TERMS AND CONDITIONS – CUSTOM SOFTWARE DEVELOPMENT, DIGITAL PRODUCTS, HOSTING & RELATED SERVICES (GERMAN LAW)

Last updated: 17 February 2026

1. SCOPE; DEFINITIONS

1.1 These Terms and Conditions (“Terms”) govern all contracts between the Provider and the customer (“Client”) regarding:

• (a) planning, design, development and delivery of custom software and digital solutions (incl. websites, web apps, mobile apps, automation, integrations, APIs, scripts, documentation) (“Development Services”);
• (b) deployment, operation and hosting of software and related infrastructure services (“Hosting Services”);
• (c) support and maintenance services (“Support Services”);
• (d) consulting services (incl. fractional CTO services) (“Consulting Services”); and
• (e) all work results, documentation and materials agreed in a Statement of Work (“Deliverables”).

1.2 “Consumer” means a natural person entering into the contract for purposes predominantly outside their trade, business or profession. “Business Client” means an entrepreneur within the meaning of § 14 BGB, a legal entity under public law, or a special fund under public law.

1.3 “SOW” means any offer/proposal, statement of work, order confirmation, service description, or similar document confirmed by both parties in text form (e.g., email) or signed, defining scope, schedule, milestones, deliverables, prices, and any special terms.

1.4 In case of conflict, the SOW prevails over these Terms.

1.5 The Client’s terms and conditions do not apply unless the Provider expressly agrees to them in text form.

1.6 “Text form” means at least email or other readable electronic format.

2. CONTRACT FORMATION; COMMUNICATION

2.1 Offers are non-binding unless expressly designated as binding.

2.2 A contract is concluded when the Provider confirms the Client’s order in text form or when both parties sign/confirm an SOW.

2.3 Legally relevant declarations may be made in text form unless mandatory law requires stricter form.

3. CONTRACT TYPES (LEGAL CLASSIFICATION)

3.1 Development Services are generally provided as a contract for work (Werkvertrag) with an acceptance process, unless the SOW expressly defines them as services without a specific owed result.

3.2 Consulting Services are generally provided as services (Dienstvertrag) without a guaranteed specific result unless expressly agreed.

3.3 Hosting Services and Support Services are generally continuing obligations for the agreed term.

4. CLIENT COOPERATION DUTIES

4.1 The Client shall provide timely and complete access to required information, systems, accounts, credentials, approvals and personnel; designate a competent contact person; and provide feedback/decisions without undue delay.

4.2 If the Client fails to cooperate and this causes delays or additional effort, timelines shall be extended accordingly and additional effort may be billed at the agreed rates.

4.3 The Client is responsible for the legality and suitability of its instructions and content and for obtaining any necessary third-party consents (e.g., IP rights, licenses, data protection consents, platform terms).

5. SCOPE; CHANGE REQUESTS; THIRD-PARTY DEPENDENCIES

5.1 Scope, milestones, deliverables, schedule and remuneration are defined in the SOW.

5.2 Any material change of scope, requirements, priorities, timeline, or assumptions requires a change request confirmed in text form (“Change Request”). If a Change Request affects effort or schedule, the parties will agree adjusted fees and deadlines before implementation.

5.3 Where performance depends on third-party services (e.g., hosting providers, app stores, APIs, payment providers), the Provider does not guarantee third-party performance, availability, approvals or uninterrupted operation.

6. DELIVERY; HANDOVER; ACCESS

6.1 Delivery may occur by: (a) granting repository access; (b) providing source code and build artifacts; (c) deploying to agreed infrastructure; (d) handing over documentation, credentials and configuration information as agreed.

6.2 Unless otherwise agreed, the Provider may withhold final handover items until settlement of all due and undisputed invoices.

6.3 If administrative access is transferred, the Client shall promptly secure access (password change, MFA, key rotation) after handover.

7. ACCEPTANCE (APPLIES TO DEVELOPMENT SERVICES AS WORK RESULTS)

7.1 If Development Services qualify as a work contract, acceptance (Abnahme) is required unless the SOW provides otherwise.

