General Terms and Conditions
General Terms and Conditions
of
Vertanex e.U.
Sonnwiesen 3/3
9702 Ferndorf
– hereinafter: Contractor –
Part 1 – General Provisions
1.1 General
1.1.1 The Contractor offers the Customer various agency services. The specific scope of services is the subject of individual agreements between the Contractor and the Customer.
1.1.2 The Contractor does not conclude contracts with consumers or private individuals.
1.1.3 The Contractor is entitled, in its own name and for its own account, to award the necessary services to subcontractors, who in turn may also use subcontractors. Subject to any deviating agreements, the Contractor shall remain the sole contractual partner of the Customer. Subcontractors will not be used if it is apparent to the Contractor that their use conflicts with the legitimate interests of the Customer.
1.1.4 Insofar as, in addition to these General Terms and Conditions, further contractual documents in text or written form have become part of the contract, the provisions of these further contractual documents shall take precedence over the present General Terms and Conditions in the event of any inconsistency.
1.1.5 The Contractor does not recognize any terms and conditions that deviate from these General Terms and Conditions and are used by the Customer, unless the Contractor has expressly agreed to them.
1.2 Customer’s Duty to Cooperate
1.2.1 If the Customer provides the Contractor with texts, images or other content for the fulfillment of the services commissioned, the Customer must ensure that this content does not infringe the rights of third parties (e.g. copyrights, trademark rights, etc.) or other legal provisions. In this context, it is pointed out that the Contractor is not legally entitled to provide legal advisory services to the Customer. In particular, the Contractor is neither obliged nor legally in a position to examine the Customer’s business model and/or the works created or acquired by the Customer (layouts, graphics, texts, etc.) for their compatibility with applicable law. The Contractor will in particular not carry out trademark searches or other examinations for conflicts with intellectual property rights regarding the works provided by the Customer. Insofar as the Customer issues specific instructions regarding the work to be produced, the Customer shall be liable for these instructions itself.
1.2.2 The Customer is obliged to provide all information, data, works (e.g. data for the legal notice, graphics, logos, etc.) and access data required for the fulfillment of the order fully and correctly. The Customer must also ensure that the instructions it issues are in compliance with applicable law.
1.2.3 Unless otherwise agreed individually, the Customer is responsible for procuring the material required for the provision of the agency services (e.g. graphics, videos) and shall make this available to the Contractor in good time. If the Customer does not provide this material and also does not make any further specifications, the Contractor may, at its own discretion and in compliance with copyright attribution requirements, use image material from common providers (e.g. stock photo service providers) or provide the relevant parts of the website with a placeholder.
1.2.4 Insofar as the conclusion of a data processing agreement pursuant to Art. 28 GDPR is required for individual parts of the order, both contractual parties undertake to conclude such an agreement – to be provided by the Contractor – before the start of the service provision.
1.2.5 The Contractor is in no way responsible to the Customer for delays in the implementation of projects caused by late (necessary) cooperation or assistance by the Customer; the provisions under the heading “Liability/Indemnification” remain unaffected.
1.2.6 If the Customer fails to comply with its duty to cooperate under this section, the Contractor may charge the Customer for the additional work incurred as a result (e.g. costs for stock photos and the time required to search for them).
1.3 Use of Artificial Intelligence (AI)
1.3.1 The Contractor is entitled to use artificial intelligence technologies (AI tools) to create content (e.g. text, images, audio or video) as part of the provision of services. Unless otherwise agreed, all content generated by AI will be reviewed by a natural person after creation and adjusted if necessary. AI tools will not be used if it is apparent to the Contractor that their use conflicts with the legitimate interests of the Customer. If the Customer wishes AI technologies not to be used for certain projects or parts thereof, the Customer must notify the Contractor of this independently in text form.
1.3.2 The Contractor undertakes that content created wholly or partly using AI does not infringe the rights of third parties. If exclusive rights of use are to be transferred to content created wholly or partly using AI, the Contractor shall ensure that such a transfer of rights of use is possible (e.g. by adapting AI-generated works to such an extent that they achieve the required level of originality and thus copyright protection).
1.3.3 Separate labeling of AI-generated content is only required if and to the extent that labeling of the content is legally prescribed, or if at the time of service provision it is already foreseeable that a labeling obligation will be legally prescribed in the near future (e.g. due to regulations in the AI Act). The same applies to notices that certain work results were produced with the aid of artificial intelligence.
Part 2 – Online Presence and Technology
2.1 Website and Shop Creation (Agile)
2.1.1 Unless otherwise agreed individually, the creation of new websites/shops or the extension of existing websites/shops or web/shop components (hereinafter “website creation”) is carried out on the basis of agile methods. The other provisions of these General Terms and Conditions remain unaffected.
2.1.2 The subject of website creation contracts between the Contractor and the Customer is generally the development of new websites or the extension of existing websites (e.g. integrating new interfaces or programming new online applications), taking into account the Customer’s technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work and services within the meaning of Sections 631 et seq. of the German Civil Code (BGB).
2.1.3 The services agreed in detail result from the contract individually concluded between the Contractor and the Customer. For this purpose, the Customer first sends the Contractor an inquiry with a description that is as precise as possible of the desired website content (design content such as images, layouts, logos, fonts, etc. are to be defined and provided by the Customer, unless otherwise agreed). This inquiry constitutes a request to the Contractor to submit an offer. The Contractor will examine the Customer’s ideas described in the inquiry, to the best of its knowledge and belief, for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and lack of contradictions and will prepare an offer on the basis of the Customer’s wishes resulting from the inquiry. A contract between the Contractor and the Customer is only concluded when the Customer accepts this offer.
