General terms and conditions
§ 1 General information
These General Terms and Conditions apply to all business relations between THIS GmbH and entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law. Corresponding orders shall be executed exclusively on the basis of the following conditions; other conditions shall not become part of the contract, even if we do not expressly object to them. To be effective, deviations require the express consent of THIS GmbH in writing by letter post or electronically by e-mail. § 305b BGB remains unaffected.
§ 2 Offer and placing of order
The offers of THIS GmbH are subject to confirmation and non-binding. The order confirmation must be in written form or by e-mail.
§ 3 Dates and delivery periods
Deadlines are only binding if they have been confirmed by THIS GmbH in writing or by e-mail. Confirmation shall be subject to the condition that the customer fulfils his obligations to cooperate in accordance with §5 of these General Terms and Conditions. In the event that this condition is not fulfilled, the deadlines must be agreed upon anew.
In the event of a change to the subject matter of the order, in particular the scope of the order, the previous deadlines shall lose their validity. In this case, the parties agree on new deadlines and delivery dates without delay.
If THIS GmbH is unable to meet a deadline for reasons for which it is not responsible, the agreed deadline for completion shall be extended by a reasonable period of time. In this case, THIS GmbH shall immediately inform the customer of the new possible completion date.
§ 4 Prices and terms of payment
Unless otherwise stated, all prices are net prices excl. applicable statutory value added tax. The scope of the individual services as well as the remuneration owed shall be based on the THIS GmbH service description provided with the offer and the THIS GmbH price lists valid at the time the order is placed.
Any additional expenditure over and above the description of the offer, in particular due to subsequent changes and additions requested by the Customer, shall be charged as additional expenditure in accordance with the agreed daily rates or as a substitute for the price lists of THIS GmbH valid at the time the order is placed.
Upon conclusion of the contract, THIS GmbH shall in any case be entitled to an advance payment in the amount of 40% of the agreed total remuneration. The remaining payment is due upon acceptance of the services by the customer. In the case of agreed partial services, the proportionate payment shall be due after acceptance of the partial service.
In the case of projects with a duration of more than one month, partial performance is deemed to have been agreed. THIS GmbH invoices the rendered partial services on a monthly basis and issues partial invoices for these. The invoice amounts shall initially be set off against the advance payment made upon conclusion of the contract.
The client must check the services immediately after they have been made available. The customer shall be obliged to accept the work provided that it meets the contractual requirements. The services shall be deemed accepted if the client does not object to the contractual performance within 10 working days of handing over all data relevant to the contract to the client. In the case of partial services, the complaint period shall commence upon delivery of the respective partial service or, in the case of projects with a term of more than one month, upon invoicing of the partial service rendered in this month.
Unless otherwise agreed, all invoices issued by THIS GmbH are payable 10 days after invoicing without deduction. If the payment deadlines are exceeded, the customer shall be in default even without a reminder. In the event of default in payment, default interest at the statutory rate (currently 9 percentage points above the base rate) shall be payable. This does not exclude the assertion of further damage caused by default.
The customer may only offset or exercise a right of retention with an undisputed or legally established claim. This shall not apply to any claims of the Customer directed to costs of completion or removal of defects.
§ 5 Duties of the client to cooperate
The client undertakes to actively support the activities of THIS GmbH. In particular, the customer shall provide free of charge all prerequisites necessary for the proper execution of the order. This includes, but is not limited to, that the customer
- names a contact person who will be available to THIS GmbH employees as a contact person during the agreed project period. The contact person is authorized to make declarations which are necessary as an interim decision or release within the framework of the continuation of the order.
- provides the employees of THIS GmbH with access to the information necessary for their work at any time and provides them with all necessary information in good time.
- provides feedback in written and consolidated form within the agreed project planning on the work results to be delivered by THIS GmbH.
- provides THIS GmbH with all data, content and media required for the fulfilment of the order in a timely manner.
§ 6 opyright and rights of use / contractual penalty
- Drafts, concepts and all other works (Internet pages and their components, graphics, presentations etc.) created by THIS GmbH may not be changed neither in the original nor in reproduction without their express consent. Any complete or partial imitation is prohibited. In the event of a violation against this, the customer shall pay THIS GmbH a contractual penalty of 200% of the agreed remuneration.
- The copyright for published drafts, concepts and other works created by THIS GmbH (Internet pages and their components, graphics, presentations etc.) remains solely with THIS GmbH. It transfers to the client only the rights of use required for the respective purpose, but no ownership rights. Unless otherwise agreed in writing, only the simple right of use shall be transferred.
- Unless otherwise agreed in writing, the client shall only receive the rights of use for all drafts, concepts and other works (Internet pages and their components, graphics, presentations, etc.) once the agreed remuneration has been paid in full.
