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General terms and conditions  from

 

wirkungswerk GmbH & Co. KG

Main street 127

68259 Mannheim

 

- hereinafter: wirkungswerk GmbH & Co. KG -

  1. General
    • These General Terms and Conditions (GTC) apply to all contracts concluded between wirkungswerk GmbH & Co. KG and the client.
    • wirkungswerk GmbH & Co. KG offers the customer, among other things, services in the area of website and software creation or development (including maintenance and care). The specific scope of services is subject to individual agreements between wirkungswerk GmbH & Co. KG and the customer.
    • wirkungswerk GmbH & Co. KG does not conclude contracts with consumers or private individuals.
    • wirkungswerk GmbH & Co. KG shall be entitled to subcontract the necessary services in its own name and for its own account to subcontractors, who in turn may also use subcontractors. wirkungswerk GmbH & Co. KG shall remain the sole contractual partner of the client. Subcontractors shall not be used if it is evident to wirkungswerk GmbH & Co. KG can see that their use is contrary to the legitimate interests of the client.
    • The contracting parties undertake to each appoint a contact person who will accompany the respective order and who is authorised to issue legally binding declarations of intent.
    • Terms and conditions deviating from these terms and conditions and used by the customer shall not be recognised by wirkungswerk GmbH & Co. KG - subject to express consent - shall not be accepted.

 

  1. Cooperation obligations of the customer
    • If the customer provides wirkungswerk GmbH & Co. KG provides texts, images or other content, the client must ensure that this content does not violate the rights of third parties (e.g. copyrights) or other legal standards. In this context, it is pointed out that wirkungswerk GmbH & Co. KG is not entitled by law to provide legal advice to the client. wirkungswerk GmbH & Co. KG is in particular not obliged and legally not in a position to check the client's business model and/or the works (layouts, graphics, texts, etc.) created or acquired by the client himself/herself for their compatibility with applicable law. wirkungswerk GmbH & Co. KG shall in particular not carry out any trademark searches or other property right collision checks with regard to the works provided by the client. Insofar as the customer issues specific instructions with regard to the work to be produced, he shall be liable for this himself.
    • The customer is obliged to provide complete and correct information, data, works (e.g. the data for the imprint, graphics, etc.) and accesses provided by him for the purpose of fulfilling the order. He shall also ensure that the instructions he gives are in accordance with the applicable law.
    • Subject to deviating individual agreements, the customer shall be responsible for procuring the material for the design of the websites/apps (e.g. graphics, videos) and shall provide these to wirkungswerk GmbH & Co. KG in due time. If the customer does not provide these and does not make any further specifications, wirkungswerk GmbH & Co. KG may, at its own discretion, use image material of common providers (e.g. stock photo service providers) or provide the corresponding parts of the website with a placeholder, taking into account the copyright labelling requirements.
    • Insofar as the conclusion of a contract processing agreement pursuant to Art. 28 DSGVO is required for individual contract components, both contracting parties undertake to conclude such an agreement - to be provided by wirkungswerk GmbH & Co. KG - prior to the commencement of the provision of services.
    • For delays and delays in the implementation of projects caused by late (necessary) cooperation or additional work by the client, wirkungswerk GmbH & Co. KG shall not be responsible to the client in any respect.
    • If the client fails to comply with his obligations under this clause, wirkungswerk GmbH & Co. KG may charge the client for any additional expenses incurred as a result (e.g. costs for stock photos and time spent searching for them).

 

 