2.1.4 The Customer may submit requests for changes at any time, insofar as these are covered by the originally agreed scope of services. Such adjustments become part of the original contract if both contractual parties agree in text form (e.g. by email). Apart from this, the Contractor is only obliged to create the functions/positions listed in the contract or to provide the agreed service. Additional services must be agreed and remunerated separately.
2.1.5 As soon as the website has been completed, the Contractor will request the Customer to accept the website.
2.1.6 A prerequisite for the Contractor’s activity is that all data to be provided by the Customer and required for the implementation of the project (e.g. texts, templates, graphics, fonts) and/or system environments are made available to the Contractor in good time and in an appropriate form. The Contractor is in no way responsible to the Customer for delays in the implementation of projects caused by late (necessary) cooperation or assistance by the Customer.
2.1.7 The review or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) is only owed by the Contractor if this has been expressly agreed individually. Subject to deviating express individual agreements, there is no claim to the surrender of graphics, source codes, (development) documentation, manuals or other additional documentation.
2.1.8 Unless otherwise agreed, the websites created are optimized for the browsers Chrome, Safari, Firefox and Edge in their respective current versions (the last two versions of each browser). Search engine optimization (SEO) is only owed if it has been expressly agreed.
2.1.9 The Contractor is neither entitled nor obliged to advise the Customer on competition, consumer, labeling or other legal issues within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz). It is therefore the Customer’s responsibility to inform himself about the competition, consumer or labeling regulations applicable to his shop and, if necessary, to have the shop reviewed by a specialized lawyer.
2.1.10 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services with regard to the websites. However, the Contractor is not obliged to make such an offer, nor is the Customer obliged to use the Contractor’s additional services. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Customer alone is responsible for the technical maintenance and updating of the websites after acceptance. The Contractor is not liable to the Customer for any security vulnerabilities that are exploited for unlawful purposes (hacking) through the use of outdated third-party software.
2.2 Website and Shop Creation (Specification and Requirements Documents)
2.2.1 If the parties have agreed that the creation of new or the extension of existing websites/shops or web/shop components (hereinafter “website creation”) will be based on a specification sheet (“Lastenheft”) and a requirements specification (“Pflichtenheft”), the order will be processed in accordance with this section.
2.2.2 The subject of website creation contracts between the Contractor and the Customer is generally the development of new websites or the extension of existing websites (e.g. integrating new interfaces or programming new online applications), taking into account the Customer’s technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work and services within the meaning of Sections 631 et seq. BGB.
2.2.3 The scope of the services to be provided by the Contractor is determined primarily by the individual contractual agreements between the parties and, in addition, by a detailed specification sheet (“Lastenheft”) prepared by the Customer and the requirements specification (“Pflichtenheft”) based on it. The Contractor will examine the Customer’s ideas described in the specification sheet to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and lack of contradictions. If the Contractor recognizes that the specifications contained in the specification sheet are not suitable for creating a website, the Contractor will promptly inform the Customer and make a corresponding proposal for supplementing and/or adjusting the specification sheet. The Customer must comment on any proposals made by the Contractor regarding the specification sheet in writing or in text form within a reasonable period of time and finally confirm the content of the specification sheet to the Contractor in writing or in text form. If the parties agree on the specification sheet, its content becomes part of the contract.
2.2.4 On the basis of the specification sheet, the Contractor shall prepare a requirements specification that primarily describes the technical and/or design implementation of the specifications contained in the specification sheet. Once completed, the Contractor will present the requirements specification to the Customer for acceptance. The Customer is entitled to reject the requirements specification prepared by the Contractor and to communicate change or adjustment requests. The Contractor undertakes to submit a maximum of two alternative proposals, taking into account the Customer’s wishes. If the Customer ultimately does not agree with the Contractor’s final proposal, either the Customer or the Contractor may – insofar as legally permissible – extraordinarily terminate the contractual relationship or withdraw from the contract. In this case, the Customer must appropriately remunerate or reimburse the Contractor for the fees and/or expenses incurred in connection with the specification and/or requirements specification.
2.2.5 If the requirements specification is accepted by the Customer, the services described therein shall be deemed to have been finally agreed between the parties. Any deviation from the content of the requirements specification accepted by the Customer requires an express individual agreement between the parties. The Contractor does not provide any services beyond those described in the requirements specification accepted by the Customer. Likewise, the Contractor will generally not provide services below the level of the services described in the requirements specification accepted by the Customer. After acceptance of the requirements specification by the Customer, the Contractor shall develop and program the websites in compliance with the agreed specifications.
2.2.6 In addition to the requirements specification, the Contractor shall provide the Customer with a time and work schedule. The content and specifications of this time and work schedule become part of the contract unless the Customer objects without delay. The Contractor undertakes to deliver the completed website or parts thereof to the Customer by the end date specified in the time and work schedule on an appropriate data carrier and/or by email and/or to upload it to a server specified by the Customer. The details of the delivery or upload of the completed websites are otherwise the subject of individual contractual agreements between the parties.
2.2.7 A prerequisite for the Contractor’s activity is that all data to be provided by the Customer and required for the implementation of the project (e.g. texts, templates, graphics) and/or system environments are made available to the Contractor in good time and in an appropriate form. The Contractor is in no way responsible to the Customer for delays in the implementation of projects caused by late (necessary) cooperation or assistance by the Customer.
2.2.8 As soon as the website has been completed, the Contractor will request the Customer to accept the website. If necessary, a test phase can be agreed before acceptance. If the Customer discovers any errors before acceptance or during an agreed test phase, the Customer will notify the Contractor of these in writing or in text form. The Contractor will endeavor to correct the errors professionally. For this purpose, the Contractor may provide temporary workarounds.
2.2.9 The review or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) is only owed by the Contractor if this has been expressly agreed individually. Subject to deviating express individual agreements, there is no claim to the surrender of graphics, source codes, (development) documentation, manuals or other additional documentation.
