General terms and conditions
These General Terms and Conditions are an integral part of all our offers, support contracts (under number 12) and service contracts for services to be provided by us, also in current or future business relationships. Deviating agreements, in particular contradictory terms and conditions of business of our customers, as well as collateral agreements require our express consent in each individual case in order to become part of the contract. The contractual partner is Digifom GmbH, August-Wiehe-Str.6, 59590 Geseke (hereinafter referred to as "Digifom" or "Contractor").
1 Cooperation and conclusion of contract
1.1 The parties shall cooperate on the basis of trust and shall inform each other without delay in the event of deviations from the agreed procedure or doubts as to the correctness of the other's procedure.
1.2 The subject of each contract is the provision of the agreed service by us, but not specific economic successes hoped for or planned by our customers. For the performance of each contract, we may use third parties (in particular subcontractors and/or freelancers) without requiring the consent of the customer.
1.2 If the Customer recognizes that its own information and requirements are incorrect, incomplete, ambiguous or impracticable, it shall immediately notify Digifom of this and the consequences that it recognizes.
1.3 The contracting parties shall name contact persons and their deputies to each other who shall responsibly and expertly manage the implementation of the contractual relationship for the contracting party naming them.
1.4 The parties shall notify each other without delay of any changes in the persons named.
1.6 About the exchange of information Digifom is entitled to create notes that are necessary for the order processing.
2 Cooperation obligations of the customer
2.1 The Customer shall support Digifom in the performance of its contractually owed services. This includes in particular the timely provision of information, data material as well as hardware and software, insofar as the Customer's cooperation services require this. This also includes the provision of access to the server and backend of the website. The Customer shall instruct Digifom in detail regarding the services to be provided by Digifom.
2.2 The Customer shall provide the required number of its own employees for the performance of the contractual relationship who have the required expertise.
2.3 If the Customer has undertaken to provide Digifom with materials (images, sound, text, etc.) in the context of the execution of the Agreement, the Customer shall make these available to Digifom without delay and in a standard, immediately usable, preferably digital format. If it is necessary to convert the material provided by the Customer into another format, the Customer shall bear the costs incurred for this, provided that a high additional expense is incurred. The Customer shall ensure that Digifom obtains the rights necessary for the use of such materials.
3 Third party participation
The Customer shall be liable for third parties who act on behalf of Digifom at the Customer's instigation or with the Customer's acquiescence, as if they were vicarious agents. Digifom shall not be responsible vis-à-vis the Customer if, due to the conduct of one of the aforementioned third parties, Digifom is unable to meet its obligations vis-à-vis the Customer in whole or in part, or is unable to do so in a timely manner.
4.1 The Customer agrees that Digifom may use and subcontract subcontractors, such as data centers or managed services providers, for the performance of its contractually agreed services. If Digifom places orders with subcontractors, it is Digifom's responsibility to transfer its obligations to the subcontractor.
4.2 Digifom also commissions subcontractors to provide ancillary services to support the execution of the order. These include, for example, telecommunications services, back-end work, front-end work, maintenance work and server work. Digifom undertakes to ensure the protection and security of the Customer's data even in the case of subcontracted ancillary services to safeguard personal Customer data or confidential data. This obligation continues even after the termination of the cooperation. At the request of the customer, all data that the customer has provided to Digifom for the fulfillment of services will be removed.
5 Changes in performance
5.1 If the Customer wishes to change the contractually determined scope of the services to be provided by Digifom, the Customer shall express this change request in writing to Digifom. The further procedure shall be governed by the following provisions. In the case of change requests that can be examined quickly and can probably be implemented within 8 working hours, Digifom may dispense with the procedure under paragraphs 2 to 5.
5.2 Digifom shall examine what effects the requested change will have, in particular with regard to remuneration, additional expenses and deadlines. If Digifom recognizes that the Services to be performed cannot be performed or can only be performed with a delay as a result of the review, Digifom shall inform the Customer thereof and point out to the Customer that the change request can still only be reviewed if the affected Services are initially postponed for an indefinite period of time. If the Customer declares his consent to this postponement, Digifom shall carry out the review of the change request. The Customer shall be entitled to withdraw its change request at any time; the initiated change procedure shall then end.
5.3 After reviewing the change request, Digifom shall explain to the Customer the effects of the change request on the agreements made. The statement shall contain either a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented.
5.4 The contracting parties shall immediately coordinate the content of a proposal for the implementation of the change request and attach the result of a successful coordination to the text of the agreement to which the change relates as a supplementary agreement.
5.5 If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain in effect. The same shall apply in the event that the customer does not agree to a postponement of the services for the further performance of the test pursuant to paragraph 2.
5.6 The dates affected by the change procedure shall be postponed as necessary, taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed, plus a reasonable start-up period. Digifom shall notify the Customer of the new dates.
5.7 The customer shall bear the expenses incurred by the change request, unless these are included in the offer. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. In this case, the expenses shall be charged at an hourly rate of 80 euros per hour or part thereof.
