between the parties and all disputes arising from or in connection with this contractual relationship are subject to the laws of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG), is excluded.
(5) The place of jurisdiction for all disputes arising from or in connection with these General Terms and Conditions and contracts concluded under them is the registered office of LupCode, provided the customer is a merchant or a legal entity under public law or a special fund under public law. The same applies if a customer has no general place of jurisdiction in Germany or if their domicile or habitual residence is unknown at the time the action is brought.