TERMS & CONDITIONS
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GENERAL TERMS AND CONDITIONS OF THE DAVIES MEYER GMBH (AS OF JANUARY 2020)
Scope
1. These General Terms and Conditions (“GTC“) apply to all services (each “Service“) of Davies Meyer GmbH, Spielbudenplatz 24-25, 20359 Hamburg (“Davies Meyer“), as far as no deviating terms and conditions of Davies Meyer apply or nothing else has been expressly agreed upon between the parties in individual cases.
2. Davies Meyer provides the services exclusively to contractual partners (each a “customer“), who are entrepreneurs in the sense of § 14 BGB (German Civil Code) or a legal entity under public law or special assets under public law. Davies Meyer or the customer shall hereinafter also be referred to individually as a “party” and jointly as the “parties“.
3. Conflicting, deviating or supplementary general terms and conditions of the customer shall not apply unless Davies Meyer expressly agrees to their validity. This shall also apply if Davies Meyer does not expressly object to the application of the customer’s general terms and conditions of business.
4. Any provisions, amendments or supplements deviating from this GTC must be made in writing.
5. The customer acknowledges that Davies Meyer has to cooperate partially with other agencies or service providers of the customer in order to provide the services. As far as the customer has his own contractual relationship with these agencies or service providers, the contractual obligations of Davies Meyer, which are agreed upon in this GTC, are not applicable to this own contractual relationship.
Offer, the conclusion of the contract
1. Offers from Davies Meyer are binding for the duration stated therein (acceptance period). If no period of acceptance is specified in the offer, Davies Meyer is bound to the offer for ten (10) calendar days from receipt of the offer by the customer.
2. A contract between the parties is concluded when the customer accepts the offer in writing (e-mail is sufficient).
Agreed scope of services and agreement on changes in services
1. The scope of the services to be provided by Davies Meyer is determined by contracts concluded in writing or by e-mail. Oral declarations or promises before the conclusion of the contract are replaced by the written or by e-mail concluded contract, as far as nothing else arises expressly from this contract.
2. Davies Meyer reserves the right to deviate from the offer documents or from the order confirmation by taking into account mandatory deviations caused by legal or technical standards.
3. Davies Meyer is not obliged, without a separate order, to check the customer’s task or service description or any other data or information provided by him for completeness or correctness, if there is no justified reason for this.
4. Davies Meyer only owes an extensive legal examination or also an examination of the correctness of the content of the factual statements contained in the given contents if this has been expressly agreed. In the case of a corresponding separate agreement, Davies Meyer commissions a legal examination with a lawyer, a content examination with an expert third party, or involves an authority responsible for the assessment. Davies Meyer will invoice the customer for the fees and costs incurred for an examination according to this clause.
Creation of websites
1. Davies Meyer always creates web pages as web version without deviating agreement and optimized for the at the time of creation usual browser types (at present Chrome and Edge) in their most used version at that time. The compatibility with other browsers or a mobile version is not owed if this was not explicitly agreed between the parties.
Campaign creation
1. If the customer commissions Davies Meyer with the creation of an advertising campaign, Davies Meyer uses generally accessible market research data as well as their own knowledge and experience from the advertising industry as a basis.
2. Davies Meyer only owes the creation of the advertising campaign to the best of his knowledge and belief, but not a certain advertising success.
3. The creation and/or implementation of an advertising campaign will be invoiced monthly at a flat rate or, in the absence of an agreement, at cost unless otherwise agreed between the parties.
Media planning and media implementation
1. Clauses 5.1 and 5.2 apply accordingly to the area of media planning and media implementation.
2. When carrying out media planning or media implementation services, high third-party costs (for example, but not exclusively, for the placement of advertising in social networks or social media) can arise. If these external costs exceed EUR 5,000.00 net in individual cases, Davies Meyer may make the placement of this advertising dependent on advance payment by the customer, the amount of which is determined by Davies Meyer in consideration of the external costs.
3. If a date desired by the customer for the placement of a particular advertisement cannot be kept because the customer has not made the advance payment according to item 6.2 or has not made it in time, Davies Meyer is not liable for possible consequences or damages resulting from this for the customer.
4. If a social network or a social medium does not place advertisements on the agreed date, although Davies Meyer has done everything necessary to place the advertisements, Davies Meyer is not liable for possible consequences or damages resulting from this for the customer.
Production of advertising material
1. If the services include the production of advertising material, Davies Meyer will award the respective production orders to a suitable advertising material manufacturer in its own name after approval by the customer. Smaller production orders with a value of less than EUR 2,000.00 net each do not require prior approval by the customer.
2. Davies Meyer receives, checks and settles the invoices of the advertising material manufacturer. The costs according to these invoices of the advertising material manufacturer will be invoiced by Davies Meyer to the customer again with a separate invoice or together with other services.