5.8 Digifom shall be entitled to modify or deviate from the services to be provided under the Agreement if the modification or deviation is reasonable for the Customer, taking into account Digifom's interests.
6 Remuneration and prices
6.1 The Customer shall bear against proof all expenses such as travel and accommodation costs, out-of-pocket expenses and third-party claims for remuneration incurred in the course of the performance of the contract. Travel expenses shall only be reimbursed if the travel distance from Digifom's registered office exceeds 50 km and are expressly requested by the Customer. The pure travel time will not be reimbursed.
6.2 Digifom shall be remunerated on the basis of time spent. The remuneration for the time spent shall be based on the applicable remuneration rates of € 80 net per hour or part thereof of Digifom, unless otherwise agreed. Digifom is entitled to change or supplement the rates of remuneration on which the agreements are based at its reasonable discretion (§ 315 BGB). Cost estimates or budget plans prepared by Digifom are non-binding.
6.3 If the parties have not agreed on the remuneration for a service of Digifom, the performance of which the Customer could only expect according to the circumstances against remuneration, the Customer shall pay the remuneration customary for this service.
6.4 The prices stated and communicated are binding. The prices communicated shall be net prices plus statutory value added tax.
6.5 Payment for the services shall be made immediately after the invoice is issued. Payment for the services shall generally be due upon conclusion of the contract, unless the parties have agreed otherwise.
6.6 If SEPA direct debit is agreed, the Customer shall issue a written SEPA direct debit mandate after conclusion of the contract. This shall also apply to subsequent orders. This is processed via the GoCardless payment service (GoCardless Ltd., Sutton Yard, 65 Goswell Road, London, EC1V 7EN, United Kingdom). Further information on this service can be found at: https://gocardless.com/de-de/rechtliches/.
6.7 In the event that agreed direct debits cannot be collected from the account and a chargeback occurs, the Customer is obliged to transfer the amount owed to Digifom within three working days after the chargeback and to bear the costs caused by the chargeback.
6.8 Offsetting against counterclaims shall only be mutually permissible if the respective other contracting party has acknowledged the offsetting or if such offsetting has been legally established. The same shall apply to the exercise of a right of retention by a contracting party.
7.1 Digifom grants the Customer the non-exclusive right, not limited in terms of space or time, to use the services provided in accordance with the contract. If software is the subject matter of the Services, §§ 69 d and e UrhG shall apply.
7.2 Any further use than described in paragraph 1 is not permitted. In particular, the Customer is prohibited from granting sublicenses and from reproducing, renting or otherwise exploiting the Services.
7.3 Until full payment of the remuneration, the Customer is only permitted to use the Services provided on a revocable basis. Digifom may revoke the use of such Services for which the Customer is in default of payment for the duration of the default. Likewise, in the event of default of payment by the Customer, Digifom reserves the right to block access to the Website or to return it entirely to its previous initial state.
8 Infringements of property rights
8.1 Digifom shall indemnify the Customer at its own expense against all claims of third parties arising from infringements of property rights (patents, licenses and other property rights). The Customer shall immediately inform Digifom of the asserted claims of third parties. If the Customer fails to inform the Agency immediately of the claims asserted, the indemnification claim shall expire.
8.2 In the event of infringements of Intellectual Property Rights, Digifom may - without prejudice to any claims for damages by the Customer - at its own discretion and at its own expense make changes with regard to the affected performance after prior consultation with the Customer which, while safeguarding the interests of the Customer, ensure that an infringement of Intellectual Property Rights no longer exists or acquire the necessary rights of use for the Customer.
The Customer may only withdraw from the contract due to a breach of duty that does not consist of a defect in the purchased item or the work if Digifom is responsible for this breach of duty.
10.1 Digifom shall be liable for intent and gross negligence. Digifom shall only be liable for slight negligence in the event of a breach of a material contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, body or health.
10.2 In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage that can typically be expected to occur. In any case, liability shall be limited to the amount of the agreed remuneration.
10.3 Digifom shall not be liable for the loss of data and/or programs to the extent that the damage is due to the Customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
10.4 The above provisions shall also apply in favor of Digifom's vicarious agents.
11 Secrecy, press release
11.1 The documents, knowledge and experience provided to the other contracting party may be used exclusively for the purposes of the service and may be made available only to project participants, unless they are intended to be made available to third parties or are already known to the third party.
11.2 In addition, the contracting parties agree to maintain confidentiality regarding the content of this contract and the knowledge gained during its execution.
11.3 The confidentiality obligation shall also apply beyond the termination of the contractual relationship.
11.4 If a Contracting Party so requests, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, unless the other Contracting Party can claim a legitimate interest in such documents.
12 Support contracts
§ 1 Subject of the support contracts
- The subject of the support contracts is the maintenance of the website specified in § 2 para. 1 according to the customer's specifications. In this context, further services such as search engine optimization, design service and other services may be ordered.
- The placement of the website(s) on the World Wide Web, their storage on an own or external server (host providing) as well as the procurement of an Internet domain and an access to the Internet (access providing) are not subject of the support contracts.
