General terms and conditions
1 Scope of application & contractual basis
- The following General Terms and Conditions (hereinafter referred to as “GTC”) in the version valid at the time of the order shall apply exclusively to the business relationship between UNTERNEHMENDIGITAL GmbH, represented by the Managing Director Fagus Pauly, with registered office at Mälzerstraße 3, 07745 Jena (hereinafter referred to as “Contractor”) and the Customer (hereinafter referred to as “Customer”). We do not recognise any conflicting, deviating or supplementary GTC, nor do they become part of the contract unless the Contractor has agreed to their validity in writing.
- An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her commercial or independent professional activity (§ 14 BGB).
- A consumer within the meaning of these GTC is any natural person who enters into a legal transaction for a purpose that can predominantly be attributed neither to his or her commercial nor to his or her independent professional activity (§ 13 BGB). Participants who take part in the seminars or coaching sessions via their employer are not consumers, because it is not they themselves who are the contractual partner of the organiser, but their employer.
2 Subject matter of the contract and conclusion of the contract
- The subject matter of this contract shall be the services expressed in the Contractor’s written quotations at the prices stated.
- The contract shall only come into existence through the transmission of his order in the form of an offer confirmation by the client. At the latest upon delivery of the goods or the service or an order confirmation, the text of the contract (consisting of the signed offer and the GTC) becomes binding for both parties. The sending of the invoice shall also be deemed to be an order confirmation.
3 Prices, payment, default of payment
- All offers of the contractor are subject to change and are, unless otherwise stated in writing, net price offers plus the applicable value added tax. We reserve the right to make subsequent price changes if delivery is made three months or more after order confirmation. This applies in particular if the market prices for materials increase and/or statutory and collectively agreed wage increases for the employees involved in the order become effective. In the event of obvious calculation or printing errors in the contractor’s price lists, offers and invoices, or in the event of erroneously incorrect prices, the contractor reserves the right to demand payment of the difference.
- The preparation of drafts is subject to a charge, unless a different arrangement has been communicated in writing.
- Remuneration for services shall be due after performance, remuneration for works shall be due after delivery in the case of contracts for work and services. If the work is performed over several months, monthly instalments shall be invoiced. If a work is created and delivered in parts, the corresponding partial fee shall be due upon delivery of the respective part.
- Unless expressly agreed otherwise in writing, an initial deposit of 25% shall be due at the time of commissioning for order values in excess of €3,000.00 net.
- If the order contains more than 25% third-party services, the Contractor shall additionally be entitled to invoice an advance payment, up to a maximum of the amount of these third-party services.
- In the event of default in payment of partial invoices, the Contractor may make the further execution of the order dependent on the receipt of the partial invoices.
- The Client may only set off or exercise a right of retention against an undisputed or legally established claim, and only from claims directly arising from this contract.
- Invoices are due within 10 calendar days from the invoice date without deduction, discount can only be claimed if it is expressly noted on the invoice.
- If the Client is in default for more than 4 weeks, the Contractor reserves the right to demand default interest in the amount of 5 percentage points above the applicable base rate, even without reminders. The right to prove higher damages caused by default is also reserved.
4 General cooperation obligations of the customer & acceptance
- For the execution of the contract, the customer shall appoint at least one competent contact person with an e-mail address and telephone number who is equipped with the possibilities and powers required for smooth execution.
- If a (partial) project service, which has been designated in writing by the Contractor as (partial) acceptance, is not accepted by the Client for more than 20 calendar days, the Contractor shall be entitled to settle the (partial) service and make it due (default of acceptance pursuant to §293ff. BGB).
- Acceptance shall be deemed to have taken place if the Client expresses this in writing or after 20 calendar days without any written statements on the part of the Client. If the Client expresses a wish to stop the project, it shall be obliged to accept partial services within the same period of time.
- If the Client delivers project-relevant supplies later than 20 calendar days from the written request by the Contractor, the Contractor shall be entitled to invoice partial services and to charge project delay costs of € 250.00 per month. Such a delay in delivery has the effect that bindingly agreed delivery dates lose their binding force.
- Only accepted works shall be transferred to the Client’s area of disposal (domain and web hosting of the Client or transfer on a data carrier).
- Change requests from the client after an acceptance are subject to a charge, within the service provision up to 2 correction loops are included in the offer price.
- For the media supplied by the client (texts, images, videos, white papers), it is the client’s responsibility to acquire or secure the rights thereto. If this circumstance is not specifically mentioned in the course of the project, the client declares that the rights of use of the copyright-relevant media are held by him or have been paid for and indemnifies the contractor internally against all claims for compensation by third parties.
- The client itself shall be responsible for the data protection review and integration into the client’s data protection concept. The client guarantees that software provided by the client complies with data protection law.