  1. Website creation with the help of agile methods
    • This paragraph applies to website creation using agile methods (without specifications and requirements). Unless individual agreements to the contrary have been made, the website creation is based on agile methods. SEO optimisation is only owed if it has been expressly agreed.
    • The object of website creation contracts between wirkungswerk GmbH & Co. KG 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 and services within the meaning of §§ 631 et seq. BGB.
    • Unless otherwise agreed, the websites / shops created shall be optimised for all common browsers in their most current versions (in each case the last two versions of the browser). Optimisation for mobile devices is only owed if this has been expressly agreed.
    • The services agreed in detail result from the individual contract concluded between wirkungswerk GmbH & Co. KG and the client. For this purpose, the client first submits an inquiry to wirkungswerk GmbH & Co. KG with as precise a description as possible of the website content desired by the client (creative content such as images, layouts, logos, etc. must be specified and provided by the client). This enquiry constitutes an invitation to submit an offer by wirkungswerk GmbH & Co. KG. wirkungswerk GmbH & Co. KG shall examine the client's ideas described in the enquiry to the best of its knowledge and belief as to completeness, suitability, unambiguity, feasibility and freedom from contradiction and shall prepare an offer on the basis of the wishes arising from the client's enquiry. Only upon acceptance of the offer by the customer shall a contract be concluded between wirkungswerk GmbH & Co. KG and the customer is concluded.
    • The testing or procurement of rights, the procurement of tools (e.g. statistics) or certificates (e.g. SSL / TLS) or the provision of development, application or other documentation shall only be provided by wirkungswerk GmbH & Co. KG only if this has been expressly agreed in an individual contract.
    • The customer may access the development site at any time and introduce customer requests, provided that 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 (i.e. e.g. by email, fax or similar). Apart from that, wirkungswerk GmbH & Co. KG shall only be obliged to produce the functions/items listed in the contract or to provide the agreed service (e.g. maintenance). Any additional services must be agreed and remunerated separately.
    • After acceptance of the offer, the client shall receive from wirkungswerk GmbH & Co. KG, the format and contents of which are selected by wirkungswerk GmbH & Co. KG at its own discretion; there is no entitlement to specific design elements or functions. Unless otherwise agreed, the client shall be entitled to two correction loops. Complaints regarding the artistic design are generally excluded. If the customer wishes to make further changes, he shall bear the additional costs. After written approval of the design proposal, possible costs of corrections to the basic layout and page structure shall be borne by the customer.
    • As soon as the website has been completed, wirkungswerk GmbH & Co. KG will request the client to accept the website. From this point on, the client is responsible for the operation, in particular security and function updates as well as security copies.
    • A prerequisite for the activities of wirkungswerk GmbH & Co. KG is that the client provides all data required for the implementation of the project (texts, templates, graphics, etc.) to wirkungswerk GmbH & Co. KG in a suitable form prior to the commencement of the order. If the client fails to comply with this obligation, wirkungswerk GmbH & Co. KG may charge the client for the time spent on this.
    • The remuneration for the website creation is the subject of an individual contractual agreement between the parties. In all other respects, the statutory provisions shall apply.
    • If the customer does not use hosting services for the new website provided by wirkungswerk GmbH & Co. KG for the new website, but rather third-party providers, wirkungswerk GmbH & Co. KG assumes no responsibility for the respective servers and their configuration, the data lines and/or the accessibility of the website.

 

  1. Special provisions for the maintenance of websites
    • After completion of the website and/or individual parts thereof, wirkungswerk GmbH & Co. KG may offer the customer maintenance and servicing services in relation to the website. wirkungswerk GmbH & Co. KG may also offer maintenance of third-party websites. However, neither wirkungswerk GmbH & Co. KG is obliged to make such an offer, nor does the customer have to make use of the further services offered by wirkungswerk GmbH & Co. KG to make use of such services. Corresponding agreements are exclusively subject to individual arrangements.
    • The content of the maintenance contracts is the elimination of malfunctions as well as the event-related updating of the website for common web browsers in their respective current version. Further details, such as regular maintenance, can be agreed upon in individual contracts.
    • A prerequisite for maintenance is that the content to be maintained is compatible with the systems of wirkungswerk GmbH & Co. KG are compatible. Compatibility may be impaired in particular by outdated components of the content to be maintained or by unauthorised changes on the part of the customer. If compatibility is not guaranteed, the customer must establish it independently (e.g. by means of appropriate updates) or commission wirkungswerk GmbH & Co. KG separately with the establishment of compatibility.
    • wirkungswerk GmbH & Co. KG shall not be liable for malfunctions and incompatibilities caused by unauthorised changes made by the customer or based on other errors that are not the responsibility of wirkungswerk GmbH & Co. KG; the provisions under "Liability and indemnification" remain unaffected.
    • Subject to deviating agreements, the maintenance only includes the technical updating of the website, but not the updating of its content. wirkungswerk GmbH & Co. KG is in particular not responsible for updating the imprint or the data protection declaration.