2.2.10 Unless otherwise agreed, the websites created are optimized for the browsers Chrome, Safari, Firefox and Edge in their respective current versions (the last two versions of each browser). Search engine optimization (SEO) is only owed if it has been expressly agreed.
2.2.11 The Contractor is neither entitled nor obliged to advise the Customer on competition, consumer, labeling or other legal issues within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz). It is therefore the Customer’s responsibility to inform himself about the competition, consumer or labeling regulations applicable to his shop and, if necessary, to have the shop reviewed by a specialized lawyer.
2.2.12 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services with regard to the websites. However, the Contractor is not obliged to make such an offer, nor is the Customer obliged to use the Contractor’s additional services. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Customer alone is responsible for the technical maintenance and updating of the websites after acceptance. The Contractor is not liable to the Customer for any security vulnerabilities that are exploited for unlawful purposes (hacking) through the use of outdated third-party software.
2.3 Maintenance and Support of Websites / Shops
2.3.1 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services with regard to the websites (“maintenance contracts”). The Contractor may also offer maintenance of third-party websites. However, the Contractor is not obliged to make such an offer, nor is the Customer obliged to use the Contractor’s additional services. Corresponding agreements are exclusively the subject of individual arrangements.
2.3.2 The content of the maintenance contracts is the removal of functional faults and the event-related updating of the website for common web browsers in their then current versions. Additional services, such as regular maintenance, may be agreed individually.
2.3.3 The Contractor is not liable for functional faults and incompatibilities caused by unauthorized changes made by the Customer or based on other errors that do not lie within the Contractor’s area of responsibility; the provisions under “Liability/Indemnification” remain unaffected.
2.3.4 Unless otherwise agreed, maintenance only covers the technical, but not the content-related updating of the website. Subject to deviating individual agreements, the Contractor is in particular not obliged to update the legal notice (Impressum) or the privacy policy.
2.4 Web Hosting
2.4.1 The Contractor also offers the Customer hosting of the websites/shops created by the Contractor. To fulfill its services, the Contractor will use the servers of third-party companies. The Contractor will inform the Customer about the servers and third-party companies used before the conclusion of the contract. The specific scope of services (domain management, storage space, email hosting, certificates, etc.) is the subject of individual agreements between the parties.
2.4.2 The availability of the servers used by the Contractor for hosting purposes is at least 99 percent on an annual average. Excluded from this are periods during which the servers are unreachable due to events beyond the Contractor’s control (force majeure, actions of third parties, technical problems outside the Contractor’s sphere of influence, etc.).
2.4.3 It is the Customer’s responsibility to create regular backup copies of its hosted data. If the Customer is unable to do so, he must commission the Contractor or other professionally suitable third parties with the backup. The Customer is liable for any data loss resulting from insufficient data backup.
2.4.4 No content may be stored on the storage space provided that is insulting, extremist, glorifying or trivializing violence, inciting hatred, right-wing extremist, discriminatory, anti-constitutional, harmful to minors or pornographic, that violates the rights of third parties (e.g. trademark and copyright law) or other applicable law or public decency (in particular criminal law and law on administrative offences), or that contains malware or harmful software. If the Contractor becomes aware that inadmissible content within the meaning of this paragraph may have been stored on the storage space provided in the context of hosting, the Contractor will proceed as follows:
2.4.4.1 The Contractor will immediately carry out a cursory review of the relevant content. If the cursory review shows that inadmissible content cannot be ruled out, the Contractor may, at its own discretion, temporarily block such content or take other measures appropriate to the risk situation, up to and including deletion of the content. The Contractor will request the Customer to comment and will grant a reasonable period for this.
2.4.4.2 As soon as the Customer’s statement is received, or if the Customer has not submitted a statement within the granted period, the Contractor will make a final decision on how to deal with the affected content. In particular, the following measures may be considered: warning; indefinite blocking or permanent deletion of the content; temporary blocking of the Customer (alternatively, partial blocking is also possible); ordinary or extraordinary termination of the contract; filing a criminal complaint or a report to the competent administrative authority (if a criminal offence is at issue that may pose a danger to the life, limb or safety of a person, the Contractor is legally obliged to report this). The Contractor will only take the respective measure after careful and objective consideration and will take into account, in particular, the severity of the violation, the total number of violations, potential effects on the services provided by the Contractor, its customers and other third parties, the Customer’s overall conduct (e.g. willingness to acknowledge the violation), the degree of fault (intent, negligence), the motives for the violation (as far as recognizable) and the Customer’s statement (if any).
2.4.4.3 The Contractor will inform the Customer about the assessment, its result and the measures decided upon, unless prevented by legal reasons.
2.4.4.4 The Contractor will not proactively review the stored content and – subject to deviating indications – will also not carry out automated checks of the content stored. However, the Contractor will act as soon as it becomes aware of such content itself or is informed of such content by third parties. If the Customer becomes aware of such content, he can of course contact the Contractor at any time; for this purpose, he can use the contact details in the legal notice (Impressum).
Part 3 – Marketing
3.1 SEO Marketing
The Contractor offers the Customer, among other things, services in the field of SEO marketing. As part of the provision of services, the Contractor only owes the implementation of measures that, according to the Contractor’s own experience, can positively influence the search engine ranking or are expressly ordered by the Customer. This is a service within the meaning of Sections 611 et seq. BGB. A specific result (e.g. a specific ranking in the search engine results list) is owed in the context of SEO services only if this has been expressly assured.
