TERMS AND CONDITIONS

1. General, contractual partners, scope of application

   1. The contractual partners within the framework of the following General Terms and Conditions are alkima LTD, Centris Business Gateway, Level 2M, Triq Is-Salib Tal-Imriehel, Zone 3, Central Business District, CBD3020 Birkirkara, MALTA (hereinafter referred to as "alkima WEB & DESIGN ®") and the customer. The General Terms and Conditions apply in particular to contracts for the provision and use of hosting products, consulting, programming, and design services.

   2. The services provided by alkima WEB & DESIGN ® are exclusively subject to this General Terms and Conditions; any General Terms and Conditions of the customer that conflict with or deviate from this General Terms and Conditions will only be acknowledged by alkima WEB & DESIGN ® to the extent that alkima WEB & DESIGN ® has expressly agreed to them in writing. Even if alkima WEB & DESIGN ® didn’t object to them in an individual case, they still do not have any effect. The contract language is English.

   3. These General Terms and Conditions shall apply in the version valid at the time of the conclusion of the contract or, in any case, in the version most recently disclosed to the customer in text form as a framework agreement also for similar future contracts, without the need to refer to the General Terms and Conditions again in each case.

   4. alkima WEB & DESIGN ® reserves the right to change these General Terms and Conditions at any time. The customer will be notified about these changes in text form. If the customer does not object in writing to alkima WEB & DESIGN ® within 6 weeks after receipt of the notification of the change, the changed General Terms and Conditions are considered to be accepted. If unforeseeable and uninfluenceable changes occur after the conclusion of the contract (e.g. changes in the law) or if gaps become apparent which considerably disturb the relationship between performance and consideration, alkima WEB & DESIGN ® has the right to adapt the general terms and conditions even without the customer's consent. The customer shall also be notified of this in writing.

   5. By placing an order with alkima WEB & DESIGN ®, regardless of the form in which it takes place, the customer accepts these general terms and conditions for the duration of the entire business relationship.

   6. The client allows alkima WEB & DESIGN ® to send emails with information to the customer's email addresses. Permission can be revoked at any time.

   7. The customer allows alkima WEB & DESIGN ® to use the commissioned project including all data as a reference for advertising purposes.

2. Offer, scope of services, conclusion of contract

   1. The services offered by alkima WEB & DESIGN ® on its website, in the project management system currently in use or advertisements, catalogues, or brochures are subject to change. They represent a non-binding invitation to the customer to order corresponding services from alkima WEB & DESIGN ®.

   2. The contract between alkima WEB & DESIGN ® and the customer is only concluded upon acceptance of the offer. Offers are valid for 14 days unless otherwise stated in the offer. Offers are provided to the customer in written form. Cost or time estimates in the shared project management environment are to be viewed as offers.

   3. The contract begins with the signing of the offer or acceptance in the project management environment by the customer or by a start date specified in the offer, but at the latest when the service is provided by alkima WEB & DESIGN ®. For hosting services, at the latest when the server capacity is provided.

   4. Oral collateral agreements do not exist. Collateral agreements as well as subsequent changes require the express written consent of alkima WEB & DESIGN ®. This also applies to assurances and subsequent contractual amendments.

   5. Dedicated project manager / Service contingent - the agreed time quota only exists for the respective billing month. Unused time quota cannot be carried over to subsequent months and will expire. Hours that go beyond the agreed time quota will be billed on the 1st of the following month.

   6. The dedicated project manager is available for project management. This is the coordination between the customer and the project teams. Technical services such as programming, design or hosting services are not part of the service.

   7. If support agreements or SLA agreements have been signed between the customer and alkima WEB & DESIGN ®, alkima WEB & DESIGN ® is available during the service times agreed therein. Work carried out is invoiced immediately, but no later than the 1st of the following month. The support agreement refers to "first-level support". "First-level support" covers emergency support including error analysis and correction as far as technically possible in the first instance, as well as communication / coordination with third-party providers. "First-level support" does not include things / tasks / work that require a delayed solution or processing and / or require technical personnel outside of "first-level support" to solve them. Delayed means that the solution cannot be completed and / or implemented within the first 2 hours after work begins.

   8. The update service for the software used by the customer is carried out by alkima WEB & DESIGN ® at its own discretion. The monthly time quota agreed in the offer is used exclusively for the software updates and is limited to the billed month and cannot be used for further months. Security updates are carried out promptly and feature updates at intervals after alkima WEB & DESIGN ® has checked them and from the point of view of alkima WEB & DESIGN ® there should be no complications. The update service does not include an upgrade of the software in which the software is significantly technically converted or changed.