7.2 The Provider will notify the Client in text form that a Deliverable (or milestone) is ready for acceptance testing and will provide reasonable information needed for testing.

7.3 The Client shall test within 10 business days (“Acceptance Period”) and either: (a) declare acceptance in text form; or (b) provide a written list of material defects preventing acceptance.

7.4 Minor defects that do not materially impair the contractually agreed use do not prevent acceptance and will be remedied within a reasonable time.

7.5 Acceptance fiction (where legally permissible): If the Provider has (i) set the Client a reasonable deadline for acceptance after completion, and (ii) expressly informed the Client in text form that acceptance will be deemed granted if the Client does not declare acceptance or report material defects within that deadline, acceptance is deemed granted to the extent permitted by § 640 BGB.

7.6 Productive use: If the Client productively uses the Deliverable in production (beyond mere testing) without reporting material defects within the Acceptance Period, acceptance may be deemed granted to the extent legally permissible.

7.7 If the Client reports material defects, the Provider will remedy them within a reasonable time and then re-submit the Deliverable for acceptance.

8. HOSTING SERVICES (OPTIONAL; BEST-EFFORT; NO SLA; NO CREDITS)

8.1 Hosting Services are provided only if expressly agreed in an SOW. The SOW defines environment, responsibilities, monitoring (if any), backup scope (if any), and included services.

8.2 Best-effort operation: Unless expressly agreed otherwise in the SOW, Hosting Services are provided on a best-effort basis. The Provider does not guarantee specific availability, uptime, latency, response times, or uninterrupted operation, and does not grant service credits.

8.3 Maintenance: The Provider may perform maintenance, updates and security patches. Where practicable, the Provider will give reasonable advance notice in text form for planned maintenance.

8.4 Client responsibilities: Unless the SOW allocates tasks to the Provider, the Client is responsible for lawful content, end-user permissions, user administration, and proper handling of credentials.

8.5 Backups: Backups are provided only if agreed in the SOW, which defines scope and retention. Backups do not replace the Client’s own backup responsibilities for Client-controlled data/content and do not guarantee complete restoration.

8.6 Consumer digital products (mandatory law): If the Client is a Consumer and the Hosting Services constitute the provision of a “digital product” (digital content or digital service) within the meaning of §§ 327 ff. BGB, the mandatory consumer rights and obligations under §§ 327 ff. BGB remain unaffected, including statutory requirements on contractual conformity, security/functional updates and information duties, and rules on changes during ongoing provision.

9. SUPPORT AND MAINTENANCE (BEST-EFFORT; NO SLA)

9.1 Support Services are provided only to the extent described in the SOW or in a written support policy referenced by the SOW. Channels, hours, and scope may be defined there.

9.2 Free basic support (default): Unless the SOW states otherwise, the Provider may provide basic support at no additional charge, limited to: (a) receiving defect reports; and (b) reasonable assistance in diagnosing issues related to Provider-delivered Deliverables. The Provider may reasonably prioritize requests and does not guarantee any response or resolution times unless expressly agreed.

9.3 What is not included for free: Unless expressly included in the SOW, the following are not included in free support and will be billed under the agreed rates after prior transparent quotation in text form: new features, enhancements, redesigns, migrations, performance projects, content work, major refactoring, adapting to changed third-party APIs/platform rules, or changes in scope after acceptance.

9.4 Bugfix definition (default): “Bugfixing” means remedying reproducible deviations from the specification agreed at acceptance (or, if no specification exists, from the agreed intended use) that are attributable to the Provider’s Deliverable.

9.5 Supported versions: The Provider may limit support to currently supported versions as defined in the SOW/support policy.

9.6 Consumer digital products (mandatory law): If the Client is a Consumer and the contract qualifies as a consumer contract for digital products under §§ 327 ff. BGB, statutory consumer rights (including update obligations where applicable) remain unaffected.

10. FEES, INVOICING, PAYMENT, DEFAULT

10.1 Fees and billing rules are specified in the SOW. Unless stated otherwise, prices are net plus statutory VAT (if applicable).