3.2 SEA Campaigns
The Contractor offers the Customer services in the field of SEA campaigns. As part of the provision of services, the Contractor only owes the submission of proposals for effective advertising keywords and, after approval by the Customer, the implementation of the measure (placement of advertisements). This is a service within the meaning of Sections 611 et seq. BGB. A specific result (e.g. sales figures) is not owed in the context of SEA services, unless this has been expressly assured. The Contractor is not obliged to examine the legality of keywords. The Contractor submits proposals to the Customer regarding the booking of keywords. The legal review, in particular regarding third-party trademark rights, and the approval of the keywords is the responsibility of the Customer before the campaign is carried out. The fee agreed for the services described herein does not include the costs for placing paid advertisements; unless otherwise agreed, these costs are to be borne by the Customer.
3.3 Placement of Advertisements
3.3.1 The Contractor supports the Customer in placing advertisements in social media portals, search engines and other media (“advertisements”).
3.3.2 The Contractor advises the Customer on how to design advertisements so that they achieve the highest possible visibility. Specific results (e.g. sales figures, leads) are not owed.
3.3.3 The Contractor also supports the Customer in the conception of texts and images for advertisements. However, the selection of the content for the advertisements (images, texts, videos, legal notices, etc.) is the sole responsibility of the Customer. The Contractor will not examine this content, nor the advertisements as a whole, for their factual or legal correctness. It is expressly pointed out that the Contractor is not entitled to provide legal advice to the Customer. Should the Contractor in individual cases nevertheless ascertain that the content provided by the Customer and/or the advertisements violate applicable law, the Contractor may refuse to upload such content or create such advertisements.
3.3.4 All content must be approved by the Customer and will then be uploaded by the Contractor to the respective advertising channels, whereby the Contractor only owes the technical upload of the content and is only responsible for this; the provisions under “Liability/Indemnification” remain unaffected.
3.3.5 The fee agreed for the services described herein does not include the costs for placing paid advertisements; unless otherwise agreed, these costs are to be borne by the Customer.
Part 4 – Miscellaneous Provisions
4.1 Prices and Remuneration
The remuneration for the Contractor’s services is the subject of an individual contractual agreement between the parties and is generally based on the offer.
4.2 Acceptance
If a work performance has been agreed, the Contractor will request the Customer to accept the work. The acceptance period within the meaning of Section 640 (2) sentence 1 BGB is set at 2 weeks from the request for acceptance, unless a different acceptance period is required in individual cases due to special circumstances, which the Contractor will notify the Customer separately in this case. If the Customer does not respond within this period or does not refuse acceptance due to a defect, the work shall be deemed accepted.
4.3 Warranty for Defects
An insignificant defect does not give rise to warranty claims. The choice of the type of subsequent performance lies with the Contractor. The limitation period for defects and other claims is one (1) year; this shortening of the limitation period does not apply to claims arising from intent, gross negligence or from injury to life, body or health caused by the Contractor. The limitation period does not start anew if subsequent performance is provided within the scope of liability for defects. Otherwise, the statutory warranty for defects remains unaffected.
4.4 Granting of Rights, Self-Promotion and Right of Reference
4.4.1 After full payment of the order by the Customer, the Contractor generally grants the Customer a simple, non-transferable right of use to the corresponding work results. Further rights may be agreed individually.
4.4.2 Unless otherwise agreed, the Customer expressly grants the Contractor permission to present the project publicly in a reasonable manner for self-promotional purposes (references/portfolio). In particular, the Contractor is entitled to advertise the business relationship with the Customer and to refer to itself as the originator on all advertising materials created and in all advertising measures, without the Customer being entitled to any remuneration.
4.4.3 Furthermore, the Contractor is entitled to place its own name, including a link, in an appropriate manner in the footer and in the legal notice (Impressum) of the website(s) created by the Contractor, without the Customer being entitled to any remuneration for this.
4.5 Confidentiality
The Contractor will treat all business matters that come to its knowledge as strictly confidential, in particular, but not limited to, print documents, layouts, storyboards, figures, drawings, sound recordings, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and other documents containing films and/or audio plays and/or other copyright-protected materials of the Customer or companies affiliated with the Customer. The Contractor undertakes to impose the obligation of confidentiality on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, recording studios, etc.) who have access to the aforementioned business matters. The obligation of confidentiality applies for an unlimited period of time beyond the term of this contract.
4.6 Liability/Indemnification
4.6.1 The Contractor is liable on any legal grounds without limitation in the event of intent or gross negligence, in the event of intentional or negligent injury to life, body or health, on the basis of a guarantee, insofar as nothing to the contrary is regulated in this regard, or on the basis of mandatory liability, such as under the Product Liability Act. If the Contractor negligently breaches an essential contractual obligation, liability is limited to the typical, foreseeable damage, unless unlimited liability is provided for in accordance with the preceding sentence. Essential contractual obligations are obligations imposed on the Contractor by the contract according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on whose compliance the Customer may regularly rely. In all other respects, the Contractor’s liability is excluded. The above liability provisions also apply with regard to the liability of the Contractor for its vicarious agents and legal representatives.
4.6.2 The Customer indemnifies the Contractor against all claims of third parties that are asserted against the Contractor due to violations by the Customer of these General Terms and Conditions or of applicable law.
4.7 Final Provisions
4.7.1 The contracts concluded between the Contractor and the Customers are subject to the substantive law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
4.7.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the parties agree that the place of business of the Contractor shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction remain unaffected.
4.7.3 The Contractor is entitled to amend these General Terms and Conditions for objectively justified reasons (e.g. changes in case law, legal situation, market conditions or business or corporate strategy) and subject to a reasonable notice period. Existing customers will be notified of this by email no later than two weeks before the changes take effect. If the existing customer does not object within the period set in the change notification, his consent to the changes shall be deemed to have been given. If the customer objects, the changes will not take effect; in this case, the Contractor is entitled to terminate the contract extraordinarily at the time the change would have come into effect. The notification of the intended change to these General Terms and Conditions will indicate the period and the consequences of the objection or of failing to object.
of
Vertanex e.U.