 

 

  1. Web hosting and domain registration
    • wirkungswerk GmbH & Co. KG also offers hosting and domain registration services to the customer - in particular as an additional option within the scope of website creation. The specific scope of services (domain registration, storage space, certificates, etc.) is subject to individual agreements between the parties. wirkungswerk GmbH & Co. KG is entitled to use services of third parties in any form in connection with the execution of hosting services.
    • Unless otherwise agreed, wirkungswerk GmbH & Co. KG shall be responsible for the administration and management of the data in the event that it is commissioned as a hoster. As a matter of principle, the customer shall not be granted access to the administration backend of the hosting system.
    • The availability of the servers used by wirkungswerk GmbH & Co. KG for hosting purposes is at least 99% on an annual average. Excluded from this are those times during which the servers are not accessible due to events beyond the control of wirkungswerk GmbH & Co. KG (force majeure, actions of third parties, technical problems, etc.).
    • Unless otherwise agreed, the customer has no claim to the allocation of a fixed IP address for his Internet presence. Technical or legal changes are possible at any time and remain reserved.
    • The client is obliged not to disclose his passwords and other access data - insofar as such have been provided to him by wirkungswerk GmbH & Co. KG - to third parties and to change them regularly. The customer is responsible for any misuse by third parties, insofar as the customer is responsible for such misuse.
    • The customer is obliged to make regular back-up copies of its hosted data. If the customer is not in a position to do so, he shall commission wirkungswerk GmbH & Co. KG or other professionally suitable third parties with the backup. The customer shall be liable for any data loss that occurs due to insufficient data backup.
    • If the client makes use of domain registration services of wirkungswerk GmbH & Co. KG, the following shall apply in addition:
      • The contractual relationship required for the registration of the respective domain is established directly between the customer and the respective domain registry or registrar. wirkungswerk GmbH & Co. KG will only act as an intermediary in the relationship between the customer and the registry, without having any influence of its own on the allocation of the domain.
      • The customer shall bear full responsibility for ensuring that the domain requested by him does not infringe any third-party rights. A review of the domain is not owed.
      • For the registration of domains, the respective terms and conditions of the individual registries shall apply in addition. wirkungswerk GmbH & Co. KG will point out any special features to the customer in the event of an intended registration.

 

  1. Print
    • The object of design contracts in the print sector between wirkungswerk GmbH & Co. KG and the client is basically the development of the client's design specifications for print products (e.g. design of banners, post graphics, posters, flyers, vehicle or shop window stickers, textiles or logo designs). Design contracts concluded between the parties are contracts for work and services within the meaning of § 631 ff. BGB. A deviating scope of services can be agreed between the parties in an individual contract.
    • The services agreed in detail result from the individual contract concluded between wirkungswerk GmbH & Co. KG and the client. For this purpose, the client first submits an inquiry to wirkungswerk GmbH & Co. KG with as precise a description as possible of the design services desired by the client. This enquiry constitutes an invitation to submit an offer by wirkungswerk GmbH & Co. KG. wirkungswerk GmbH & Co. KG will check the client's ideas described in the enquiry 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)The customer shall check the offer, its unambiguousness, feasibility and consistency and prepare an offer on the basis of the wishes arising from the customer's enquiry. A contract between wirkungswerk GmbH & Co. KG and the client is concluded.
    • After the contract has been concluded, the client's requirements are discussed in a further briefing, if necessary, and the specifications are concretised. At this point, customer requests can be made, provided they are covered by the originally agreed scope of services. If necessary, there is the possibility of a re-briefing prior to the production of the object of performance. Adjustments shall become part of the original contract if both parties to the contract agree in text form. Otherwise, wirkungswerk GmbH & Co. KG is only obliged to produce the items listed in the contract. Any additional services must be agreed and remunerated separately.
    • As soon as the agreed object of performance has been completed, wirkungswerk GmbH & Co. KG will request the client to accept the work.
    • Unless otherwise agreed, the client is entitled to two correction loops. Complaints regarding the artistic design are generally excluded. If the client wishes to make further changes, he shall bear the additional costs.
    • A prerequisite for the activities of wirkungswerk GmbH & Co. KG is that the client provides wirkungswerk GmbH & Co. KG with all data required for the implementation of the project (texts, templates, graphics, etc.) in full and in a suitable form before the start of the order. KG completely and in a suitable form before the start of the order. wirkungswerk GmbH & Co. KG shall not be liable to the client in any way for delays and delays in the implementation of projects caused by late (necessary) cooperation or additional work on the part of the client. KG shall not be liable to the client in any respect. If the client does not comply with this obligation, wirkungswerk GmbH & Co. KG may charge the client for the time spent as a result.
    • The remuneration shall be the subject of an individual contractual agreement between the parties. In all other respects, the statutory provisions shall apply.
    • Unless otherwise contractually agreed and not to be expected otherwise from the purpose of the contract, wirkungswerk GmbH & Co. KG only owes the delivery of a print file (e.g. PDF, JPG or PNG) for the creation of print products in addition to the contractually agreed subjects of performance. The client shall not be entitled to receive an editable file (e.g. Word).

