(hereinafter referred to as the Agency)
§1 Scope of application
(1) These General Terms and Conditions of the Agency shall apply exclusively; we do not recognise any terms and conditions of the Customer which conflict with or deviate from our General Terms and Conditions unless we have expressly agreed to their validity in writing. Our General Terms and Conditions of Business shall also apply even if we perform the service to the customer without reservation in the knowledge that the customer's terms and conditions are contrary to or deviate from our General Terms and Conditions of Sale.
(2) All agreements made between the Agency and the Customer for the purpose of executing this contract are set out in writing in these General Terms and Conditions.
(3) Our General Terms and Conditions of Business shall only apply to companies within the meaning of § 310 (1) BGB.
§2 Conclusion of contract
(1) Subject to individual agreements to the contrary, the contract shall be concluded in principle by written or e-mail confirmation of the order. Confirmations made verbally or by telephone are also subject to the General Terms and Conditions of Business.
(2) If the customer's order is to be qualified as an offer according to § 145 BGB, we can accept this offer within 2 weeks by means of a written order confirmation.
(3) Offers on our part are subject to change without notice.
§ 3 Subject matter of the contract
(1) On the basis of the contractual relationship concluded with the Client, the Agency shall provide services with different scope of performance in the area of online and offline advertising media.
(2) The scope of services will be adapted to the customer's needs and individually regulated by contract.
3. The Agency shall not execute the contract until it has received all necessary information and data.
(4) The Agency is entitled to commission third parties to fulfil individual or all contractual obligations.
§ 4 Performance by third parties
(1) If the Agency has to conclude contracts with third-party providers (e.g. social networks, software licences or providers of web space) in order to fulfil the Client's order, this shall be done exclusively in the name and on behalf of the Client.
(2) Insofar as, in individual cases, contracts for external services are concluded in the name and for the account of the Agency, the Client shall reimburse the Agency for the associated costs.
§ 5 Cooperation of the client
(1) The Client undertakes to provide the Agency in good time with all documents necessary for the fulfilment of the order in accordance with the concept. This applies in particular to texts, photos, logos, graphics, films, music, etc.
(2) The Client shall ensure that the documents and material which it makes available to the Agency are not encumbered with third-party rights. The Client shall indemnify the Agency against claims for compensation by third parties resulting from the breach of this obligation. The obligation to indemnify shall not apply if the Client can prove that he is not at fault.
(3) The Client shall hand over the documents in the form agreed with the Agency. In the absence of specific agreements, the Client shall provide the documents both in printed form and electronically in a standard storage format.
§ 6 Remuneration via the Agency
(1) The agreed prices are net prices. The statutory value added tax is not included in the prices. It is shown separately on the invoice at the statutory rate on the day of invoicing. If a flat-rate remuneration has been agreed, the Agency may claim additional remuneration for additional services that become necessary due to change requests by the Client or due to unforeseen circumstances for which the Agency is not responsible. This remuneration shall be calculated according to the hours worked.
(2) Unless otherwise stated in the Agency's written order confirmation, the agreed remuneration is due for payment net (without deduction) within 30 days of the invoice date. The statutory regulations concerning the consequences of default of payment shall apply. If the buyer is in arrears with any payment obligations to us, all existing claims are due immediately.
(3) In the case of orders to be fulfilled once, the invoice is issued after confirmation of completion by the customer. In the case of orders for which the Agency provides services over a longer period of several months, the parties shall agree on monthly or quarterly instalments to be paid/appropriate instalments according to the progress of work.
§ 7 Licences
(1) SawatzkiMühlenbruch sells flat-rate licences for which fixed prices are regularly agreed. Depending on the valid fee model, the offer must include provisions for billing and due dates.
(2) The licensing model of SawatzkiMühlenbruch is a simple right of use.
3. Licences shall be payable annually. The valid price list always applies. Status 01.01.2017
§ 8 Gewährleistung auf Software-Entwicklung
SawatzkiMühlenbruch gewährleistet die Funktionsfähigkeit der dem Kunden zur Verfügung gestellten, durch SawatzkiMühlenbruch entwickelten Software für 24 Monate ab dem Datum der Übergabe der Software an den Kunden oder ab dem Datum, an dem die Software erstmals für den Kunden eingesetzt wird. SawatzkiMühlenbruch leistet in diesem Zeitraum die Instandhaltung sowie Wartung der Software und führt die notwendigen technischen Updates durch.