Sonnwiesen 3/3
9702 Ferndorf
– hereinafter: Contractor –
Part 1 – General Provisions
1.1 General
1.1.1 The Contractor offers the Customer various agency services. The specific scope of services is the subject of individual agreements between the Contractor and the Customer.
1.1.2 The Contractor does not conclude contracts with consumers or private individuals.
1.1.3 The Contractor is entitled, in its own name and for its own account, to award the necessary services to subcontractors, who in turn may also use subcontractors. Subject to any deviating agreements, the Contractor shall remain the sole contractual partner of the Customer. Subcontractors will not be used if it is apparent to the Contractor that their use conflicts with the legitimate interests of the Customer.
1.1.4 Insofar as, in addition to these General Terms and Conditions, further contractual documents in text or written form have become part of the contract, the provisions of these further contractual documents shall take precedence over the present General Terms and Conditions in the event of any inconsistency.
1.1.5 The Contractor does not recognize any terms and conditions that deviate from these General Terms and Conditions and are used by the Customer, unless the Contractor has expressly agreed to them.
1.2 Customer’s Duty to Cooperate
1.2.1 If the Customer provides the Contractor with texts, images or other content for the fulfillment of the services commissioned, the Customer must ensure that this content does not infringe the rights of third parties (e.g. copyrights, trademark rights, etc.) or other legal provisions. In this context, it is pointed out that the Contractor is not legally entitled to provide legal advisory services to the Customer. In particular, the Contractor is neither obliged nor legally in a position to examine the Customer’s business model and/or the works created or acquired by the Customer (layouts, graphics, texts, etc.) for their compatibility with applicable law. The Contractor will in particular not carry out trademark searches or other examinations for conflicts with intellectual property rights regarding the works provided by the Customer. Insofar as the Customer issues specific instructions regarding the work to be produced, the Customer shall be liable for these instructions itself.
1.2.2 The Customer is obliged to provide all information, data, works (e.g. data for the legal notice, graphics, logos, etc.) and access data required for the fulfillment of the order fully and correctly. The Customer must also ensure that the instructions it issues are in compliance with applicable law.
1.2.3 Unless otherwise agreed individually, the Customer is responsible for procuring the material required for the provision of the agency services (e.g. graphics, videos) and shall make this available to the Contractor in good time. If the Customer does not provide this material and also does not make any further specifications, the Contractor may, at its own discretion and in compliance with copyright attribution requirements, use image material from common providers (e.g. stock photo service providers) or provide the relevant parts of the website with a placeholder.
1.2.4 Insofar as the conclusion of a data processing agreement pursuant to Art. 28 GDPR is required for individual parts of the order, both contractual parties undertake to conclude such an agreement – to be provided by the Contractor – before the start of the service provision.
1.2.5 The Contractor is in no way responsible to the Customer for delays in the implementation of projects caused by late (necessary) cooperation or assistance by the Customer; the provisions under the heading “Liability/Indemnification” remain unaffected.
1.2.6 If the Customer fails to comply with its duty to cooperate under this section, the Contractor may charge the Customer for the additional work incurred as a result (e.g. costs for stock photos and the time required to search for them).
1.3 Use of Artificial Intelligence (AI)
1.3.1 The Contractor is entitled to use artificial intelligence technologies (AI tools) to create content (e.g. text, images, audio or video) as part of the provision of services. Unless otherwise agreed, all content generated by AI will be reviewed by a natural person after creation and adjusted if necessary. AI tools will not be used if it is apparent to the Contractor that their use conflicts with the legitimate interests of the Customer. If the Customer wishes AI technologies not to be used for certain projects or parts thereof, the Customer must notify the Contractor of this independently in text form.
1.3.2 The Contractor undertakes that content created wholly or partly using AI does not infringe the rights of third parties. If exclusive rights of use are to be transferred to content created wholly or partly using AI, the Contractor shall ensure that such a transfer of rights of use is possible (e.g. by adapting AI-generated works to such an extent that they achieve the required level of originality and thus copyright protection).
1.3.3 Separate labeling of AI-generated content is only required if and to the extent that labeling of the content is legally prescribed, or if at the time of service provision it is already foreseeable that a labeling obligation will be legally prescribed in the near future (e.g. due to regulations in the AI Act). The same applies to notices that certain work results were produced with the aid of artificial intelligence.
Part 2 – Online Presence and Technology
2.1 Website and Shop Creation (Agile)
2.1.1 Unless otherwise agreed individually, the creation of new websites/shops or the extension of existing websites/shops or web/shop components (hereinafter “website creation”) is carried out on the basis of agile methods. The other provisions of these General Terms and Conditions remain unaffected.
2.1.2 The subject of website creation contracts between the Contractor and the Customer is generally the development of new websites or the extension of existing websites (e.g. integrating new interfaces or programming new online applications), taking into account the Customer’s technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work and services within the meaning of Sections 631 et seq. of the German Civil Code (BGB).
2.1.3 The services agreed in detail result from the contract individually concluded between the Contractor and the Customer. For this purpose, the Customer first sends the Contractor an inquiry with a description that is as precise as possible of the desired website content (design content such as images, layouts, logos, fonts, etc. are to be defined and provided by the Customer, unless otherwise agreed). This inquiry constitutes a request to the Contractor to submit an offer. The Contractor will examine the Customer’s ideas described in the inquiry, to the best of its knowledge and belief, for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and lack of contradictions and will prepare an offer on the basis of the Customer’s wishes resulting from the inquiry. A contract between the Contractor and the Customer is only concluded when the Customer accepts this offer.
2.1.4 The Customer may submit requests for changes at any time, insofar as these are covered by the originally agreed scope of services. Such adjustments become part of the original contract if both contractual parties agree in text form (e.g. by email). Apart from this, the Contractor is only obliged to create the functions/positions listed in the contract or to provide the agreed service. Additional services must be agreed and remunerated separately.