   9. The scope of services for existing frameworks/software exclusively includes the scope of services of the frameworks/software used. This means that, for example, when a website is delivered with the content management system “WordPress”, only the functionality of this software is included. Additional modules or customizations are listed and described separately in contracts.

   10. Systems (frontends) developed by alkima WEB & DESIGN ® support, at the time of delivery, the last two current versions of the browsers Edge, Firefox and Chrome under the current Windows operating system and Safari under the current macOS operating system.

   11. Domains: alkima WEB & DESIGN ® sells domains as a reseller of alkima GmbH, Colmarer Str. 12, 65203 Wiesbaden. The applicable extended terms and conditions for “Domains” can be found at www.alkima.de/egd.

3. Prices and due date of payment

   1. All prices shall be understood exclusive of the value-added tax statutory at the relevant time.

   2. Discounts shall not be granted.

   3. Invoices from alkima WEB & DESIGN ® are due for payment without deduction immediately after receipt by the customer, unless other payment conditions have been agreed in writing.

   4. If the customer defaults on payments, alkima WEB & DESIGN ® is entitled to refuse to fulfill due services to the customer. In such cases alkima WEB & DESIGN ® will give the customer timely notice of the suspension, setting a deadline for the removal of the default. In addition, alkima WEB & DESIGN ® is entitled to charge default interest at a rate of 9 percentage points above the base interest rate. If the customer chooses the payment method of direct debit, he/she must also bear the costs incurred due to the non-redemption or reversal of the direct debit due to a lack of funds in the account. These are in particular the fees charged by the bank and the costs of notification.

   5. The withholding of payments due to or the offsetting of counterclaims by the customer are only permissible if these counterclaims are undisputed or have been legally established.

   6. alkima WEB & DESIGN ® is entitled to increase the remuneration for subscriptions with written notice of three months to the end of the month, provided that after the conclusion of the contract either the necessary costs incurred for the provision of the services, in particular the costs of maintenance and further development of the technical infrastructure, or the costs for customer service and general administration - also taking into account any cost savings that may have occurred - have increased in total. These costs shall be proven to the customer upon request.

   7. alkima WEB & DESIGN ® is entitled to charge twice for services outside of business hours, especially for night work or emergency support. This is equivalent to the usual surcharge for work during irregular business hours.

   8. If payment in installments has been agreed with the customer, regardless of the form, and if the customer does not pay an installment, does not pay it in full or does not do so on time, this agreement on payment in installments expires without a notice of termination being required. The judicial recovery of the calculated remaining claim can take place without prior reminders. A subsequent demand of the claims for the statutory interest on arrears is therefore reserved.

   9. The transfer of rights to the created services such as layouts or applications only takes place after all agreed invoices or fees have been paid.

   10. If alkima WEB & DESIGN ® purchases software (e.g. plugins, modules for systems, external services or an independently usable software) of any kind on behalf of the customer, alkima WEB & DESIGN ® will pass the costs on to the customer. In addition, alkima WEB & DESIGN ® is entitled to add a surcharge of up to 10% of the net purchase price to the purchase price of the software as a processing fee. This surcharge does not have to be listed separately. The contract term for software is always 12 months, with a notice period of 3 months at the end of the contract term, regardless of the contractual conditions between alkima WEB & DESIGN ® and the software provider, unless otherwise agreed.

4. Commencement and termination of contract

   1. The contract commences on the date agreed with the customer, but at the latest when the first invoice is issued.

   2. Contracts and agreenents have a term of 12 months with a notice period of 3 months at the end of the contract, unless otherwise contractually agreed.

   3. The right to terminate the contract without notice for good cause remains unaffected. Such a situation exists in particular if:

      • the customer is in default of payment for more than two months;

      • the customer repeatedly violates the provisions of these General Terms and Conditions;

      • an application for the opening of insolvency proceedings has been made against the customer and such an application has been opened or rejected for lack of assets.

5. Responsibility and duties of the customer

   1. The customer undertakes to use alkima WEB & DESIGN ®'s services exclusively for the contractually agreed purposes. Access to the services of alkima WEB & DESIGN ® shall exclusively be through the agreed channels. The customer shall not circumvent, remove, switch off, or otherwise disable any security measures implemented by alkima WEB & DESIGN ®.

