PART 1 – GENERAL PROVISIONS
1.1 GENERAL
1.1.1 The Contractor offers the Client various agency services. The specific scope of services is subject to individual agreements between the Contractor and the Client.
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 on its own account, to subcontract the required services to subcontractors, who in turn may also engage subcontractors. Unless otherwise agreed, the Contractor remains the sole contractual partner of the Client. The use of subcontractors will not take place if it is evident to the Contractor that such use would conflict with the Client’s legitimate interests.
1.1.4 Insofar as, in addition to these General Terms and Conditions (GTC), further contractual documents in text or written form have become part of the contract, the provisions of these further documents shall take precedence in case of conflict.
1.1.5 Any GTCs deviating from these Terms, used by the Client, will not be recognized by the Contractor – unless expressly agreed otherwise.
PART 2 – ONLINE PRESENCE AND TECHNOLOGY
2.1 WEBSITE AND SHOP CREATION (AGILE)
2.1.1 Unless otherwise agreed in individual agreements, the creation of new or the expansion of existing websites/shops or web/shop components (hereinafter "website creation") shall be carried out on the basis of agile methods. The remaining provisions of these General Terms and Conditions remain unaffected.
2.1.2 The subject matter of website-creation contracts between the Contractor and the Client is, in principle, the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the Client’s technical and/or design specifications. Website-creation contracts concluded between the parties are contracts for work and services (Werkverträge) within the meaning of §§ 631 et seq. of the German Civil Code (BGB).
2.1.3 The specific services agreed upon shall result from the individual contract concluded between the Contractor and the Client. For this purpose, the Client shall first submit a request to the Contractor containing as accurate a description as possible of the website content desired (design-related content such as images, layouts, logos, fonts, etc. are to be defined and provided by the Client, unless otherwise agreed). This request constitutes an invitation to submit an offer by the Contractor. The Contractor will examine the Client’s ideas described in the request to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to third-party rights), clarity, feasibility and internal consistency and will prepare an offer on the basis of the Client’s request. A contract between the Contractor and the Client is concluded only upon the Client’s acceptance of the offer.
2.1.4 The Client may at any time submit requests as long as these are covered by the originally agreed scope of services. Such adjustments shall become part of the original contract if both contracting parties agree in text form (e.g. by e-mail). Otherwise, the Contractor is only obliged to deliver the functions/positions listed in the contract or to perform the agreed service. Any additional services must be agreed separately and remunerated.
2.1.5 As soon as the website has been completed, the Contractor shall request the Client to accept the website.
2.1.6 A prerequisite for the Contractor’s work is that all information, data, works (e.g. the data for the imprint, graphics, logos, etc.) and access credentials to be provided by the Client for the purpose of fulfilling the order are provided to the Contractor in full, correctly and in good time and in an appropriate form. The Contractor is in no way liable to the Client for delays and lateness in the implementation of projects that arise from the Client’s delayed (necessary) cooperation; the provisions under the heading “Liability/Indemnification” remain unaffected.
2.1.7 The Contractor shall only be obliged to examine or procure rights, or procure and/or integrate plugins and/or tools (e.g. analytics) or certificates (e.g. SSL/TLS), if this has been expressly agreed in the individual contract. Unless expressly agreed otherwise in individual arrangements, there shall be no entitlement to the handover of graphics, source code, (development) documentation, manuals and other supplementary documentation.
2.1.8 Unless otherwise agreed, the websites created shall be optimized for the browsers Chrome, Safari, Firefox and Edge in their current versions (each covering the last two versions of the browser). Search engine optimization (SEO) shall only be owed if it has been expressly agreed.
2.1.9 The Contractor is neither entitled nor obliged to advise the Client on competition, consumer, labelling or other legal issues within the meaning of the Legal Services Act (Rechtsdienstleistungsgesetz). It is therefore the Client’s responsibility to inform themselves about the competition, consumer or labelling regulations applicable to their shop and, if necessary, to have the shop reviewed by a specialized attorney.
2.1.10 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services for the websites. However, the Contractor is not obliged to make such an offer, nor is the Client required to accept any extended service offers by the Contractor. Such arrangements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Client alone is responsible for the technical maintenance and currentness of the websites after acceptance. The Contractor shall not be liable to the Client for any security vulnerabilities that are exploited for unlawful purposes by third parties as a result of using outdated third-party software (hacking).