§ 9 Haftung
(1) The Agency shall be liable in accordance with the statutory provisions if the Client asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as the Agency is not accused of intentional breach of contract, liability for damages shall be limited to foreseeable, typically occurring damages.
(2) The Agency shall be liable in accordance with the statutory provisions insofar as it culpably violates an essential contractual obligation; however, even in this case the liability for damages shall be limited to the foreseeable, typically occurring damage.
(3) An essential contractual obligation shall be deemed to exist if the breach of duty relates to an obligation on the fulfilment of which the customer relied and was entitled to rely.
(4) Liability for culpable injury to life, body or health remains unaffected.
(5) Unless otherwise regulated above, liability is excluded.
(6) The limitation period for claims for defects is 12 months, calculated from the date of release.
(7) The Agency is not liable for the correctness and completeness of the factual statements made by the Client about his products, services or company. With the release, the Client assumes responsibility for the correctness of the texts and images. The Agency is not obliged to check the contents for their legality. The agency assumes no liability for damages caused by the services offered or possible trademark infringements by the client statements. The same applies to the creation and optimisation measures carried out by the customer based on the agency's recommendations. The Agency shall only be liable for the admissibility and legal validity of a domain/web presence if the Agency has expressly committed itself to this and the procurement and registration of the domain is an essential part of the contract.
(8) The Agency shall prepare the service according to the current state of the art. In the event of changes and adaptations to new standards, the Agency shall not be liable for ensuring that a website or application also functions properly on older browsers.
§ 10 Gesamthaftung
(1) Any further liability for damages other than that provided for in § 7 shall be excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or claims in tort for compensation for property damage in accordance with § 823 BGB.
(2) The limitation according to paragraph (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for damages.
(3) Insofar as the Agency's liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 11 Nutzungsrechte
(1) The Agency shall grant the Client the spatially and temporally unlimited right of public access (§ 19 a UrhG).
(2) Other uses, in particular the duplication or distribution of online and offline advertising media or parts thereof (with the exception of works provided by the Client himself) in printed form or on other websites not designed by the Agency, require the prior written consent of the Agency.
(3) The agency is entitled to affix its copyright designation to the advertising material. The Agency shall have the right to refer to his participation in the creation, in particular by including a reference with a link to his own website.
(4) Changes and editing of the contents of the advertising material, in particular updates of texts, images, graphics and tables as well as technical changes may be made by the Client or third parties commissioned by the Client without the consent of the Agency. On the other hand, changes and editing of the graphic design of the website require the consent of the Agency.
(5) The right of use is only transferred to the client upon full payment of the remuneration.
§ 12 Herausgabe von Daten
(1) The Agency shall provide the Advertiser with all data required by the Advertiser to update the advertising material and edit the content. The data format and the type of data carriers shall be determined by mutual agreement between the parties. If no provision is made, the Agency may select a suitable data format and data carrier.
(2) If the Agency has provided the Client with data carriers, files and data, these may only be changed with the consent of the Agency.
(3) Risk and costs of transport of data carriers, files and data online and offline are borne by the client.
§ 13 Sonstiges
(1) The agency stores customer data exclusively for contractual and administrative purposes.
(2) Both parties to the contract undertake to treat confidentially any information marked as confidential which becomes known to them in the course of the contract. This obligation shall continue to have effect beyond the end of the contractual relationship.
§ 14 Salvatorische Klausel
The invalidity or ineffectiveness of individual provisions of these terms and conditions shall not affect the validity of the remaining provisions.
§ 15 Gerichtstand
(1) The law of the Federal Republic of Germany applies, in particular the German Civil Code and Commercial Code.
(2) The place of jurisdiction is either Essen or Frankfurt am Main at our discretion.
(3) In the event that the Client does not have a general place of jurisdiction in the Federal Republic of Germany or moves its registered office or habitual residence abroad after conclusion of the contract, the place of business shall be agreed by the Agency as the place of jurisdiction.
§ 16 Vergütung über VR FACTOREM GmbH
(1) We are entitled to assign the claims from our business relations.
(2) It is not necessary to withdraw from the contract in order to assert the rights from retention of title, unless the debtor is a consumer.
(3) All payments are to be made with debt-discharging effect exclusively to VR FACTOREM GmbH, Ludwig-Erhard-Straße 30 - 34, 65760 Eschborn, to which we have assigned our present and future claims arising from our business relationship. We have also transferred our reserved property to VR FACTOREM GmbH.
(4) Offsetting by the purchaser with counterclaims is excluded, unless the counterclaims are undisputed or have been legally established. The assertion of a right of retention by the purchaser is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or have been legally established.