General Terms and Conditions
of
Einmahl WebSolution GmbH
Peter-Welter-Platz 5
50676 Cologne, Germany
- hereinafter: Contractor -
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 enter into contracts with consumers or private individuals.
1.1.3 The Contractor is entitled to assign the required services to subcontractors in its own name and for its own account; these subcontractors may in turn engage further subcontractors. Unless otherwise agreed, the Contractor remains the sole contracting partner of the Client in this regard. Subcontractors will not be engaged where it is apparent to the Contractor that doing so would conflict with the Client's legitimate interests.
1.1.4 To the extent that, in addition to these 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 prevail over these Terms and Conditions in case of conflict.
1.1.5 The Contractor does not recognise any terms and conditions used by the Client that deviate from these Terms and Conditions, unless expressly agreed to.
1.2 Client's Duties to Cooperate
1.2.1 If the Client provides the Contractor with texts, images or other content for the performance of the commissioned services, the Client 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 noted that the Contractor is not legally authorised to provide legal advice to the Client. In particular, the Contractor is neither obliged nor legally able to review the Client's business model and/or works created or acquired by the Client itself (layouts, graphics, texts, etc.) for compliance with applicable law. In particular, the Contractor will not conduct any trademark searches or other checks for conflicting intellectual property rights in relation to works provided by the Client. Insofar as the Client issues specific instructions regarding the work to be produced, the Client shall be liable for these itself.
1.2.2 The Client is obliged to provide complete and correct information, data, works (e.g. the data for the legal notice, graphics, logos, etc.) and access credentials required to be provided by the Client for the purpose of fulfilling the order. The Client must further ensure that any instructions given comply with applicable law.
1.2.3 Unless otherwise agreed individually, the Client is itself responsible for procuring the material required to provide the agency services (e.g. graphics, videos) and shall make this available to the Contractor in good time. If the Client fails to provide such material and gives no further instructions, the Contractor may, at its own discretion and in compliance with copyright labelling requirements, use image material from common providers (e.g. stock photo services) or mark the relevant parts of the website with a placeholder.
1.2.4 If the conclusion of a data processing agreement pursuant to Art. 28 GDPR is required for individual components of the order, both contracting parties undertake to conclude such an agreement – to be provided by the Contractor – prior to the commencement of the provision of services.
1.2.5 The Contractor shall not be held responsible in any way towards the Client for delays and postponements in the implementation of projects caused by the Client's delayed (necessary) cooperation or contribution; the provisions under the heading "Liability/Indemnification" remain unaffected.
1.2.6 If the Client fails to comply with its duties to cooperate under this clause, the Contractor may invoice the Client for the additional expenses incurred as a result (e.g. costs for stock photos and time spent searching for them).
Part 2 – Online Presences and Technology
2.1 Website and Shop Creation (Agile)
2.1.1 Unless otherwise agreed individually, the creation of new websites/shops or the expansion of existing websites/shops or web/shop components (hereinafter "Website Creation") is carried out on the basis of agile methods. The remaining provisions of these Terms and Conditions remain unaffected.
2.1.2 The subject matter of website creation contracts between the Contractor and the Client is generally 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 within the meaning of Sections 631 et seq. of the German Civil Code (BGB).
2.1.3 The individually agreed services result from the contract concluded individually between the Contractor and the Client. To this end, the Client first submits a request to the Contractor with as precise a description as possible of the desired website content (design content such as images, layouts, logos, fonts, etc. must be determined and provided by the Client, unless otherwise agreed). This request constitutes an invitation for the Contractor to submit an offer. The Contractor will review the Client's ideas described in the request to the best of its knowledge for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency, and will prepare an offer on the basis of the wishes expressed in the Client's request. A contract between the Contractor and the Client is only formed once the Client accepts the offer.
2.1.4 The Client may submit change requests at any time, provided they are covered by the originally agreed scope of services. Such adjustments become part of the original contract if both contracting parties agree in text form (e.g. by email). Otherwise, the Contractor is only obliged to produce the functions/items listed in the contract or to provide the agreed service. Any additional services must be separately agreed and remunerated.