10.2 Invoices are payable within 30 days of the invoice date unless otherwise agreed.

10.3 Default interest: Statutory default interest applies. For Business Clients, default interest for payment claims is nine percentage points above the base interest rate pursuant to § 288(2) BGB.

10.4 Suspension for non-payment: For Hosting and/or Support Services, the Provider may suspend performance after reasonable notice if the Client is in material payment default, unless suspension would be unreasonable under the circumstances.

11. INTELLECTUAL PROPERTY; RIGHTS OF USE

11.1 Pre-existing IP: Each party retains ownership of its pre-existing intellectual property, know-how, tools, templates, frameworks and reusable components.

11.2 Client-specific Deliverables: Upon full payment of all due and undisputed fees, the Client receives the rights necessary for the contractually intended use of the Deliverables as defined in the SOW (scope, territory, duration, type of use).

11.3 Provider components: The Provider retains all rights to reusable libraries, generic modules, templates and tools. The Client receives a non-exclusive right to use such components only as embedded in the Deliverables for the intended purpose, unless otherwise agreed.

11.4 Open-source/third-party: If Deliverables include open-source or third-party software, their license terms apply and may impose obligations. The Client shall comply with such license terms.

11.5 Branding: Unless expressly agreed, no rights are granted to Provider trademarks, trade names or branding.

12. CLIENT MATERIALS; COMPLIANCE; INDEMNITY

12.1 The Client warrants it has all rights and permissions necessary to provide content, data, designs and materials and to use them in the project.

12.2 The Client shall ensure that instructions, content and use of Deliverables comply with applicable law (incl. consumer law, IP, data protection, competition law, platform rules).

12.3 The Client shall indemnify the Provider against third-party claims arising from Client-provided content, Client instructions or the Client’s unlawful use, unless the Provider is responsible under mandatory law.

13. CONFIDENTIALITY

13.1 Each party shall keep confidential all non-public information received from the other party (“Confidential Information”) and use it solely for performance of the contract.

13.2 Confidentiality does not apply to information that is publicly available without breach, lawfully known prior to disclosure, independently developed, or required to be disclosed by law or court order (to the extent permitted, with prior notice where possible).

13.3 The confidentiality obligation survives termination for three years; trade secrets remain protected as long as they qualify as trade secrets under applicable law.

14. DATA PROTECTION (GDPR)

14.1 Each party shall comply with applicable data protection laws, including the GDPR.

14.2 If the Provider processes personal data on behalf of the Client as a processor, the parties shall enter into a data processing agreement compliant with Art. 28 GDPR before processing begins.

14.3 Unless otherwise agreed, the Client is the controller and remains responsible for legal basis, transparency obligations and handling of data subject requests.

15. DEFECTS; WARRANTY; CONSUMER DIGITAL-PRODUCT RIGHTS

15.1 Work results (Development Services as Werkvertrag): Statutory defect rights apply. The Provider shall have the right to cure defects first within a reasonable time.

15.2 The Client shall report defects in text form and provide sufficient information to reproduce and analyze the issue.

15.3 No warranty applies to defects caused by Client misuse, unauthorized modifications, use contrary to documentation, third-party systems/services not provided by the Provider, or missing cooperation by the Client.

15.4 Consumers – digital products: If the Client is a Consumer and the contract qualifies as a consumer contract for digital products within §§ 327 ff. BGB, statutory rights regarding contractual conformity, remedies, updates and related duties apply and cannot be limited by these Terms.

16. LIABILITY

16.1 Unlimited liability: The Provider is liable without limitation for intent and gross negligence and for damages resulting from injury to life, body or health.

16.2 Slight negligence; cardinal duties: In cases of slight negligence, the Provider is liable only for breach of an essential contractual obligation (cardinal duty). In such cases, liability is limited to foreseeable damages typical for this type of contract.

16.3 Indirect/consequential damages: Subject to Clause 16.1 and 16.2, the Provider is not liable for indirect or consequential damages, in particular lost profit, loss of goodwill, or business interruption, unless such damages are typical and foreseeable within Clause 16.2.