3. Unless otherwise agreed between the parties, Davies Meyer receives a fee amounting to 15% of the net value of these invoices from advertising material manufacturers. Davies Meyer will invoice this fee to the customer together with the costs for the service of the advertising material manufacturer.
4. If the costs for an advertising material production to be commissioned exceed EUR 5,000.00 net per case, Davies Meyer is entitled to make the commissioning of the advertising material production dependent on the advance payment of the gross order value by the customer.
Development services, software
1. For any form of development services within the scope of the services, Davies Meyer is not obliged to hand over the source code, unless and only as far as this is necessary according to relevant open source conditions.
2. If Davies Meyer makes recommendations for the use of hardware components or peripheral devices, the adaptation of peripheral devices not covered by this recommendation, provided by the customer or used at his request is not included in the scope of services. The adaptation can be very time and cost-intensive in individual cases.
Obligations of the customer to cooperate
1. The customer shall provide Davies Meyer with all data, information and documents required for the execution of the order.
2. The Customer shall adhere to agreed schedules and provide promptly requested feedback on details of the provision of the Services.
3. From time to time Davies Meyer submits drafts of services and parts of services to be published to the customer for examination and release before publication. The customer checks the submitted draft at least for the correctness of content, picture, sound and text as well as other elements if this is required by the type of draft and/or its planned use. The customer shall grant approval without delay if he does not legitimately request changes to the Service or part of the Service submitted for approval.
4. The customer is responsible for backing up the data on the customer‘s computers in a suitable form before installing software on the customer‘s computers or working on the customer‘s computers. In addition, the customer is also responsible for regularly making proper backup copies of his data.
5. In all other respects, the customer’s obligations to cooperate are based on the service agreed in each case.
6. The fulfillment of essential obligations to cooperate by the customer is a prerequisite for the scheduled provision of services by Davies Meyer. If additional expenses arise for Davies Meyer because the customer does not fulfill his obligations to cooperate or does not fulfill them properly, completely or in due time, Davies Meyer may invoice these additionally according to time and effort at the hourly rates valid at the time. The customer shall be entitled to prove lesser damage and Davies Meyer shall be entitled to assert a claim for damages exceeding this. If the expenditure increases because the customer does not fulfill his obligations to cooperate or only insufficiently fulfills them, agreed delivery dates can be postponed. In this case, the length of the postponement of the date shall be determined, in accordance with § 315, para. 3 BGB (German Civil Code), at the reasonable, judicially verifiable discretion of Davies Meyer.
7. The customer designates to Davies Meyer a contact person authorized to make decisions as well as a representative in case of absence of this contact person.
Dates
1. Dates for the provision of Davies Meyer’s services are only binding if Davies Meyer has expressly agreed on them with the customer as binding.
2. In the absence of a binding determination of the delivery and/or performance period, Davies Meyer shall determine the delivery and/or performance period at its reasonable, judicially verifiable discretion. The same applies accordingly to newly determined delivery and/or service periods in the case of delays for which Davies Meyer is not responsible.
General terms of payment
1. The prices agreed for the services ordered are decisive.
2. Davies Meyer shall invoice the customer for the services after completion or, in the case of work services, after acceptance (acceptance can also be implied), unless the parties have agreed otherwise in these GTC or in individual cases.
3. In the case of work services, which exceed a price of EUR 5,000.00 net or in the case of a separate agreement, Davies Meyer is entitled to invoice the customer for one-third of the agreed price immediately after the order has been placed, a further third after half of the service has been completed and the last third then after the service has been completed.
4. In the case of subsequently agreed on changes in performance, Davies Meyer is entitled to increase the prices accordingly and to charge the customer for all costs, which Davies Meyer incurs vis-à-vis third parties on the basis of the originally agreed scope of performance, but cannot cancel after the change in performance and therefore has to bear in vain. The fee for services, which are used beyond the agreed services, is calculated according to the price list valid between the parties at the time of use. In this respect, Davies Meyer will invoice the additional expenditure actually incurred on an hourly basis at the hourly rate agreed in the price list.
5. If the provision of a service is delayed for reasons for which the customer is responsible, Davies Meyer is entitled to charge the customer for all costs, which Davies Meyer has arranged in vain on the basis of the agreed scope of service.
6. Payments are due 14 calendar days after receipt of the invoice by the customer without deduction, in euros and plus value-added tax and any costs for transport and packaging.
7. If the customer defaults on a payment, Davies Meyer can demand a reminder fee of EUR 10.00 for each further reminder or step in the legal dunning procedure, in addition to the statutory default interest. The right to assert a claim for damages beyond this remains unaffected by this regulation.