2.1.5 Once the website has been completed, the Contractor will request the Client to accept the website.
2.1.6 A precondition for the Contractor's work is that all data (e.g. texts, templates, graphics, fonts) and/or system environments to be provided by the Client and required for the implementation of the project are provided to the Contractor in good time and in a suitable form. The Contractor shall not be held responsible in any way towards the Client for delays and postponements in the implementation of projects caused by the Client's delayed (necessary) cooperation or contribution.
2.1.7 The review or procurement of rights, and the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if this has been expressly agreed individually. There is no entitlement to the handover of graphics, source code, (development) documentation, manuals or other supplementary documentation, unless expressly agreed otherwise individually.
2.1.8 Unless otherwise agreed, the created websites are optimised for the browsers Chrome, Safari, Firefox and Edge in their respective current versions (the last two versions of each browser). Search engine optimisation (SEO) is only owed if expressly agreed.
2.1.9 The Contractor is neither authorised nor obliged to advise the Client on competition, consumer protection, labelling or other legal matters within the meaning of the German Legal Services Act. It is therefore the Client's responsibility to inform itself of the competition, consumer protection or labelling regulations applicable to its shop and, where appropriate, to have the shop reviewed by a specialised lawyer.
2.1.10 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services in relation to the websites. However, the Contractor is neither obliged to make such an offer, nor is the Client obliged to make use of the Contractor's further service offerings. Corresponding agreements are exclusively subject to individual agreements. If no additional maintenance and support services are agreed between the parties, the Client alone is responsible, after acceptance, for the technical maintenance and up-to-dateness of the websites. The Contractor shall not be liable to the Client for any security vulnerabilities exploited for unlawful purposes (hacking) through the use of outdated third-party software.
2.2 Website and Shop Creation (Requirements and Functional Specifications)
2.2.1 Insofar as the contracting parties have agreed that the creation of new websites/shops or the expansion of existing websites/shops or web/shop components (hereinafter "Website Creation") is to be based on a requirements specification and functional specification, order processing shall be carried out in accordance with this clause.
2.2.2 The subject matter of website creation contracts between the Contractor and the Client is generally 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 within the meaning of Sections 631 et seq. BGB.
2.2.3 The scope of services to be provided by the Contractor is determined, on the one hand, by individual contractual agreements between the parties and, on the other hand, by a detailed requirements specification prepared by the Client, together with the functional specification based thereon. The Contractor will review the Client's ideas described in the requirements specification to the best of its knowledge for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency. Should the Contractor recognise that the specifications contained in the requirements specification are not suitable for the creation of a website, the Contractor will promptly inform the Client of this and submit an appropriate proposal for supplementing and/or adjusting the requirements specification. The Client must respond in writing or in text form to any proposals made by the Contractor regarding the requirements specification within a reasonable period and must ultimately confirm the content of the requirements specification to the Contractor in writing or in text form in a binding manner. Once the parties have reached agreement on the requirements specification, its content becomes part of the contract.
2.2.4 On the basis of the requirements specification, the Contractor prepares a functional specification, which primarily describes the technical and/or design implementation of the specifications contained in the requirements specification. Upon completion, the Contractor presents the functional specification to the Client for acceptance. The Client is entitled to reject the functional specification prepared by the Contractor and to communicate requests for changes or adjustments. The Contractor undertakes, taking the Client's wishes into account, to submit a maximum of two alternative proposals. If the Client ultimately does not agree with the Contractor's final proposal, either the Client or the Contractor may – where legally permissible – terminate the contractual relationship for good cause or withdraw from the contract. In this case, the fees and/or expenses incurred by the Contractor in connection with the requirements specification and/or functional specification must be appropriately 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 to have been finally agreed between the parties. Any deviation from the content of the functional specification accepted by the Client requires an express individual agreement between the parties. The Contractor does not provide any services beyond those described in the functional specification accepted by the Client. Likewise, the Contractor generally does not provide services of lesser scope than those described in the functional specification accepted by the Client. After the Client has accepted the functional specification, the Contractor develops and programmes the websites in compliance with the agreed specifications.
2.2.6 In addition to the functional specification, the Contractor provides the Client with a time and work schedule. The content and specifications of this time and work schedule become part of the contract unless the Client objects without delay. The Contractor undertakes to hand over the completed website or parts thereof to the Client on a suitable data carrier and/or to send it by email and/or to upload it to a server specified by the Client by the end date stated in the time and work schedule. The details of the handover or upload of the completed websites are otherwise subject to individual contractual agreements between the parties.