- Even if the client has been granted the right of use, THIS GmbH remains entitled in any case to use all drafts, concepts and other works (Internet pages and their components, graphics, presentations, etc.) within the scope of self-promotion. Any transfer of the rights of use to third parties by the customer requires a written agreement between THIS GmbH and the customer.
- THIS GmbH has the right to be named as the author on all copies (hard and soft copies). If the client violates the right to mention the name, he is obliged to pay THIS GmbH a contractual penalty amounting to 100% of the agreed remuneration. This shall not affect THIS GmbH's right to claim higher damages in the event of a concrete calculation of damages.
- The ideas, concepts and drafts created by THIS GmbH for coordination purposes may only be used by the client for the purpose of viewing and checking the intermediate results. The use on the homepage of the client, making available to third parties or similar purposes such as the further processing of a draft for own presentations is expressly prohibited. If the ideas, concepts and drafts are nevertheless used without the Client acquiring a right of use, THIS GmbH shall be entitled to a contractual penalty amounting to twice the offer price or the agreed remuneration. This shall not affect THIS GmbH's right to claim higher damages in the event of a concrete calculation of damages.
§ 7 Third-party rights
- Should THIS GmbH in individual cases have taken graphics or fonts from royalty-free graphic collections or design collections, it cannot be excluded that individual design components used for an order by THIS GmbH may also be used by other users of these collections. No claims can be made against THIS GmbH from this. In addition, THIS GmbH expressly reserves the right to multiple use, provided that the license terms permit this.
- If the client uses "exclusive" material, i.e. such material is neither used in another project of THIS GmbH nor available in license-free collections, the necessary costs, in particular license fees, the creation and procurement costs are to be paid separately by the client. Despite careful examination, THIS GmbH does not guarantee that the material used is or was used by third parties in the same or similar form. The client may, in agreement with THIS GmbH, provide the desired exclusive material himself. In this case he guarantees that he possesses all necessary rights to the supplied material.
§ 8 Publications
For advertising purposes, THIS GmbH may publish selected customers - as reference customers - and projects - as reference projects - on its Internet pages, unless the client expressly forbids this in writing within one month of acceptance.
§ 9 Warranty
If the customer is a merchant or a legal entity, he shall only be entitled to warranty rights if he has duly complied with his inspection and complaint obligations owed in accordance with § 377 HGB (German Commercial Code).
Deviations in presentation or implementation from the concept and drafts, which are based on technical conditions and different standards, do not constitute a defect.
In principle, the client may initially only demand subsequent improvements. Only if two subsequent improvements have failed can further warranty rights be asserted.
If it turns out that a problem reported by the customer as a defect does not in fact trigger a warranty claim, THIS GmbH shall be entitled to charge for the expenses incurred in the analysis and other processing, provided that the customer is guilty of intent or gross negligence when reporting this defect.
§ 10 Limitation of liability
THIS GmbH shall have unlimited liability if the damage is due to intent or gross negligence or in the event of injury to life or limb. In all other cases, the liability of THIS GmbH shall be limited to the foreseeable extent of the damage.
THIS GmbH does not check whether the registered contents or the pages of the client violate the rights of third parties. The client is solely responsible for the permissibility and freedom from rights of third parties of the terms and contents of his pages registered by him, in particular with regard to copyright, competition law and criminal law.
The customer shall indemnify THIS GmbH against all claims of third parties arising from the fact that the customer uses terms or contents that are inadmissible or encumbered with the rights of third parties.
§ 11 Third-party services
THIS GmbH is entitled to transfer the external services necessary for the fulfilment of the order to third parties. Insofar as contracts for external services are concluded with third parties in individual cases, the customer shall be obliged to indemnify THIS GmbH internally from all liabilities arising from the conclusion of the contract with the third party upon first request, in particular from the obligation to pay the price for the external services.
§ 12 Data Protection and Confidentiality
THIS GmbH undertakes to comply with data protection regulations, in particular to keep confidential data secret and to protect it from access by third parties. It undertakes to make data accessible to third parties only after express or tacit release by the client.
Employees of THIS GmbH and subcontractors, including its employees, are not third parties within the meaning of this provision.
THIS GmbH undertakes to obligate its employees to maintain secrecy in accordance with the first paragraph.
§ 13 Final provisions
The invalidity of individual conditions does not affect the validity of the remaining conditions. The condition complained of shall be replaced by a condition that comes as close as possible to the economic purpose of the original condition.
The place of jurisdiction for all disputes between the customer, who is a merchant, and THIS GmbH is Düsseldorf. Unless otherwise agreed, the place of performance shall be Düsseldorf.
With regard to all legal relationships arising from contractual relationships, the parties agree to apply the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
All agreements must be made in writing or in electronic form. This also applies to the agreement on the requirement of written form or the requirement of electronic form itself. Verbal ancillary agreements do not exist.