2.1.5 As soon as the website has been completed, the Contractor will request the Customer to accept the website.
2.1.6 A prerequisite for the Contractor’s activity is that all data to be provided by the Customer and required for the implementation of the project (e.g. texts, templates, graphics, fonts) and/or system environments are made available to the Contractor in good time and in an appropriate form. The Contractor is in no way responsible to the Customer for delays in the implementation of projects caused by late (necessary) cooperation or assistance by the Customer.
2.1.7 The review or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) is only owed by the Contractor if this has been expressly agreed individually. Subject to deviating express individual agreements, there is no claim to the surrender of graphics, source codes, (development) documentation, manuals or other additional documentation.
2.1.8 Unless otherwise agreed, the websites created are optimized for the browsers Chrome, Safari, Firefox and Edge in their respective current versions (the last two versions of each browser). Search engine optimization (SEO) is only owed if it has been expressly agreed.
2.1.9 The Contractor is neither entitled nor obliged to advise the Customer on competition, consumer, labeling or other legal issues within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz). It is therefore the Customer’s responsibility to inform himself about the competition, consumer or labeling regulations applicable to his shop and, if necessary, to have the shop reviewed by a specialized lawyer.
2.1.10 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services with regard to the websites. However, the Contractor is not obliged to make such an offer, nor is the Customer obliged to use the Contractor’s additional services. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Customer alone is responsible for the technical maintenance and updating of the websites after acceptance. The Contractor is not liable to the Customer for any security vulnerabilities that are exploited for unlawful purposes (hacking) through the use of outdated third-party software.
2.2 Website and Shop Creation (Specification and Requirements Documents)
2.2.1 If the parties have agreed that the creation of new or the extension of existing websites/shops or web/shop components (hereinafter “website creation”) will be based on a specification sheet (“Lastenheft”) and a requirements specification (“Pflichtenheft”), the order will be processed in accordance with this section.
2.2.2 The subject of website creation contracts between the Contractor and the Customer is generally the development of new websites or the extension of existing websites (e.g. integrating new interfaces or programming new online applications), taking into account the Customer’s technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work and services within the meaning of Sections 631 et seq. BGB.
2.2.3 The scope of the services to be provided by the Contractor is determined primarily by the individual contractual agreements between the parties and, in addition, by a detailed specification sheet (“Lastenheft”) prepared by the Customer and the requirements specification (“Pflichtenheft”) based on it. The Contractor will examine the Customer’s ideas described in the specification sheet to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and lack of contradictions. If the Contractor recognizes that the specifications contained in the specification sheet are not suitable for creating a website, the Contractor will promptly inform the Customer and make a corresponding proposal for supplementing and/or adjusting the specification sheet. The Customer must comment on any proposals made by the Contractor regarding the specification sheet in writing or in text form within a reasonable period of time and finally confirm the content of the specification sheet to the Contractor in writing or in text form. If the parties agree on the specification sheet, its content becomes part of the contract.
2.2.4 On the basis of the specification sheet, the Contractor shall prepare a requirements specification that primarily describes the technical and/or design implementation of the specifications contained in the specification sheet. Once completed, the Contractor will present the requirements specification to the Customer for acceptance. The Customer is entitled to reject the requirements specification prepared by the Contractor and to communicate change or adjustment requests. The Contractor undertakes to submit a maximum of two alternative proposals, taking into account the Customer’s wishes. If the Customer ultimately does not agree with the Contractor’s final proposal, either the Customer or the Contractor may – insofar as legally permissible – extraordinarily terminate the contractual relationship or withdraw from the contract. In this case, the Customer must appropriately remunerate or reimburse the Contractor for the fees and/or expenses incurred in connection with the specification and/or requirements specification.
2.2.5 If the requirements specification is accepted by the Customer, the services described therein shall be deemed to have been finally agreed between the parties. Any deviation from the content of the requirements specification accepted by the Customer requires an express individual agreement between the parties. The Contractor does not provide any services beyond those described in the requirements specification accepted by the Customer. Likewise, the Contractor will generally not provide services below the level of the services described in the requirements specification accepted by the Customer. After acceptance of the requirements specification by the Customer, the Contractor shall develop and program the websites in compliance with the agreed specifications.
2.2.6 In addition to the requirements specification, the Contractor shall provide the Customer with a time and work schedule. The content and specifications of this time and work schedule become part of the contract unless the Customer objects without delay. The Contractor undertakes to deliver the completed website or parts thereof to the Customer by the end date specified in the time and work schedule on an appropriate data carrier and/or by email and/or to upload it to a server specified by the Customer. The details of the delivery or upload of the completed websites are otherwise the subject of individual contractual agreements between the parties.
2.2.7 A prerequisite for the Contractor’s activity is that all data to be provided by the Customer and required for the implementation of the project (e.g. texts, templates, graphics) and/or system environments are made available to the Contractor in good time and in an appropriate form. The Contractor is in no way responsible to the Customer for delays in the implementation of projects caused by late (necessary) cooperation or assistance by the Customer.
2.2.8 As soon as the website has been completed, the Contractor will request the Customer to accept the website. If necessary, a test phase can be agreed before acceptance. If the Customer discovers any errors before acceptance or during an agreed test phase, the Customer will notify the Contractor of these in writing or in text form. The Contractor will endeavor to correct the errors professionally. For this purpose, the Contractor may provide temporary workarounds.
2.2.9 The review or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) is only owed by the Contractor if this has been expressly agreed individually. Subject to deviating express individual agreements, there is no claim to the surrender of graphics, source codes, (development) documentation, manuals or other additional documentation.