2.2.7 A precondition for the Contractor's work is that all data (e.g. texts, templates, graphics) and/or system environments to be provided by the Client and required for the implementation of the project are provided to the Contractor in good time and in a suitable form. The Contractor shall not be held responsible in any way towards the Client for delays and postponements in the implementation of projects caused by the Client's delayed (necessary) cooperation or contribution.
2.2.8 Once the website has been completed, the Contractor will request the Client to accept the website. If necessary, a test phase may be agreed prior to acceptance. If the Client identifies errors before acceptance or during an agreed test phase, the Client will report these to the Contractor in writing or in text form. The Contractor will endeavour to correct the errors properly. For this purpose, the Contractor may provide temporary workarounds.
2.2.9 The review or procurement of rights, and the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if this has been expressly agreed individually. There is no entitlement to the handover of graphics, source code, (development) documentation, manuals or other supplementary documentation, unless expressly agreed otherwise individually.
2.2.10 Unless otherwise agreed, the created websites are optimised for the browsers Chrome, Safari, Firefox and Edge in their respective current versions (the last two versions of each browser). Search engine optimisation (SEO) is only owed if expressly agreed.
2.2.11 The Contractor is neither authorised nor obliged to advise the Client on competition, consumer protection, labelling or other legal matters within the meaning of the German Legal Services Act. It is therefore the Client's responsibility to inform itself of the competition, consumer protection or labelling regulations applicable to its shop and, where appropriate, to have the shop reviewed by a specialised lawyer.
2.2.12 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services in relation to the websites. However, the Contractor is neither obliged to make such an offer, nor is the Client obliged to make use of the Contractor's further service offerings. Corresponding agreements are exclusively subject to individual agreements. If no additional maintenance and support services are agreed between the parties, the Client alone is responsible, after acceptance, for the technical maintenance and up-to-dateness of the websites. The Contractor shall not be liable to the Client for any security vulnerabilities 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 Client maintenance and support services in relation to the websites (hereinafter "Maintenance Agreements"). The Contractor may also offer maintenance of third-party websites. However, the Contractor is neither obliged to make such an offer, nor is the Client obliged to make use of the Contractor's further service offerings. Corresponding agreements are exclusively subject to individual arrangements.
2.3.2 The content of the Maintenance Agreements is the elimination of malfunctions as well as the occasion-related updating of the website for common web browsers in their respective current version. Further services, such as regular maintenance, may be individually agreed where applicable.
2.3.3 The Contractor shall not be liable for malfunctions and incompatibilities caused by unauthorised changes made by the Client or based on 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 covers only the technical, but not the content-related, updating of the website. Unless expressly agreed otherwise individually, the Contractor does not owe, in particular, the updating of the legal notice or the privacy policy.
2.4 Web Hosting
2.4.1 The Contractor also offers the Client the hosting of websites/shops created by it. The Contractor will use servers of third-party companies to fulfil its services. The Contractor will inform the Client about the servers and third-party companies used prior to conclusion of the contract. The specific scope of services (domain administration, storage space, email hosting, certificates, etc.) is subject to 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. This excludes periods during which the servers are unreachable due to events beyond the Contractor's control (force majeure, acts of third parties, technical problems outside the Contractor's sphere of influence, etc.).
2.4.3 It is the Client's responsibility to create regular backup copies of its hosted data. If the Client is unable to do so, it must engage the Contractor or other suitably qualified third parties to perform the backup. The Client is liable for any data loss resulting from inadequate data backup.
2.4.4 No content that is offensive, extremist, glorifying or trivialising violence, inciting hatred, right-wing extremist, discriminatory, unconstitutional, harmful to minors or pornographic, that infringes the rights of third parties (e.g. trademark and copyright) or other applicable law or good morals (in particular criminal law and regulatory offences law), or that contains malicious code or malware, may be stored on the storage space provided. If the Contractor becomes aware that impermissible content within the meaning of this paragraph may have been stored on the storage space provided in connection with the hosting, it will proceed as follows:
2.4.4.1 The Contractor will promptly conduct a cursory review of the relevant content. If the cursory review indicates that impermissible content cannot be ruled out, the Contractor may, at its own discretion, provisionally block it or take other measures appropriate to the risk situation, up to and including deletion of the content. The Contractor will request the Client to comment and will grant a reasonable period for doing so.