2.2 WEBSITE AND SHOP CREATION (REQUIREMENTS SPECIFICATION AND FUNCTIONAL SPECIFICATION)
2.2.1 If the parties have agreed that the creation of new or the expansion of existing websites/shops or web/shop components (hereinafter “website creation”) shall be carried out on the basis of a requirements specification (Lastenheft) and a functional specification (Pflichtenheft), the order shall be processed in accordance with the provisions of this clause.
2.2.2 The subject matter of website-creation contracts between the Contractor and the Client is, in principle, the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the Client’s technical and/or design specifications. Website-creation contracts concluded between the parties are contracts for work and services (Werkverträge) within the meaning of §§ 631 et seq. BGB.
2.2.3 The scope of the services to be provided by the Contractor shall be determined, on the one hand, by individual contractual agreements between the parties and, on the other hand, by a detailed requirements specification (Lastenheft) prepared by the Client and the functional specification (Pflichtenheft) based thereon. The Contractor will examine the Client’s requirements described in the requirements specification to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to third-party rights), clarity, feasibility and internal consistency. Should the Contractor determine that the requirements set out in the requirements specification are not suitable for the creation of a website, the Contractor shall immediately inform the Client and propose an appropriate amendment and/or addition to the requirements specification. The Client shall respond to any proposals by the Contractor regarding the requirements specification in writing or in text form within a reasonable period and shall finally confirm the contents of the requirements specification to the Contractor in writing or in text form. If the parties agree on the contents of the requirements specification, its contents shall become part of the contract.
2.2.4 On the basis of the requirements specification, the Contractor shall create a functional specification describing primarily the technical and/or design implementation of the requirements contained in the requirements specification. After completion, the Contractor shall submit the functional specification to the Client for acceptance. The Client shall be entitled to reject the functional specification prepared by the Contractor and to submit requests for changes or adjustments. The Contractor undertakes, taking the Client’s wishes into account, to submit up to two alternative proposals. If the Client is finally not in agreement with the Contractor’s last proposal, either the Client or the Contractor may, insofar as legally possible, terminate the contractual relationship extraordinarily or withdraw from the contract. The fees and/or expenses incurred by the Contractor in connection with the preparation of the requirements and/or functional specification shall in such case be reasonably remunerated or reimbursed by the Client.
2.2.5 If the functional specification is accepted by the Client, the services described therein shall be deemed finally agreed between the parties. Any deviation from the contents of the functional specification accepted by the Client shall require an express individual agreement between the parties. The Contractor shall not provide services beyond those described in the Client-accepted functional specification. Likewise, the Contractor shall not provide inferior services in relation to the services described in the Client-accepted functional specification. After acceptance of the functional specification by the Client, the Contractor shall develop and program the websites in accordance with the agreed specifications.
2.2.6 In addition to the functional specification, the Contractor shall provide the Client with a schedule of time and work. The contents and requirements of this schedule shall become part of the contract unless the Client immediately objects. The Contractor undertakes to deliver the finished website or parts thereof to the Client on a suitable data carrier and/or to send it/them by e-mail and/or to upload it to a server designated by the Client by the end date specified in the schedule. The details of the handover and/or upload of the finished websites shall otherwise be the subject of individual contractual agreements between the parties.
2.2.7 A prerequisite for the Contractor’s work is that all data (e.g. texts, templates, graphics) and/or system environments to be provided by the Client for the implementation of the project are provided to the Contractor in due time and in suitable form. The Contractor is in no way liable to the Client for delays and lateness in the implementation of projects which arise as a result of the Client’s delayed (necessary) cooperation.
2.2.8 As soon as the website has been completed, the Contractor shall request the Client to accept it. If required, a testing phase may be agreed prior to acceptance. If the Client detects errors before acceptance or during an agreed testing phase, he/she shall notify the Contractor of these in writing or in text form. The Contractor shall endeavour to correct the errors in a professional manner. For this purpose, the Contractor may provide temporary workarounds.
2.2.9 The examination or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. analytics) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if this has been expressly agreed in the individual contract. Unless expressly agreed otherwise in individual arrangements, there shall be no entitlement to the handover of graphics, source code, (development) documentation, manuals and other supplementary documentation.
2.2.10 Unless otherwise agreed, the websites created shall be optimized for the browsers Chrome, Safari, Firefox and Edge in their current versions (each covering the last two versions of the browser). Search engine optimization (SEO) shall only be owed if it has been expressly agreed.