2.2.10 Unless otherwise agreed, the websites created are optimized for the browsers Chrome, Safari, Firefox and Edge in their respective current versions (the last two versions of each browser). Search engine optimization (SEO) is only owed if it has been expressly agreed.
2.2.11 The Contractor is neither entitled nor obliged to advise the Customer on competition, consumer, labeling or other legal issues within the meaning of the German Legal Services Act (Rechtsdienstleistungsgesetz). It is therefore the Customer’s responsibility to inform himself about the competition, consumer or labeling regulations applicable to his shop and, if necessary, to have the shop reviewed by a specialized lawyer.
2.2.12 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services with regard to the websites. However, the Contractor is not obliged to make such an offer, nor is the Customer obliged to use the Contractor’s additional services. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Customer alone is responsible for the technical maintenance and updating of the websites after acceptance. The Contractor is not liable to the Customer for any security vulnerabilities that are exploited for unlawful purposes (hacking) through the use of outdated third-party software.
2.3 Maintenance and Support of Websites / Shops
2.3.1 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services with regard to the websites (“maintenance contracts”). The Contractor may also offer maintenance of third-party websites. However, the Contractor is not obliged to make such an offer, nor is the Customer obliged to use the Contractor’s additional services. Corresponding agreements are exclusively the subject of individual arrangements.
2.3.2 The content of the maintenance contracts is the removal of functional faults and the event-related updating of the website for common web browsers in their then current versions. Additional services, such as regular maintenance, may be agreed individually.
2.3.3 The Contractor is not liable for functional faults and incompatibilities caused by unauthorized changes made by the Customer or based on other errors that do not lie within the Contractor’s area of responsibility; the provisions under “Liability/Indemnification” remain unaffected.
2.3.4 Unless otherwise agreed, maintenance only covers the technical, but not the content-related updating of the website. Subject to deviating individual agreements, the Contractor is in particular not obliged to update the legal notice (Impressum) or the privacy policy.
2.4 Web Hosting
2.4.1 The Contractor also offers the Customer hosting of the websites/shops created by the Contractor. To fulfill its services, the Contractor will use the servers of third-party companies. The Contractor will inform the Customer about the servers and third-party companies used before the conclusion of the contract. The specific scope of services (domain management, storage space, email hosting, certificates, etc.) is the subject of individual agreements between the parties.
2.4.2 The availability of the servers used by the Contractor for hosting purposes is at least 99 percent on an annual average. Excluded from this are periods during which the servers are unreachable due to events beyond the Contractor’s control (force majeure, actions of third parties, technical problems outside the Contractor’s sphere of influence, etc.).
2.4.3 It is the Customer’s responsibility to create regular backup copies of its hosted data. If the Customer is unable to do so, he must commission the Contractor or other professionally suitable third parties with the backup. The Customer is liable for any data loss resulting from insufficient data backup.
2.4.4 No content may be stored on the storage space provided that is insulting, extremist, glorifying or trivializing violence, inciting hatred, right-wing extremist, discriminatory, anti-constitutional, harmful to minors or pornographic, that violates the rights of third parties (e.g. trademark and copyright law) or other applicable law or public decency (in particular criminal law and law on administrative offences), or that contains malware or harmful software. If the Contractor becomes aware that inadmissible content within the meaning of this paragraph may have been stored on the storage space provided in the context of hosting, the Contractor will proceed as follows:
2.4.4.1 The Contractor will immediately carry out a cursory review of the relevant content. If the cursory review shows that inadmissible content cannot be ruled out, the Contractor may, at its own discretion, temporarily block such content or take other measures appropriate to the risk situation, up to and including deletion of the content. The Contractor will request the Customer to comment and will grant a reasonable period for this.
2.4.4.2 As soon as the Customer’s statement is received, or if the Customer has not submitted a statement within the granted period, the Contractor will make a final decision on how to deal with the affected content. In particular, the following measures may be considered: warning; indefinite blocking or permanent deletion of the content; temporary blocking of the Customer (alternatively, partial blocking is also possible); ordinary or extraordinary termination of the contract; filing a criminal complaint or a report to the competent administrative authority (if a criminal offence is at issue that may pose a danger to the life, limb or safety of a person, the Contractor is legally obliged to report this). The Contractor will only take the respective measure after careful and objective consideration and will take into account, in particular, the severity of the violation, the total number of violations, potential effects on the services provided by the Contractor, its customers and other third parties, the Customer’s overall conduct (e.g. willingness to acknowledge the violation), the degree of fault (intent, negligence), the motives for the violation (as far as recognizable) and the Customer’s statement (if any).
2.4.4.3 The Contractor will inform the Customer about the assessment, its result and the measures decided upon, unless prevented by legal reasons.
2.4.4.4 The Contractor will not proactively review the stored content and – subject to deviating indications – will also not carry out automated checks of the content stored. However, the Contractor will act as soon as it becomes aware of such content itself or is informed of such content by third parties. If the Customer becomes aware of such content, he can of course contact the Contractor at any time; for this purpose, he can use the contact details in the legal notice (Impressum).
Part 3 – Marketing
3.1 SEO Marketing
The Contractor offers the Customer, among other things, services in the field of SEO marketing. As part of the provision of services, the Contractor only owes the implementation of measures that, according to the Contractor’s own experience, can positively influence the search engine ranking or are expressly ordered by the Customer. This is a service within the meaning of Sections 611 et seq. BGB. A specific result (e.g. a specific ranking in the search engine results list) is owed in the context of SEO services only if this has been expressly assured.