2.4.4.2 Once the Client's comments have been received, or if the Client has not submitted any comments within the period granted, the Contractor will make a final decision on how to deal with the content in question. The following measures, in particular, may be considered: warning; indefinite blocking or permanent deletion of the content; temporary suspension of the Client (alternatively, a partial suspension may also be carried out); ordinary or extraordinary termination of the contract; criminal complaint or report to the regulatory authority (if a criminal offence is at issue that may pose a danger to a person's life, limb or safety, the Contractor is legally obliged to report it). The Contractor will only take the respective measure after a thorough and objective weighing-up, taking into account in particular the severity of the infringement, the total number of infringements, potential effects on the services provided by the Contractor, its clients and other third parties, overall conduct (e.g. insight into the infringement shown), fault (intent, negligence), the motives for the infringement (where discernible), and the Client's statement (if any).
2.4.4.3 The Contractor will inform the Client of the assessment, its outcome and the measures decided upon, insofar as no legal reasons preclude this.
2.4.4.4 The Contractor will not proactively review the stored content and – unless stated otherwise – will not conduct any automated checks of the stored content. However, it will take action as soon as it itself becomes aware of such content or is informed of such content by third parties. If the Client becomes aware of such content, it may of course contact the Contractor at any time; for this purpose, it may use the contact details in the legal notice.
Part 3 – Creation and Design of Content
3.1 Design of Print Products
3.1.1 The subject matter of print design contracts between the Contractor and the Client is generally the development of print products according to the Client's design specifications (e.g. the design of banners, poster graphics, posters, signs, flyers, roll-ups, vehicle or shop window graphics, textiles or logo designs). Design contracts concluded between the parties are contracts for work within the meaning of Sections 631 et seq. BGB.
3.1.2 The individually agreed services result from the contract concluded individually between the Contractor and the Client. To this end, the Client first submits a request to the Contractor with as precise a description as possible of the desired services. This request constitutes an invitation for the Contractor to submit an offer. The Contractor will review the Client's ideas described in the request to the best of its knowledge for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency, and will prepare an offer on the basis of the wishes expressed in the Client's request. A contract between the Contractor and the Client is only formed once the Client accepts the offer.
3.1.3 After conclusion of the contract, the Client's requirements are discussed in a further briefing if necessary and the specifications are made more concrete. At this point, change requests may be submitted, provided they are covered by the originally agreed scope of services. Where necessary, a re-briefing is possible before production of the item to be delivered. Adjustments become part of the original contract if both contracting parties agree in text form (e.g. by email). Otherwise, the Contractor is only obliged to produce the items listed in the contract. Any additional services must be separately agreed and remunerated.
3.1.4 Unless otherwise agreed, the Client is entitled to two rounds of corrections. Complaints regarding the artistic design are, in principle, excluded after the agreed rounds of corrections have been carried out. If the Client requests further changes beyond this, it must bear the additional costs.
3.1.5 A precondition for the Contractor's work is that the Client provides the Contractor, prior to commencement of the order, with all data required for implementation of the project (texts, templates, graphics, etc.) completely and in a suitable form. The Contractor shall not be held responsible in any way towards the Client for delays and postponements in the implementation of projects caused by the Client's delayed (necessary) cooperation or contribution. If the Client fails to fulfil this obligation, the Contractor may invoice the Client for the time expended as a result.
3.1.6 Unless otherwise contractually agreed and unless otherwise to be expected from the purpose of the contract, the Contractor owes, in addition to the contractually agreed deliverables for the creation of print products, only the handover of a common print file (e.g. PDF, JPG or PNG). The Client has no entitlement to the handover of an editable file (e.g. open files from graphics programs).
3.2 Processing of Print Orders
3.2.1 The Contractor offers the Client the processing of orders for the creation of print products (flyers, brochures, posters, catalogues, etc.). The Contractor undertakes all actions agreed for this purpose, e.g. communication with the respective service provider carrying out the printing (printing service provider). Depending on the agreement, the Contractor offers these services as a direct transaction or as a brokerage transaction.
3.2.2 If the parties agree on a direct transaction, the Contractor either prints the commissioned print products itself or commissions a printing service provider in its own name and for its own account. In this case, the Client's sole contracting partner is the Contractor. No contractual relationship arises between the Client and the printing service provider. The Contractor invoices the Client directly for the print products. The Client accepts the print products from the Contractor.