2.2.11 The Contractor is neither entitled nor obliged to advise the Client on competition, consumer, labelling or other legal questions within the meaning of the Legal Services Act. It is therefore the Client’s responsibility to inform themselves about the competition, consumer or labelling regulations applicable to their shop and, if necessary, to have the shop reviewed by a specialized attorney.
2.2.12 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services for the websites. However, the Contractor is not obliged to make such an offer, nor is the Client required to accept any extended service offers by the Contractor. Such arrangements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Client alone is responsible for the technical maintenance and currentness of the websites after acceptance. The Contractor shall not be liable to the Client for any security vulnerabilities that are exploited for unlawful purposes by third parties as a result of using outdated third-party software (hacking).
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 Client maintenance and support services with regard to the websites (hereinafter “maintenance contracts”). The Contractor may also offer maintenance for third-party websites. However, the Contractor is not obliged to provide such an offer, nor is the Client required to make use of the Contractor’s additional service offers. Such arrangements are exclusively the subject of individual agreements.
2.3.2 The content of maintenance contracts is the elimination of malfunctions and the occasion-related updating of the website for common web browsers in their current versions. Further services, such as regular maintenance, may be agreed individually.
2.3.3 The Contractor shall not be liable for malfunctions and incompatibilities caused by unauthorized changes by the Client or due to other errors that are not within the Contractor’s area of responsibility; the provisions under “Liability/Indemnification” remain unaffected.
2.3.4 Unless otherwise agreed, maintenance shall cover only the technical and not the editorial updating of the website. Subject to individually agreed deviations, the Contractor shall not be obliged, in particular, to update the imprint (impressum) or the privacy policy.
PART 3 – GRAPHIC AND DESIGN SERVICES
3.1 CONTRACT CONTENT AND SUBJECT MATTER
3.1.1 The Contractor offers the Client graphic and design services. The specific scope of services results from the individual contract between the Contractor and the Client.
3.1.2 Unless otherwise agreed, contracts concluded between the Contractor and the Client are contracts for services (§ 611 BGB).
3.1.3 If the subject of the contract is the creation of new graphic and/or design services, this is generally a contract for work and services (§§ 631 et seq. BGB).
3.1.4 The Contractor’s services may, in particular, include:
conception and development of corporate designs,
design of print products (e.g. brochures, flyers, business cards),
design of digital products (e.g. banners, social media graphics, presentation templates),
other creative services, depending on the individual agreement.
3.2 CLIENT’S DUTIES TO COOPERATE
3.2.1 The Client undertakes to provide the Contractor in due time with all data and works (e.g. texts, templates, graphics, logos) required for the implementation of the order in a suitable form.
3.2.2 The Contractor shall not be liable for errors that occur due to incorrect, incomplete, delayed, or subsequently changed information or materials provided by the Client.
3.3 ACCEPTANCE
3.3.1 If the contractual relationship qualifies as a contract for work and services (§§ 631 et seq. BGB), the Contractor may demand acceptance of the work from the Client after completion. Acceptance may not be refused due to insignificant defects.
3.3.2 If acceptance is delayed through no fault of the Contractor, acceptance shall be deemed to have taken place after the expiry of a period of 14 days from the notification of completion.
3.4 RIGHTS OF USE
3.4.1 The Contractor grants the Client the rights of use to the works created within the framework of the contract only to the extent that this has been expressly agreed. In case of doubt, only a simple right of use shall be granted.
3.4.2 Unless otherwise agreed, the rights of use shall only be transferred to the Client upon full payment of the agreed fee.
3.4.3 Proposals, instructions and other cooperation by the Client do not constitute joint copyright and do not affect the amount of the remuneration.
3.5 LIABILITY FOR DEFECTS
3.5.1 If the contract is a contract for work and services (§§ 631 et seq. BGB), the Contractor shall be liable for material and legal defects only in accordance with the statutory provisions, unless otherwise agreed.
3.5.2 If the contract is a contract for services (§ 611 BGB), there shall be no liability for defects; the statutory provisions on service contracts shall apply.
PART 4 – PHOTO, VIDEO, AND AUDIO SERVICES
4.1 CONTRACT CONTENT AND SUBJECT MATTER
4.1.1 The Contractor offers the Client services in the areas of photography, video production, and audio production. The specific scope of services results from the individual agreement between the Contractor and the Client.