3.2 SEA Campaigns
The Contractor offers the Customer services in the field of SEA campaigns. As part of the provision of services, the Contractor only owes the submission of proposals for effective advertising keywords and, after approval by the Customer, the implementation of the measure (placement of advertisements). This is a service within the meaning of Sections 611 et seq. BGB. A specific result (e.g. sales figures) is not owed in the context of SEA services, unless this has been expressly assured. The Contractor is not obliged to examine the legality of keywords. The Contractor submits proposals to the Customer regarding the booking of keywords. The legal review, in particular regarding third-party trademark rights, and the approval of the keywords is the responsibility of the Customer before the campaign is carried out. The fee agreed for the services described herein does not include the costs for placing paid advertisements; unless otherwise agreed, these costs are to be borne by the Customer.
3.3 Placement of Advertisements
3.3.1 The Contractor supports the Customer in placing advertisements in social media portals, search engines and other media (“advertisements”).
3.3.2 The Contractor advises the Customer on how to design advertisements so that they achieve the highest possible visibility. Specific results (e.g. sales figures, leads) are not owed.
3.3.3 The Contractor also supports the Customer in the conception of texts and images for advertisements. However, the selection of the content for the advertisements (images, texts, videos, legal notices, etc.) is the sole responsibility of the Customer. The Contractor will not examine this content, nor the advertisements as a whole, for their factual or legal correctness. It is expressly pointed out that the Contractor is not entitled to provide legal advice to the Customer. Should the Contractor in individual cases nevertheless ascertain that the content provided by the Customer and/or the advertisements violate applicable law, the Contractor may refuse to upload such content or create such advertisements.
3.3.4 All content must be approved by the Customer and will then be uploaded by the Contractor to the respective advertising channels, whereby the Contractor only owes the technical upload of the content and is only responsible for this; the provisions under “Liability/Indemnification” remain unaffected.
3.3.5 The fee agreed for the services described herein does not include the costs for placing paid advertisements; unless otherwise agreed, these costs are to be borne by the Customer.
Part 4 – Miscellaneous Provisions
4.1 Prices and Remuneration
The remuneration for the Contractor’s services is the subject of an individual contractual agreement between the parties and is generally based on the offer.
4.2 Acceptance
If a work performance has been agreed, the Contractor will request the Customer to accept the work. The acceptance period within the meaning of Section 640 (2) sentence 1 BGB is set at 2 weeks from the request for acceptance, unless a different acceptance period is required in individual cases due to special circumstances, which the Contractor will notify the Customer separately in this case. If the Customer does not respond within this period or does not refuse acceptance due to a defect, the work shall be deemed accepted.
4.3 Warranty for Defects
An insignificant defect does not give rise to warranty claims. The choice of the type of subsequent performance lies with the Contractor. The limitation period for defects and other claims is one (1) year; this shortening of the limitation period does not apply to claims arising from intent, gross negligence or from injury to life, body or health caused by the Contractor. The limitation period does not start anew if subsequent performance is provided within the scope of liability for defects. Otherwise, the statutory warranty for defects remains unaffected.
4.4 Granting of Rights, Self-Promotion and Right of Reference
4.4.1 After full payment of the order by the Customer, the Contractor generally grants the Customer a simple, non-transferable right of use to the corresponding work results. Further rights may be agreed individually.
4.4.2 Unless otherwise agreed, the Customer expressly grants the Contractor permission to present the project publicly in a reasonable manner for self-promotional purposes (references/portfolio). In particular, the Contractor is entitled to advertise the business relationship with the Customer and to refer to itself as the originator on all advertising materials created and in all advertising measures, without the Customer being entitled to any remuneration.
4.4.3 Furthermore, the Contractor is entitled to place its own name, including a link, in an appropriate manner in the footer and in the legal notice (Impressum) of the website(s) created by the Contractor, without the Customer being entitled to any remuneration for this.
4.5 Confidentiality
The Contractor will treat all business matters that come to its knowledge as strictly confidential, in particular, but not limited to, print documents, layouts, storyboards, figures, drawings, sound recordings, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and other documents containing films and/or audio plays and/or other copyright-protected materials of the Customer or companies affiliated with the Customer. The Contractor undertakes to impose the obligation of confidentiality on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, recording studios, etc.) who have access to the aforementioned business matters. The obligation of confidentiality applies for an unlimited period of time beyond the term of this contract.
4.6 Liability/Indemnification
4.6.1 The Contractor is liable on any legal grounds without limitation in the event of intent or gross negligence, in the event of intentional or negligent injury to life, body or health, on the basis of a guarantee, insofar as nothing to the contrary is regulated in this regard, or on the basis of mandatory liability, such as under the Product Liability Act. If the Contractor negligently breaches an essential contractual obligation, liability is limited to the typical, foreseeable damage, unless unlimited liability is provided for in accordance with the preceding sentence. Essential contractual obligations are obligations imposed on the Contractor by the contract according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on whose compliance the Customer may regularly rely. In all other respects, the Contractor’s liability is excluded. The above liability provisions also apply with regard to the liability of the Contractor for its vicarious agents and legal representatives.
4.6.2 The Customer indemnifies the Contractor against all claims of third parties that are asserted against the Contractor due to violations by the Customer of these General Terms and Conditions or of applicable law.
4.7 Final Provisions
4.7.1 The contracts concluded between the Contractor and the Customers are subject to the substantive law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
4.7.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the parties agree that the place of business of the Contractor shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction remain unaffected.
4.7.3 The Contractor is entitled to amend these General Terms and Conditions for objectively justified reasons (e.g. changes in case law, legal situation, market conditions or business or corporate strategy) and subject to a reasonable notice period. Existing customers will be notified of this by email no later than two weeks before the changes take effect. If the existing customer does not object within the period set in the change notification, his consent to the changes shall be deemed to have been given. If the customer objects, the changes will not take effect; in this case, the Contractor is entitled to terminate the contract extraordinarily at the time the change would have come into effect. The notification of the intended change to these General Terms and Conditions will indicate the period and the consequences of the objection or of failing to object.
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