8. Objections to Davies Meyer’s invoices must be raised in writing within eight (8) weeks after receipt of the invoice. The omission of timely objections is considered as approval. Mandatory legal claims after the expiry of the deadline remain unaffected by this.
9. GEMA fees or fees for other collecting societies shall be borne by the customer. If such fees and/or costs are disbursed by Davies Meyer by way of exception, the customer is obliged to reimburse them against proof. The obligation to refund can also arise after the period in which Davies Meyer provides services for the customer.
10. Unless otherwise agreed between the parties, Davies Meyer is entitled to invoice the customer for travel expenses separately. The settlement of travels in the own car is effected by a lump sum of EUR 0.51 per kilometre and the settlement of travels by train, plane or other publicly available means of travel is effected according to receipt. The hourly expenditure for travel shall be invoiced according to the hourly rates agreed between the parties.
Approval
1. Insofar as Davies Meyer provides work services in the sense of §§ 631 ff. BGB, these require acceptance.
2. Insofar as partial acceptances are agreed and/or acceptances of partial deliveries and/or services are carried out, Davies Meyer is entitled to withhold further partial deliveries and/or services and, if applicable, to stop production orders already commissioned with third-party service providers, insofar as the customer is in default with the acceptance of partial deliveries and/or services or the payment of accepted partial deliveries and/or services.
3. Acceptance may not be refused on account of insignificant defects. Essential defects are defects where the intended, i.e. economic use of the work is not possible or unreasonably restricted or impeded.
Retention of title
1. As far as these are capable of ownership, Davies Meyer reserves the right of ownership of the services until their complete payment.
Liability for defects
1. If the customer is entitled to warranty claims against Davies Meyer, the period of limitation for warranty claims is one (1) year. The statutory periods of limitation remain unaffected, however, in case of fraudulent concealment of a defect, in case of acceptance of a guarantee of quality, in case of injury to life, body or health, in case of intent or gross negligence as well as in a case of liability according to the Product Liability Act.
2. Davies Meyer does not give a guarantee of durability or quality in the sense of §§ 443 or 639 BGB.
3. § Section 377 of the German Commercial Code (HGB) also applies to contracts for work and services in the corresponding applications.
4. If the software is defective, the customer shall, if necessary, adopt a new version of the software within the scope of the replacement delivery, unless this leads to unreasonable impairments.
5. A warranty for material defects does not apply to defects that are based on the fact that software and/or hardware is used in a hardware and/or software environment that does not meet the requirements, or for changes and modifications that the customer has made to the software and/or hardware supplied by Davies Meyer, without being entitled to do so by law, these GTC or on the basis of prior written consent of Davies Meyer.
6. The customer bears the risk that the advertising measures carried out by Davies Meyer are legally permissible, in particular in accordance with the provisions of the law against unfair competition and special regulations under advertising law. Davies Meyer does, however, draw the customer’s attention to legal risks, insofar as it becomes aware of these during the preparation of the advertising measures.
7. Costs, which Davies Meyer incurs due to an unjustified notice of defect by the customer, are to be reimbursed by the customer, if the customer could have recognized, by applying the care customary in the trade, that the notice of defect is unjustified.
Disclaimer
1. Davies Meyer is liable without limitation for damages resulting from injury to life, body or health, which are based on a breach of duty by Davies Meyer, a legal representative or vicarious agent of Davies Meyer as well as for damages, which were caused by the absence of a quality guaranteed by Davies Meyer.
2. Davies Meyer is liable without limitation for damages caused intentionally or by gross negligence by Davies Meyer or one of its legal representatives or vicarious agents.
3. In the case of a breach of essential contractual obligations caused by slight negligence, Davies Meyer is liable, except in the cases of clauses 15.1, 15.2 or 15.4, limited in amount to the foreseeable damage typical for the contract. Essential contractual obligations are abstractly such obligations, the fulfillment of which makes the proper execution of a contract possible in the first place and on the observance of which the parties to the contract may regularly rely on.
4. The liability according to the ProdHaftG remains unaffected.
5. Otherwise, the liability of Davies Meyer is excluded.
6. The limitation period for claims for damages against Davies Meyer is one (1) year, except in the cases of clauses 15.1, 15.2 or 15.4.
Intellectual property
1. Unless otherwise agreed, Davies Meyer grants the customer in each case only the simple, non-exclusive, non-transferable, temporally and spatially (territorially) unrestricted right of use for the use of the services, which is, however, limited in content to the purpose of the respective contract and the concretely agreed object of service.
2. If the services consist of the creation or design of a website, an Internet presence, or another Internet-related service (e.g. including advertising banners), Davies Meyer grants the customer, contrary to clause 16.1, the relevant rights of use only for the agreed countries.