3.2.3 If the parties agree on a brokerage transaction, the Contractor concludes the contract for the creation of the print products with the printing service provider in the name and for the account of the Client, or brokers such a contract. The Contractor acts towards the printing service provider purely as a broker. The contractual relationship arises solely between the Client and the printing service provider. The Contractor is not a party to this contract. The Contractor informs the Client of all material steps and coordinates with the Client regarding the details of the contract's content and conclusion (in particular regarding type, prices and quantities) and is bound by the Client's instructions. The respective prices and/or terms and conditions of the printing service provider apply. The Client pays for the services directly to the printing service provider. Acceptance of the print products takes place vis-à-vis the printing service provider. It is the Client's responsibility to check the completed print products for defects. The Contractor is not liable for the printing service provider's production of the print products in accordance with the contract, in particular not for their content, condition, quality and/or nature. In the event of a dispute, the Contractor will provide the Client with all necessary information, insofar as legally permissible. The Contractor does not owe any further support in asserting warranty or other claims. The provisions under "Liability/Indemnification" remain unaffected.
3.2.4 The Client is obliged to carefully check the print data to be transmitted for content and technical accuracy and completeness before transmitting it to the printing service provider. Unless otherwise agreed, the Contractor does not check the print data for content or technical accuracy. Printing of the commissioned print products only takes place once the Client has given final print approval.
3.2.5 If a specific transmission format is required (e.g. PDF, InDesign), the Client will transmit the print data in this format.
3.3 Creation of Texts / Copywriting
3.3.1 The Contractor creates texts for the Client, among other things (e.g. press releases, website content, advertising copy, etc.). The content of these texts is determined individually by contract.
3.3.2 Once the agreed texts have been completed, the Contractor will submit them to the Client for approval and acceptance. Unless otherwise agreed, the Client is entitled to two rounds of corrections. Complaints regarding stylistic design or the inclusion of new information in the text are, in principle, excluded after the second round of changes. If the Client requests further changes beyond this, it must bear the additional costs.
3.3.3 If the Contractor has been commissioned with publication, the texts will, unless otherwise agreed, only be published after approval by the Client; approval simultaneously constitutes acceptance of the texts. For press releases, a distribution date on which they are to be sent to the media is also set following approval. If the Client itself publishes or is to publish the texts, the Client must accept the texts in advance. If the Client publishes the texts before acceptance, publication is deemed to constitute acceptance.
3.3.4 For errors discovered after approval/acceptance, the Contractor shall be liable exclusively in accordance with the provisions under the heading "Liability/Indemnification".
3.4 Design and Conception of Graphics and Logos (Designs)
3.4.1 By agreement with the Client, the Contractor undertakes the conception and design of graphics and/or logos (hereinafter "Designs").
3.4.2 To this end, the Client first submits a request to the Contractor with as precise a description as possible of the desired designs. This request constitutes an invitation for the Contractor to submit an offer. The Contractor will review the Client's ideas described in the request to the best of its knowledge for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency, and will prepare an offer on the basis of the wishes expressed in the Client's request. A contract between the Contractor and the Client is only formed once the Client accepts the offer.
3.4.3 A precondition for the Contractor's work is that the Client provides the Contractor, prior to commencement of the order, with all data required for implementation of the project (colour definitions, etc.) completely and in a suitable form. If the Client fails to fulfil this obligation, the Contractor may invoice the Client for the time expended as a result.
3.4.4 Unless otherwise agreed, the Client is entitled to two rounds of corrections for each individual design. After these rounds of corrections have been carried out, requests for adjustments and complaints (in particular regarding the artistic design) will no longer be considered. If the Client requests further changes after the agreed rounds of corrections have been carried out, the Contractor may prepare these for the Client against a separately agreed fee.
3.4.5 Once the agreed design has been completed, the Contractor will request the Client to accept the work. The designs will be sent to the Client in a common file format.
3.4.6 The Contractor grants the Client the rights of use required for the respective purpose in the designs. Unless otherwise stipulated, an exclusive right of use unlimited in time, place and content is granted for the creation of logos; however, individual graphic elements of the logos may be used for the creation of other works, provided this does not create a risk of confusion with the created logo. For all other designs, a simple right of use is granted, unless otherwise agreed individually. Any transfer of the rights of use by the Client to third parties requires an individual agreement with the Contractor. Drafts presented within the correction round may not be used, reproduced or passed on to third parties by the Client, either in original or modified form, without the Contractor's express consent.