4.1.2 Unless otherwise agreed, contracts concluded between the Contractor and the Client are generally contracts for services (§ 611 BGB).
4.1.3 If the subject of the contract is the creation of new works (e.g. photos, films, recordings), the contract qualifies as a contract for work and services (§§ 631 et seq. BGB).
4.1.4 The Contractor’s services may include, in particular:
photography (e.g. portraits, events, products),
video production (e.g. image films, event documentation, social media videos),
audio production (e.g. podcasts, interviews, sound design),
post-production (e.g. editing, color correction, sound mixing).
4.2 CLIENT’S DUTIES TO COOPERATE
4.2.1 The Client undertakes to provide the Contractor in due time with all information and materials necessary for the execution of the contract (e.g. schedules, locations, access rights, logos, product samples).
4.2.2 The Client is responsible for obtaining all necessary permits and consents for the performance of the services, unless otherwise agreed.
4.2.3 If persons are to be depicted, the Client is responsible for ensuring that the necessary model releases and/or declarations of consent are obtained, unless this has been expressly assigned to the Contractor.
4.3 ACCEPTANCE
4.3.1 If the contractual relationship qualifies as a contract for work and services, the Contractor may demand acceptance of the work from the Client after completion. Acceptance may not be refused due to insignificant defects.
4.3.2 If acceptance is delayed through no fault of the Contractor, acceptance shall be deemed to have taken place after 14 days from notification of completion.
4.4 RIGHTS OF USE
4.4.1 The Contractor grants the Client rights of use to the works created within the scope of the contract only to the extent expressly agreed. In case of doubt, only a simple, non-exclusive right of use shall be granted.
4.4.2 Unless otherwise agreed, the rights of use shall only be transferred to the Client after full payment of the agreed remuneration.
4.4.3 The Contractor shall remain entitled to use the works created for self-promotion (e.g. website, portfolio, social media), unless otherwise agreed with the Client.
4.5 LIABILITY FOR DEFECTS
4.5.1 If the contract qualifies as a contract for work and services, the Contractor shall be liable for material and legal defects only in accordance with the statutory provisions, unless otherwise agreed.
4.5.2 If the contract is a contract for services, liability for defects is excluded; the statutory provisions on service contracts shall apply.
PART 5 – GENERAL PROVISIONS
5.1 REMUNERATION AND PAYMENT TERMS
5.1.1 The amount of remuneration results from the individual agreement between the Contractor and the Client.
5.1.2 Unless otherwise agreed, all prices are net plus applicable statutory VAT.
5.1.3 Invoices are due for payment immediately upon receipt without deduction, unless otherwise agreed.
5.1.4 If the Client is in default of payment, the Contractor is entitled to charge statutory default interest. Further claims remain unaffected.
5.2 LIABILITY
5.2.1 The Contractor is liable without limitation in cases of intent and gross negligence as well as in the event of injury to life, body, or health.
5.2.2 In cases of slight negligence, the Contractor is liable only for the breach of an essential contractual obligation (cardinal duty). In this case, liability is limited to the foreseeable, typically occurring damage.
5.2.3 The Contractor is not liable for loss of profit, indirect damages, consequential damages, or loss of data, unless otherwise agreed.
5.2.4 The above limitations of liability also apply in favor of the Contractor’s employees, representatives, and vicarious agents.
5.3 TERMINATION
5.3.1 Ordinary termination of contracts for work and services is excluded. The right to extraordinary termination for good cause remains unaffected.
5.3.2 Contracts for services may be terminated in accordance with the statutory provisions (§ 621 BGB).
5.4 CONFIDENTIALITY
5.4.1 The parties undertake to maintain confidentiality regarding all confidential information obtained in connection with the execution of the contract.
5.4.2 This obligation remains in force beyond the termination of the contract.
5.5 FINAL PROVISIONS
5.5.1 Amendments and supplements to the contract must be made in text form unless a stricter form is prescribed by law.
5.5.2 Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall not be affected. The parties undertake to replace the invalid provision with one that comes closest to the economic purpose of the invalid provision.
5.5.3 The place of performance and jurisdiction is the Contractor’s registered office, provided the Client is a merchant, a legal entity under public law, or a special fund under public law.
5.5.4 German law applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).