3. Davies Meyer basically grants the customer rights of use of intellectual property only at the time of complete payment of the associated services. Rights of use of intellectual property, which belong to work performance in the sense of §§ 631 ff. BGB, Davies Meyer grants the customer rights of use of intellectual property only at the time of successful acceptance and complete payment of this work performance. The customer is not granted any rights of use for drafts.
4. Insofar as the services contain the intellectual property of third parties or their use requires the consent of third parties, Davies Meyer undertakes to procure for the customer the necessary rights of use in this respect for use within the framework of the agreed services or the necessary consent to the extent described in clause 16.1 for the customer.
5. The rights of use granted to the customer in accordance with Section 16.4 are limited in each case to the specifically agreed object of performance. In particular, picture rights, which Davies Meyer acquires for the customer, for example from other agencies such as Shutterstock or Getty, are limited in time to the publication period of the ordered services and objectively to their scope. Further rights to the services exist only insofar as this is expressly agreed between the parties.
6. Davies Meyer will inform the customer in each case about the existence of further restrictions of the rights of use, about the obligation to comply with license conditions of third parties going beyond this, as well as about existing GEMA rights or rights of other collecting societies.
7. Insofar as the Services include the delivery of standard software produced by a third party, the Customer undertakes to additionally comply with the license conditions provided by the respective manufacturer for this standard software, in particular, that this standard software is not duplicated contrary to the provisions of the respective third-party manufacturer and that a sufficient number of licenses is always available for the intended use. If the customer uses the standard software to an extent that qualitatively (with regard to the type of permitted use) or quantitatively (with regard to the number of licenses acquired) exceeds the acquired rights of use, the customer shall immediately acquire the rights of use necessary for the permitted use.
8. If the services contain open source components, Davies Meyer will indicate the respective open-source licenses in the offer, as far as Davies Meyer is obliged to do so according to the relevant open source conditions. The customer is obliged to comply with the respective applicable open source conditions.
9. The customer indemnifies Davies Meyer from all damages, which Davies Meyer suffers from the unauthorized use of the services by the customer.
Data protection and data analysis
1. In the event that the provision of services by Davies Meyer includes the processing of personal data, the parties will conclude a separate data protection agreement.
2. The customer retains ownership of all data which he makes available to Davies Meyer.
3. The results of data analyses carried out within the framework of the services become the property of the customer.
4. Davies Meyer is also entitled to use the results obtained from data analyses for his own purposes.
Secrecy
1. “Confidential information” is all information, of whatever nature (irrespective of its designation as confidential), which has been or will be provided to the customer by Davies Meyer in relation to or in connection with the contractual relationship, which the customer has received or will receive in relation to or in connection with the contractual relationship with Davies Meyer or which the customer perceives differently in relation to or in connection with this contract. In particular, such Confidential Information relates to the following events and circumstances with regard to Davies Meyer: e.g: details concerning the execution of services, cooperation or other contractual relationships of Davies Meyer with third parties; drafts, etc.
2. Excluded from the concept of Confidential Information is such information of which the customer can prove that (a) it was already known to him before disclosure by Davies Meyer, (b) it was publicly known at the time of disclosure by Davies Meyer, without this being the consequence of a breach of a confidentiality obligation, (c) he has received them lawfully from a third party who was allowed to disclose them without restriction, (d) they have been developed by him independently and without violation of the obligations from this clause 18, or (e) Davies Meyer has released them separately and in writing for disclosure by the customer to third parties.
3. 1. The customer is obliged (a) to use the Confidential Information only for the purposes of the contractual relationship with Davies Meyer and not for other purposes, in particular not for his own purposes or for use with third parties and (b) to treat the Confidential Information strictly confidential and to take all necessary measures to maintain this confidentiality. In particular, the customer is obliged,
4. At the request of Davies Meyer or after termination of the contractual relationship, the customer is obliged to return the Confidential Information and all copies, extracts and notes thereof to Davies Meyer without delay or, at the request of Davies Meyer, to destroy them and to delete all Confidential Information from any data carriers. The same applies to other documents and data, which have been created on the basis of this contract from provided Confidential Information or common data. These obligations do not apply as far as the customer is obliged to keep copies of such Confidential Information due to mandatory legal regulations. In this case, the obligations under this Section 18 shall apply to the Customer as soon as the obligation to store such information ceases to exist.
5. The customer remains bound by his obligations under this clause 18 for a period of five (5) years from the disclosure of the Confidential Information with Davies Meyer.
Miscellaneous
1. Notices of termination and other declarations of intent must be in writing.
2. These terms and conditions are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions.
3. The place of jurisdiction for all disputes is, as far as legally permissible, Hamburg.
4. Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
5. The customer can only offset against claims of Davies Meyer with undisputed or legally established counterclaims. The same applies accordingly to the exercise of a right of retention by the customer.