3.4.7 The rights of use pass to the Client only after full payment of the remuneration.
Part 4 – Marketing
4.1 SEO Marketing
The Contractor offers the Client, among other things, services in the field of SEO marketing. In the course of providing these services, the Contractor owes exclusively the implementation of measures which, in the Contractor's own experience, may positively influence search engine ranking, or which are expressly instructed by the Client. This constitutes 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), on the other hand, is only owed as part of the SEO services if this has been expressly guaranteed.
Part 5 – Miscellaneous Provisions
5.1 Prices and Remuneration
Remuneration for the Contractor's services is subject to individual contractual agreement between the parties and is generally based on the offer.
5.2 Acceptance
Insofar as a service constituting a work has been agreed, the Contractor will request the Client to grant acceptance. The acceptance period within the meaning of Section 640 (2) sentence 1 BGB is set at 2 weeks from the request for acceptance, unless, due to particular circumstances in an individual case, a different acceptance period is required, which the Contractor will communicate separately to the Client in such a case. If the Client does not respond within this period or does not refuse acceptance due to a defect, the work shall be deemed accepted.
5.3 Warranty for Defects
An immaterial defect does not give rise to any 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, limb or health caused by the Contractor. The limitation period does not begin anew if subsequent performance is provided as part of the warranty for defects. In all other respects, the statutory warranty for defects remains unaffected.
5.4 Granting of Rights, Self-Promotion and Right of Reference
5.4.1 After full payment of the order by the Client, the Contractor generally grants the Client a simple, non-transferable right of use to the relevant work results. Further rights may be agreed individually by contract.
5.4.2 Unless otherwise agreed, the Client expressly grants the Contractor permission to publicly present the project in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, the Contractor is entitled to advertise the business relationship with the Client and to identify itself as the creator on all advertising materials produced and in all advertising measures, without the Client being entitled to any remuneration for this.
5.4.3 Furthermore, the Contractor is entitled to place its own name, with a hyperlink, in an appropriate manner in the footer and in the legal notice of the website(s) created by the Contractor, without the Client being entitled to any remuneration for this.
5.5 Confidentiality
The Contractor will treat all business matters that come to its knowledge, in particular but not exclusively print materials, layouts, storyboards, figures, drawings, audio tapes, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and other such documents containing films and/or audio productions and/or other copyright-protected materials of the Client or affiliated companies, as strictly confidential. The Contractor undertakes to impose the obligation of confidentiality on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, sound studios, etc.) who have access to the aforementioned business matters. The confidentiality obligation applies indefinitely beyond the duration of this contract.
5.6 Liability/Indemnification
5.6.1 The Contractor shall be liable without limitation, on any legal basis, for intent or gross negligence, for intentional or negligent injury to life, body or health, on the basis of a guarantee given, unless otherwise provided in this regard, or on the basis of mandatory liability, such as under the Product Liability Act. If the Contractor negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for this type of contract, unless liability is unlimited pursuant to the preceding sentence. Material contractual obligations are obligations which the contract imposes on the Contractor according to its content in order to achieve the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place, and on the observance of which the Client may regularly rely. In all other respects, the Contractor's liability is excluded. The foregoing liability provisions also apply with regard to the Contractor's liability for its vicarious agents and legal representatives.
5.6.2 The Client shall indemnify the Contractor against any third-party claims asserted against the Contractor due to the Client's infringements of these Terms and Conditions or of applicable law.
5.7 Final Provisions
5.7.1 Contracts concluded between the Contractor and the Client are subject to the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
5.7.2 If the Client 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 Contractor's registered office shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction remain unaffected.
5.7.3 The Contractor is entitled to amend these Terms and Conditions for objectively justified reasons (e.g. changes in case law, legislation, 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 amendment takes effect. If an existing customer does not object within the period set in the notification of amendment, its consent to the amendment shall be deemed to have been given. If the customer objects, the amendments shall not take effect; in this case, the Contractor is entitled to terminate the contract for good cause with effect from the date the amendment would have taken effect. The notification of the intended amendment to these Terms and Conditions will indicate the period and the consequences of an objection or the failure to object.