- For the correct execution of the services by the contractor, it is necessary on an order-related basis to provide the contractor with admin or write rights for web services. For social media sites, website and shop creation these are accesses to the web hosting account and admin access to the social media account, shop or CMS, for SEO services these are accesses to the web controlling account, the Google Search Console and for SEA services the accesses to the advertising account of the commissioned platform.
5 Rights of use
- The client shall be granted rights of use to all drafts, sketches, final artwork, layouts and web designs as well as any data provided, but shall not be transferred the rights of ownership.
- The Contractor grants all rights of use in this respect for all known and unknown types of use exclusively and in full to the Client without any restriction in terms of content, space or time. In particular, the granting of rights is not limited to uses on the Internet, but also includes exploitation in other ways, e.g. on radio and television, on CD-ROM, in print versions and in all other possible ways. The granting of rights of use shall also apply to rights which subsequently arise due to new legal situations or for other reasons.
- All rights are further transferable and sub-licensable by the client in whole or in part. However, the granting of rights shall only become effective pursuant to Section 158 (1) of the German Civil Code (BGB) when the client has paid the remuneration owed, including expenses to date, in full.
- The Client is entitled to evaluate websites, shops or service results that are the subject matter of the contract, also in connection with other works, to edit them, to subsequently change them, to supplement them, to expand them, to exchange or delete them in whole or in part, to redesign them himself or through other contractors, to disassemble them, to reassemble them or to translate them into other languages. In such cases, the contractor may demand that he no longer be named as the creator.
- Unless the Client objects in writing, the Contractor shall be entitled to integrate a reference in the form of a sentence and a link to its website in the Client’s imprint.
- If the Client does not object in writing, the order may be mentioned in the Contractor’s PR with the Client’s company named as a reference.
- The Contractor may register domains for the Client after written agreement. The domain holder is the Client. The contractor assumes no guarantee for the non-violation of third party rights (name, trademark or title rights) or the availability of the desired domain.
6 Warranty and liability
- The Contractor shall be liable for material defects in accordance with the applicable statutory provisions. The warranty period vis-à-vis entrepreneurs for work results delivered by the contractor is 12 months.
- Claims of the Client for damages are excluded. Excluded from this are claims for damages by the Client arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Contractor, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
- For defects in the functionality of a website or an automation setting according to the state of the art, the Contractor shall in principle be liable in accordance with the statutory provisions of §§ 633 et seq. BGB. He shall not be liable for complaints regarding the artistic design.
- In the event of simple negligence, the Contractor shall only be liable in the event of a breach of material contractual obligations or of the life, body or health of a person. This reduction of liability also applies to the fault of a vicarious agent within the meaning of § 278 BGB. Otherwise, liability in the case of simple negligence, with the exception of injury to life, body or health, shall be limited to compensation for foreseeable damage typical for the contract.
- The client shall accept the work results produced and inspect them for defects. The client must notify us in writing of obvious defects within 14 calendar days and of hidden defects within one year of discovery or receipt of the goods.
- For violations of competition law as well as similar violations based on the conception of the website or the automation settings, the contractor is only liable if they have arisen from his special design of the website and are based on ideas contributed by him. The contractor is not liable for violations inherent in a business model pursued by the client. In all other respects, the Contractor shall only be liable for infringements of the law if it was aware of the infringement and therefore breached its duty of disclosure.
- The contractor shall not be liable for the legal admissibility, in particular the admissibility under copyright, design or trademark law, of the intended use of works or service results. The contractor is only obliged to point out legal risks if these become known during the execution of the order.
7 Place of Performance, Jurisdiction & Final Provisions
- Place of performance is Mälzerstrasse 3, 07745 Jena.
- This contract is exclusively subject to the law of the Federal Republic of Germany. The contract shall be concluded in the German language.
- There are no verbal ancillary agreements. Amendments or supplements to this contract must be in writing in order to be effective; this requirement cannot be waived orally.
- Should individual provisions of this contract be or become invalid or contain loopholes, this shall not affect the validity of the remaining provisions. Instead of the invalid provision, that provision shall apply which the parties would have agreed upon in good faith according to the originally intended purpose from an economic point of view.
- If the Client is a commercial entrepreneur, a legal entity under public law or a special fund under public law, the Contractor’s place of business is agreed as the place of performance as well as the place of jurisdiction for all claims arising from the business relationship. This shall also apply to persons who do not have a general place of jurisdiction in Germany or persons who have moved their place of residence or habitual abode outside Germany after conclusion of the contract or whose place of residence or habitual abode is not known at the time the action is brought. In all other respects, the statutory provisions shall apply.
- This contract is subject to German law. The application of the “Uniform Law on the International Sale of Goods” and the “Uniform Law on the Formation of Contracts for the International Sale of Goods” as well as the “United Nations Convention on Contracts for the International Sale of Goods” is excluded.