Terms of Service

These Terms of Service ("Terms") govern the use of the website molisera.com (the "Website") and all contracts for services of the software agency Molisera, operated by:

Henri Matteo Mache, Dorothea-Erxleben-Straße 56, 23562 Lübeck, Germany, email: hello@molisera.com (the "Provider", "we", "us").

By engaging our services or otherwise using the Website, you (the "Customer", "you") agree to these Terms. Conflicting or supplementary terms of the Customer are hereby rejected unless the Provider expressly agrees to them in writing.

• "Services" means the agency services offered by the Provider, in particular product strategy, design, and software development and engineering, including conception, design, implementation, and consulting.
• "Work Results" means the results created for the Customer in the course of the Services, such as source code, designs, concepts, and documentation.
• "Project Agreement" means the Provider's individual offer, including the services, remuneration, and deadlines described in it.
• "Customer" means any natural or legal person who enters into a contract for Services with the Provider.
• "Consumer" means a natural person who enters into the contract for purposes that are predominantly outside their trade, business, or profession (Section 13 German Civil Code, BGB).
• "Entrepreneur" means a natural or legal person or a partnership with legal capacity who, when entering into the contract, acts in the exercise of their trade, business, or profession (Section 14 BGB).

The presentation of the Services on the Website constitutes a non-binding invitation to treat (invitatio ad offerendum). Contracts are formed by an individual offer of the Provider (Project Agreement) and its acceptance by the Customer in text form (email is sufficient), or by an engagement by the Customer that the Provider confirms in text form.

The Customer must be at least 18 years old. The Customer warrants that all information provided in the course of the engagement is correct, complete, and current, and undertakes to notify the Provider of any changes without undue delay.

The nature and scope of the Services follow from the respective Project Agreement. Dates and deadlines are binding only if they have been expressly agreed as binding.

The Provider may use third-party services (e.g. hosting, cloud, and API providers) to provide the Services, where agreed or necessary for performance. The Provider gives no warranty for the continued availability, compatibility, or pricing of such third-party services; liability is governed by Section 13.

No particular availability or uptime of the Website is guaranteed.

Withdrawal instructions

If you are a Consumer, you have the right to withdraw from this contract within fourteen (14) days without giving any reason. The withdrawal period is fourteen days from the day the contract is concluded.

To exercise the right of withdrawal, you must inform us, Henri Matteo Mache, Dorothea-Erxleben-Straße 56, 23562 Lübeck, Germany, email: hello@molisera.com, by means of a clear statement (e.g. a letter sent by post or an email) of your decision to withdraw from this contract. You may use the model withdrawal form below, but it is not mandatory.

To meet the withdrawal deadline, it is sufficient that you send your communication concerning the exercise of the right of withdrawal before the withdrawal period has expired.

Consequences of withdrawal

If you withdraw from this contract, we shall reimburse all payments received from you without undue delay and no later than fourteen days from the day on which we receive notification of your withdrawal. We will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees for this reimbursement.

If you requested that the service begin during the withdrawal period, you must pay us a reasonable amount corresponding to the proportion of the services already provided up to the time you notify us of the exercise of the right of withdrawal, compared to the full scope of the services provided for in the contract (Section 357(8) BGB).

Early expiry of the right of withdrawal

The right of withdrawal expires early where the Provider has begun performance of the contract and the Customer, before performance begins, has:

• expressly consented to the Provider beginning performance of the contract before the withdrawal period expires; and
• acknowledged that, by giving such consent, they lose their right of withdrawal upon commencement of performance.

This consent is obtained expressly in text form before performance begins (Section 356(4) and (5) BGB).

Model withdrawal form

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

• To: Henri Matteo Mache, Dorothea-Erxleben-Straße 56, 23562 Lübeck, Germany, email: hello@molisera.com
• I/we (*) hereby withdraw from the contract concluded by me/us (*) for the provision of the following service: ___
• Ordered on (*) / received on (*): ___
• Name of consumer(s): ___
• Address of consumer(s): ___
• Signature of consumer(s) (only if this form is notified on paper): ___
• Date: ___

(*) Delete as appropriate.

Remuneration follows from the respective Project Agreement. Unless stated otherwise, all prices are exclusive of applicable statutory value-added tax.

Unless otherwise agreed, invoices are payable within 14 days of receipt without deduction. The Provider may require reasonable advance or instalment payments where agreed.

In the event of late payment, the Provider is entitled to charge default interest at the statutory rate pursuant to Section 288 BGB (currently 5 percentage points above the base rate for Consumers, 9 percentage points above the base rate for Entrepreneurs).

Project contracts end upon complete performance of the agreed Services. Continuing obligations (e.g. support or maintenance agreements) may, unless otherwise agreed, be terminated by either party with 30 days' notice to the end of a calendar month. Notice may be given in text form (email is sufficient) to hello@molisera.com.