16.4 Data loss: Subject to Clause 16.1, liability for data loss is limited to the typical restoration effort that would have been required if the Client had performed regular and adequate backups appropriate to the risk.

16.5 Liability cap for Business Clients only: Subject to Clause 16.1, the Provider’s total liability towards a Business Client for all claims arising from the contractual relationship is limited to the net fees paid by the Business Client for the specific SOW in the 6 months preceding the event giving rise to the claim. This does not apply to liability under Clause 16.1. (This clause does not apply to Consumers.)

16.6 Mandatory consumer protections: For Consumers, liability limitations apply only to the extent permitted by mandatory law (in particular the statutory AGB controls and prohibitions).

17. TERM; TERMINATION

17.1 The term of project-based Development Services is defined in the SOW.

17.2 Hosting and Support Services run for the term agreed in the SOW. If the SOW does not specify termination rules, either party may terminate Hosting and/or Support Services with 30 days’ notice to the end of the current billing period.

17.3 Termination for cause remains unaffected.

17.4 Upon termination, the Client shall pay for services performed up to the effective termination date and any non-cancellable third-party costs that were agreed in advance.

17.5 Exit assistance (optional): Upon request and subject to additional fees, the Provider may assist with migration/hand-over. Details and pricing are agreed in text form.

18. REFERENCES; PUBLICITY

18.1 The Provider may use the Client’s name, logo, and a general description of the project as a reference only with the Client’s prior consent in text form.

19. GOVERNING LAW; JURISDICTION

19.1 German law applies, excluding conflict-of-law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

19.2 For Business Clients, the exclusive place of jurisdiction for all disputes arising from the contract is Augsburg, Germany, to the extent legally permissible.

19.3 For Consumers, statutory rules on jurisdiction apply.

20. CONSUMER INFORMATION (B2C) – RIGHT OF WITHDRAWAL

This Section 20 applies only if the Client is a Consumer and the contract is concluded as a distance contract or off-premises contract where a statutory right of withdrawal exists.

20.1 Right of withdrawal

You have the right to withdraw from this contract within 14 days without giving any reason.

The withdrawal period will expire after 14 days from the day of the conclusion of the contract.

To exercise the right of withdrawal, you must inform us (Moon Software Solutions by Jakob Greisert, Gundelfingerweg 14, 86156 Augsburg, Germany, [email protected]) of your decision to withdraw from this contract by an unequivocal statement (e.g., an email or a letter sent by post). You may use the model withdrawal form below, but it is not obligatory.

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.

20.2 Effects of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw.

20.3 Payment for services provided during the withdrawal period

If you request that we begin performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated your withdrawal from this contract, in comparison with the full coverage of the contract.

20.4 Expiry of withdrawal right in case of complete performance / special rules

If the contract is a service contract, your right of withdrawal may expire if we have fully performed the service and you have expressly agreed prior to performance that we begin performance before the end of the withdrawal period, and you have acknowledged that you lose your right of withdrawal upon complete performance, to the extent provided by law (see e.g. § 356 BGB).

20.5 Model withdrawal form

(Complete and return this form only if you wish to withdraw from the contract)

21. CONSUMER DISPUTE RESOLUTION INFORMATION

The Provider is not obliged and does not agree to participate in dispute resolution proceedings before a consumer arbitration board. (Information duties remain unaffected, in particular § 36 VSBG where applicable.)

22. FORCE MAJEURE

22.1 Neither party shall be liable for delays or non-performance caused by events beyond its reasonable control (including force majeure, strikes, war, pandemics/pandemic measures, governmental actions, and major third-party outages). Performance obligations are suspended for the duration of such event and shall resume as soon as reasonably possible.

23. SEVERABILITY; ENTIRE AGREEMENT

23.1 If any provision of these Terms is invalid or unenforceable, the remainder remains effective. The parties shall replace the invalid provision with a valid provision that best reflects the economic intent.

23.2 The SOW, these Terms, and any annexes referenced therein constitute the entire agreement regarding the subject matter.