   2. The customer shall comply with appropriate technical and organizational security standards and ensure that no viruses from his systems enter alkima WEB & DESIGN ®'s systems. Furthermore, the customer shall control the proper use of the services covered by the contract by his employees and in particular the employees who are also noted in his systems as further authorized users. He shall oblige his authorized users to comply with the provisions of these GTC. The liability of alkima WEB & DESIGN ® is excluded in case of damages caused by the customer or his employees or persons who gained access to the systems through the customer.

   3. The customer shall ensure that the contractual use by alkima WEB & DESIGN ® of the information, data, and materials provided by him does not infringe on any rights of third parties. Before providing alkima WEB & DESIGN ® with such information, data and materials, the customer shall check whether alkima WEB & DESIGN ® is allowed to use such information, data, and materials within the framework of the agreed services in accordance with the contract and, if necessary, to provide any necessary rights of use and to obtain the consent of third parties. The customer shall indemnify alkima WEB & DESIGN ® against all claims of third parties which result from a breach of the aforementioned obligations. The indemnification also includes the costs of any necessary legal defense.

   4. Since the success or failure of the cooperation also depends crucially on whether and to what extent the customer contributes to the realization of the projects within the scope of his performance, he undertakes to actively support alkima WEB & DESIGN ® in the provision of the service in the best possible way. In particular, the customer undertakes:

      1. to provide alkima WEB & DESIGN ® with any information, documents and materials necessary for the performance of the contract, in particular access data, etc. for the purpose and for the duration of the performance of the contract;

      2. to grant alkima WEB & DESIGN ® and their established under this contract personnel and agents access to any contractual systems and devices, in particular hardware and software;

      3. to work with sufficient and suitable personnel within the scope of contract implementation and to provide the system requirements necessary to maintain or induct the smooth functioning of the systems;

      4. to notify alkima WEB & DESIGN ® immediately of any errors, defects or malfunctions and, in particular, to observe the symptoms that have occurred in detail and to report them immediately in text form (e.g. e-mail) with a corresponding description. The customer will support alkima WEB & DESIGN ® to the best of his ability in the search for the cause of the error and comply with the suggestions made by the agency for debugging and troubleshooting;

      5. to coordinate the dates and meetings necessary for the execution of the contract with alkima WEB & DESIGN ® in such a way that the schedule / process agreed upon conclusion of the contract is not delayed and, in cases of doubt, to consult with alkima WEB & DESIGN ® in good time;

      6. to provide content and content elements (image, sound, text or similar) requested by alkima WEB & DESIGN ® in a common, directly usable digital format;

      7. to ensure that all cooperation obligations necessary for the provision of the agreed services are carried out on time, in full and free of charge for alkima WEB & DESIGN ®.

      If the customer does not meet his obligations to cooperate, any specified periods of time are extended accordingly and appropriately. Further rights by alkima WEB & DESIGN ® remain unaffected.

   5. If alkima WEB & DESIGN ® is to carry out updates for the software used, the customer must ensure that all modules / plugins always have a valid license so that these modules / plugins are compatible with the latest version of the software used. alkima WEB & DESIGN ® does not guarantee that modules / plugins are able run with the latest software version and does not assume any license costs for modules / plugins.

   6. alkima WEB & DESIGN ® requests the customer to accept the project in the common project management environment, to which the customer was given access before the start of the project, or by email. If the customer does not carry out an acceptance test within 2 weeks of being requested to do so, the customer tacitly agrees to a complete acceptance of the project.

6. Changes in performance and availability

   1. alkima WEB & DESIGN ® endeavors to provide the hosting services to its customers with an availability of 99% per calendar year. This does not include

      • times of unavailability due to internet disruptions beyond alkima WEB & DESIGN ®'s control or other circumstances beyond alkima WEB & DESIGN ®'s control, in particular force majeure;

      • Periods of unavailability due to scheduled maintenance work on the database system, which is carried out regularly;

      • times due to mandatory unscheduled maintenance work required to eliminate malfunctions; the customer will be informed of this by means of a notice on the website if possible;

      • times of unavailability, which are based on the fact that the technical prerequisites to be provided by the customer for the use of the services are not given.

7. Dates, deadlines and performance barriers

   1. Dates and deadlines for the provision of services or partial services are only binding if they are expressly specified in the contract documents or are subsequently confirmed in text form by a managing director or authorized signatory of alkima WEB & DESIGN ®.

   2. If the cooperation of the customer is necessary for the provision of services or partial services by alkima WEB & DESIGN ®, binding deadlines or dates are extended by the time that the customer has not fulfilled this obligation despite being requested to do so.