 

  1. Video and photography
    • wirkungswerk GmbH & Co. KG creates professional videos and photographs for its clients. The services agreed in detail result from the individual contract concluded between wirkungswerk GmbH & Co. KG and the client. For this purpose, the client first submits an inquiry to wirkungswerk GmbH & Co. KG with as precise a description as possible of the services desired by the client. This enquiry constitutes an invitation to submit an offer by wirkungswerk GmbH & Co. KG. wirkungswerk GmbH & Co. KG will check the client's ideas described in the enquiry to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with respect to the rights of third parties)The customer shall check the offer, its unambiguousness, feasibility and consistency and prepare an offer on the basis of the wishes arising from the customer's enquiry. A contract between wirkungswerk GmbH & Co. KG and the client is concluded.
    • The Client's specifications shall be taken into account to the best of the Client's knowledge and belief. The contracting parties acknowledge that the production of videos and photographs is a creative service that requires a high degree of artistic freedom. wirkungswerk GmbH & Co. KG therefore exclusively owes the creation of a work which, according to its own experience and assessment, corresponds to the wishes of the customer. Complaints regarding the artistic design are fundamentally excluded.
    • Unless otherwise agreed, the client is entitled to two correction loops. Complaints regarding the artistic design are generally excluded. If the client wishes to make further changes, he shall bear the additional costs.
    • If the client provides persons for the creation of the video or photographs (e.g. his employees or professional models), he is solely responsible for ensuring that the persons concerned have consented to the use of the recordings. In particular, he/she is responsible for concluding suitable model release agreements and obtaining DSGVO-compliant employee commitments.
    • As soon as the agreed object of performance has been completed, wirkungswerk GmbH & Co. KG will request the client to accept the work.
    • Unless otherwise agreed in an individual contract, wirkungswerk GmbH & Co. KG may demand that a suitable copyright notice be placed in an appropriate position on the works created.

 

  1. Logo creation
    • wirkungswerk GmbH & Co. KG shall create a logo/several logos (hereinafter "Logo") for its customers upon request. The services agreed upon in detail result from the individual contract concluded between wirkungswerk GmbH & Co. KG and the client. For this purpose, the client shall first submit to wirkungswerk GmbH & Co. KG with as precise a description as possible of the services desired by the client. This enquiry constitutes an invitation to submit an offer by wirkungswerk GmbH & Co. KG. wirkungswerk GmbH & Co. KG will check the client's ideas described in the enquiry to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with respect to the rights of third parties)The customer shall check the offer, its unambiguousness, feasibility and consistency and prepare an offer on the basis of the wishes arising from the customer's enquiry. A contract between wirkungswerk GmbH & Co. KG and the client is concluded.
    • The Client's specifications shall be taken into account to the best of the Client's knowledge and belief. The contracting parties acknowledge that the creation of logos is a creative service that requires a high degree of artistic freedom. wirkungswerk GmbH & Co. KG therefore exclusively owes the creation of a work which, according to its own experience and assessment, corresponds to the wishes of the customer. Complaints regarding the artistic design are fundamentally excluded.
    • Unless otherwise agreed, the client is entitled to two correction loops. Complaints regarding the artistic design are generally excluded. If the client wishes to make further changes, he shall bear the additional costs.
    • As soon as the agreed object of performance has been completed, wirkungswerk GmbH & Co. KG will request the client to accept the work.

 

  1. SEO marketing

wirkungswerk GmbH & Co. KG offers the customer, among other things, services in the field of SEO marketing. Within the scope of the provision of services, wirkungswerk GmbH & Co. KG exclusively owes the implementation of measures which, according to the own experience of wirkungswerk GmbH & Co. KG can positively influence the search engine ranking or which are expressly ordered by the client. This is a service within the meaning of §§ 611 ff. BGB (GERMAN CIVIL CODE). A specific result (e.g. a specific ranking in the Google hit list), on the other hand, is only owed within the scope of SEO services if this has been expressly assured. Marketing services can be cancelled by both contracting parties with a notice period of one (1) month.

 

  1. Prices and remuneration

The remuneration for website and/or online shop creation or for other orders is the subject of an individual contractual agreement between the parties and is generally based on the offer.

 

  1. Acceptance

Insofar as a work performance has been agreed, wirkungswerk GmbH & Co. KG may demand that the acceptance be made in writing; written acceptance shall only be owed if wirkungswerk GmbH & Co. KG requests the customer to do so. The acceptance provisions of the German Civil Code shall otherwise remain unaffected. The acceptance period within the meaning of Section 640 para. 2 sentence 1 of the German Civil Code (BGB) shall be set at 2 weeks from notification of completion of the work, unless a longer acceptance period is required in individual cases due to special circumstances, which wirkungswerk GmbH & Co. KG shall notify the client separately in this case. If the customer does not comment within this period or does not refuse acceptance due to a defect, the work shall be deemed to have been accepted.