Either party may terminate the contract for cause without notice if the other party materially breaches these Terms or the Project Agreement and fails to cure the breach within 14 days of receiving a written warning (Section 314 BGB).

Upon termination of the contract, services already rendered are remunerated proportionately. Handover of Work Results is governed by the Project Agreement and Section 9.

The Customer undertakes:

• to provide the content, materials, information, access, and approvals required for performance of the Services in a timely and complete manner;
• to ensure that the content and materials they provide do not infringe third-party rights and do not violate applicable law;
• to review interim results within a reasonable period and not to unreasonably delay required decisions and approvals;
• not to use the Website or the Services for unlawful purposes and not to gain unauthorized access to systems of the Provider or third parties.

If the Customer's cooperation is delayed, agreed deadlines are extended by a reasonable period; additional effort caused by the delay may be charged after prior notice.

The scope of the usage rights granted to the Customer in the Work Results follows from the respective Project Agreement. Where no provision is made there, the Customer receives, upon full payment of the remuneration, the exclusive right, unlimited in time and territory, to use the Work Results created for them for the purposes contemplated by the contract.

The Provider retains the rights to pre-existing tools, libraries, templates, reusable components, and its know-how. The Customer receives a simple, non-transferable right to use these to the extent necessary for the use of the Work Results.

The Provider may name the Customer and the project as a reference (e.g. on this Website) unless the Customer objects in text form. The Website, including its design, code, and branding, is the intellectual property of the Provider and protected by applicable copyright and trademark law.

The Provider processes personal data in accordance with the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). Details on the nature, scope, and purpose of data processing are set out in the Privacy Policy.

Where the Provider processes personal data on behalf of the Customer in the course of a project, the parties will enter into a data-processing agreement pursuant to Art. 28 GDPR.

The Provider is entitled to use subcontractors and third-party services to provide the Services. The Provider remains responsible for performance. Where personal data is processed in the course of this, the provisions of the Privacy Policy apply.

The statutory warranty rights apply unless otherwise provided in these Terms or the Project Agreement. The Customer shall examine Work Results to a reasonable extent after handover and notify obvious defects without undue delay in text form. The Provider shall provide subsequent performance initially by rectification.

The Provider gives no warranty for outputs that are based on content, materials, or specifications provided by the Customer.

Consumer rights: The mandatory statutory warranty rights of Consumers, including Sections 327 et seq. BGB (contracts for digital products), remain unaffected.

The Provider's liability is limited as follows:

Unlimited liability: The Provider is liable without limitation for damage arising from intent or gross negligence, for injury to life, body, or health, and for claims under the German Product Liability Act.

Slight negligence: In the case of slight negligence, the Provider is liable only for breach of material contractual obligations (cardinal obligations, being obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the Customer may regularly rely). In such cases, liability is limited to the foreseeable damage typical of the contract.

Liability cap: Subject to the cases of unlimited liability, the Provider's total liability under these Terms is limited to the total amount of fees paid by the Customer to the Provider in the twelve (12) months immediately preceding the event giving rise to liability.

Excluded damages: To the extent permitted by law, the Provider is not liable for indirect, incidental, special, or consequential damages, including but not limited to lost profits, data loss, business interruption, or loss of goodwill.

Neither party is liable for delays or non-performance due to circumstances beyond its reasonable control, including but not limited to natural disasters, war, terrorism, pandemics, governmental measures, power outages, internet or telecommunications failures, cyberattacks, or failures of third-party services.

If a force-majeure event lasts longer than thirty (30) consecutive days, either party may terminate the contract by written notice to the other party without being liable for such termination.

The Customer shall indemnify the Provider against all third-party claims, losses, damages, costs, and expenses (including reasonable legal fees) arising out of or in connection with:

• content, materials, or specifications provided by the Customer that infringe third-party rights or violate applicable law;
• the Customer's use of the Work Results in breach of applicable law;
• the Customer's breach of these Terms or the rights of third parties.

The version of these Terms agreed at the time the contract is concluded applies to that contract. For continuing obligations, the Provider reserves the right to amend these Terms; the Customer will be informed of changes in text form at least 30 days before they take effect. Material changes (in particular those affecting the scope of services, prices, or the Customer's rights) require the Customer's express consent. If the Customer does not consent, either party may terminate the contract at the end of the notice period.

The European Commission provides a platform for online dispute resolution (ODR): https://ec.europa.eu/consumers/odr/

The Provider is neither willing nor obliged to participate in dispute-resolution proceedings before a consumer arbitration board within the meaning of the German Consumer Dispute Resolution Act (VSBG).

These Terms are governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

For Entrepreneurs, the exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms is Lübeck, Germany. For Consumers, the statutory rules on jurisdiction apply; in particular, Consumers may bring an action at their habitual place of residence.

Should any provision of these Terms be or become invalid, unenforceable, or void, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes closest to the economic purpose of the invalid provision. The same applies to any gaps in these Terms.