   3. In case of delays as a result of requirements for the services to be provided by alkima WEB & DESIGN ® after the conclusion of the contract, in the case of insufficient requirements from the customer (e.g. hardware or software deficits), in the case of problems for which alkima WEB & DESIGN ® is not responsible with products or services of third parties necessary for the provision of the contractual services , as well as other delays for which alkima WEB & DESIGN ® is not responsible, in particular in the event of force majeure, natural disasters, conflicting sovereign measures, non-issuance of official permits, labor disputes, sabotage and unforeseeable lack of raw materials, binding deadlines and dates for the provision of the services or partial services are extended accordingly.

   4. alkima WEB & DESIGN ® does not guarantee any response times. However, alkima WEB & DESIGN ® endeavors to answer the customer's questions and problems as quickly as possible or to resolve them directly.

8. Legal consequences in case of defect

   1. In case of disfunction, the subsequent performance will be carried out at alkima WEB & DESIGN ®’s choice.

   2. alkima WEB & DESIGN ® can refuse supplementary performance as long as the customer has not yet paid the remuneration owed for the construction services in full and the customer has no legitimate interest in withholding the remuneration in arrears.

   3. alkima WEB & DESIGN ® is not liable in cases in which the customer has made changes to the services provided by alkima WEB & DESIGN ®, unless these changes did not affect the origin of the defect.

   4. The customer will support alkima WEB & DESIGN ® in identifying and remedying defects and immediately grant access to the information from which the more detailed circumstances of the occurrence of the defect arise.

   5. If an alleged defect cannot be assigned to a warranty obligation of alkima WEB & DESIGN ® after a corresponding examination and the customer could have recognized this, alkima WEB & DESIGN ® can request the customer to reimburse and reimburse the expenses incurred for verification and troubleshooting.

   6. The warranty period is twelve months, starting with the overall acceptance of the work by the customer. This does not apply to claims for damages due to injury to life, limb or health and to claims for damages in the event of willful intent or gross negligence or if alkima WEB & DESIGN ® has fraudulently concealed the defect.

9. Employee protection and non-solicitation agreement

   1. The customer undertakes not to poach employees of alkima WEB & DESIGN ® or third parties employed by it, either directly or indirectly, and to establish direct contractual relationships with them. The above non-solicitation clause applies upon conclusion of the contract and continues for a period of one year from the end of the contractual relationship.

   2. If the customer breaches this obligation, he will pay a contractual penalty of EUR 25,000.00 in each case of breach. The right to claim damages and / or injunctive relief remains unaffected. The contractual penalty will be offset against any claim for damages.

10. Liability

    1. The liability of alkima WEB & DESIGN ® is based on the legal regulations unless deviations are caused by the following regulations.

    2. alkima WEB & DESIGN ® shall only be liable in the case of intent and gross negligence. This shall also apply to the intentional or grossly negligent conduct of the Seller's representatives and/or vicarious agents. This limitation of liability shall not apply in cases of breach of material contractual obligations or cases of injury to life, body or health, and the mandatory liability.

    3. The liability for damages is limited to the foreseeable, typically occurring damage.

    4. Unless otherwise regulated above, liability shall be excluded. This applies in particular to damages based on causes that are not within alkima WEB & DESIGN ®'s sphere of responsibility, such as force majeure, strikes, official measures, failure of transmission means, or other disturbances.

    5. The period of limitation is 12 months, calculated from the date of conclusion of the contract.

11. Confidentiality and data protection

    1. Data processing is carried out in accordance with the applicable the EU Data Protection Basic Regulation (GDPR).

    2. alkima WEB & DESIGN ® considers the proper processing of personal data to be very important. The privacy policy can be viewed at https://www.alkima.org/privacy-policy.

    3. You can find the applicable Data processing agreement under https://www.alkima.org/dpa.

12. Miscellaneous, Place of jurisdiction, Applicable law

    1. Should any of the above provisions be invalid, the validity of the contract concluded shall not be affected. The parties shall close a gap in the provision that has arisen due to invalidity by means of a joint agreement that comes as close as possible to the invalid provision in economic and legal terms.

    2. If the customer is a merchant, a legal entity under public law or a special fund under public law, alkima WEB & DESIGN ®'s registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

    3. The place of performance is also the registered office of alkima WEB & DESIGN ® and the contract language is English.

    4. Malta law shall apply to the conclusion and execution of all contracts. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Last updated: 2020-12-15

Other information

• Imprint

• Privacy policy

• Contract according to Article 28 GDPR

• Software maintenance agreement

• “alkima MAIL” extended Terms and Conditions