 

  1. Warranty for defects

An insignificant defect shall not constitute grounds for claims for defects. The choice of the type of subsequent performance lies with wirkungswerk GmbH & Co. KG. The limitation period for defects and other claims shall be one (1) year; this shortening of the limitation period shall not apply to claims resulting from intent, gross negligence or injury to life, limb or health by wirkungswerk GmbH & Co. KG. The limitation period shall not start again if a replacement delivery is made within the scope of liability for defects. Otherwise, the statutory warranty for defects shall remain unaffected.

 

  1. Contractual term for continuing obligations

Subject to deviating provisions in and outside these GTC, continuing obligations (e.g. maintenance contracts) have a minimum term of 12 months. The period of notice is 3 months. If the contract is not terminated in due time at the end of the term, it shall be automatically extended by a further 12 months. The right to extraordinary termination for good cause remains unaffected.

 

  1. Granting of rights, self-promotion and right of mention
    • wirkungswerk GmbH & Co. KG grants the client - after full payment of the order by the client - in principle a simple right of use to the corresponding work results and/or the respective source codes at the time of their creation. Further rights can be agreed between the parties by means of an individual contractual agreement.
    • Unless otherwise agreed, the client grants wirkungswerk GmbH & Co. KG the express permission to present the project to the public in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, wirkungswerk GmbH & Co. KG shall be entitled to advertise its business relationship with the Client and to refer to itself as the author on all advertising material produced and in all advertising measures, without the Client being entitled to any remuneration for this.
    • Furthermore, wirkungswerk GmbH & Co. KG is entitled to place its own name with a link in an appropriate manner in the footer and in the imprint of the website(s) created by wirkungswerk GmbH & Co. KG's website(s) in an appropriate manner, without the Client being entitled to any remuneration for this.

 

  1. Confidentiality

wirkungswerk GmbH & Co. KG will keep all wirkungswerk GmbH & Co. KG, in particular, but not exclusively, print documents, layouts, storyboards, numerical material, drawings, tapes, pictures, videos, DVDs, CD-ROMs, interactive products and such other documents containing films and/or radio plays and/or other copyrighted materials of the client or its affiliated companies. wirkungswerk GmbH & Co. KG undertakes to impose the duty 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 transactions. The duty of confidentiality shall apply for an unlimited period of time beyond the duration of this contract.

 

  1. Liability / Indemnification
    • The liability of wirkungswerk GmbH & Co. KG for all damages is limited as follows: In the event of a slightly negligent breach of an essential contractual obligation ("cardinal obligation"), wirkungswerk GmbH & Co. KG shall be limited to the amount of the damage foreseeable at the time of the conclusion of the contract and typical for this type of contract. Cardinal obligations are obligations the fulfilment of which is a prerequisite for the proper performance of the contract and on the fulfilment of which a party may regularly rely. This limitation of liability shall not apply in the event of gross negligence or wilful misconduct or in the event of mandatory statutory liability, in particular in the event of the assumption of a guarantee or culpable injury to life, limb or health. The above liability provision shall also apply with regard to the liability of wirkungswerk GmbH & Co. KG for vicarious agents and legal representatives.
    • The client shall indemnify wirkungswerk GmbH & Co. KG from any claims of third parties that are asserted against wirkungswerk GmbH & Co. KG due to violations by the client of these GTC or of applicable law.

 

  1. Final provisions
    • The contracts concluded between wirkungswerk GmbH & Co. KG and the clients shall be governed by the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
    • 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 registered office of wirkungswerk GmbH & Co. KG as the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction remain unaffected.
    • wirkungswerk GmbH & Co. KG is entitled to amend these GTC for objectively justified reasons (e.g. changes in jurisdiction, legal situation, market conditions or business or corporate strategy) and subject to a reasonable period of notice. Existing customers will be notified of this by e-mail no later than two weeks before the change comes into force. If the existing customer does not object within the period set in the notice of change, his consent to the change shall be deemed to have been given. In the event of an objection, wirkungswerk GmbH & Co. KG shall be entitled to terminate the contract extraordinarily as of the effective date of the change. The notification of the intended amendment of these terms of use will refer to the deadline and the consequences of the objection or its absence.

 

Stand: December 2019