§ 2 Duties of the provider & scope
The Provider is obliged to update the following website(s) of the Customer on an ongoing basis (§ 2 para. 2 of this Agreement) and to maintain them (§ 2 para. 3 of this Agreement):
- Updating of the Website(s): Provider is required to update the following features of the Website(s) on a monthly basis as required by Customer:
- Contents of the website(s)
- Basic structure of the website(s)
- graphic design of the website(s)
- Optimization of the website(s)
- The provider is obligated to monitor the usability of the website(s) in reasonable time circumstances and to correct any functional defects. Functional deficiencies include, in particular, disturbed functionalities such as hyperlinks that do not function properly.
- The Provider undertakes to make the amended Website(s) available on the Internet immediately after each update.
- Texts, graphics and other files, once updated, will be saved in the format in which comparable data of the existing website(s) are saved, unless the customer explicitly specifies a different formatting.
- The provider is obligated to handle the dial-up data for the fulfillment of this contract (backend accesses, server accesses) with care and to prevent misuse of the dial-up data by third parties who are not used to provide the service.
- The Provider agrees to spend an average of one time hour per month on the Website(s) and related support.
§ 3 Obligations of the customer to cooperate
- The customer shall provide the provider with all new content to be included in the website(s). The customer is solely responsible for the production of the content. The provider is not obligated to check whether the content provided by the customer is suitable for the purposes pursued with the website(s).
- The content to be provided by the Customer includes in particular all texts, images, graphics, logos and tables to be included. The images and texts included by Digifom are therefore to be understood as suggestions in the provision of services.
- The Customer shall provide the Provider with the texts to be included in the following form: As a PDF file or in a written mail.
- The Customer shall provide the Provider with image files (photos, graphics, logos, etc.) to be included as follows:
in digital form of one of these file formats: JPEG (.jpg) GIF (.gif) TIFF [PC] (.tif) TIFF [Mac] (.tif) EPSF [PC] (.eps) EPSF [Mac] (.eps)
§ 4 Remuneration of support contracts
- The Parties agree on a monthly remuneration, which shall be paid in accordance with the offer made and the order placed.
- The flat-rate remuneration includes the services of the Provider in accordance with the previous paragraphs of this Agreement. For additional expenses that go beyond this support and maintenance contract, the parties agree on an hourly remuneration of EUR 80 plus VAT.
§ 5 Payment modalities of the support contracts
The Provider shall invoice the Customer for the contractually owed remuneration on a monthly basis, namely at the beginning of each month. Each invoice is due for payment within fourteen working days.
§ 6 Term, Termination
- Unless otherwise agreed, the contract shall be concluded for a term of twelve months and may be terminated by either party by declaration in text form (§ 126 b BGB), giving three months' notice to the minimum contract date. The service commencement date starts with the issuance of the first invoice.
- The right of termination for good cause (S 314 (1) BGB) shall remain unaffected by the parties.
- The Provider shall have good cause to terminate this Agreement in particular if the Customer persistently breaches its obligations pursuant to § 3 of this Agreement or if the Customer fails to settle due invoices despite a reminder and the setting of a deadline.
§ 7 Limitation of liability of the support contracts
- The creator is liable without limitation for damages resulting from injury to life, body or health, which are based on an intentional or negligent breach of duty by the creator or a legal representative or vicarious agent of the creator.
- Otherwise, the creator is liable without limitation only if the guaranteed quality of the work is not given and for intent and gross negligence of its employees. For fault of other vicarious agents the creator is liable only in case of slight negligence.
- Liability for slight negligence by the creator only comes into question if an obligation was violated that is of particular importance for achieving the purpose of the contract (cardinal obligation). If only slight negligence in the violation of a cardinal obligation is given, the liability is limited to 500 EUR.
- Liability for loss of data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been made regularly and in accordance with the risks involved, unless a case under subsection 2 or 3 of this section applies.
- Liability according to the product liability law is not covered.
- The customer fully indemnifies the creator from any liability towards third parties due to the content of the website(s).
13.1 In the event of any disagreement arising out of or in connection with this contractual relationship, the parties shall first attempt to reach a solution through a thorough discussion between the contact persons.
13.2 Differences of opinion which cannot be resolved by the parties shall be settled by a conciliation procedure. If one of the parties refuses to go to arbitration, it may take legal action if it has previously notified the other party in writing.
13.3 In order to conduct a conciliation procedure, the parties shall call upon the conciliation board of the Deutscher Multimedia Verband e.V., Kaistrasse 14 in 40221 Düsseldorf with the aim of settling the disagreement in full or in part, provisionally or finally, in accordance with its rules of conciliation.
13.4 In order to enable the mediation, the parties mutually waive the defense of the statute of limitations for all claims arising from the disputed facts of life from the request for mediation until one month after the end of the mediation proceedings. The waiver shall suspend the statute of limitations.
13.5 The dates affected by the conciliation proceedings, including the preceding discussion between the Contact Parties, shall be postponed as necessary, taking into account the duration of the conciliation and, if applicable, the duration of the conciliation results to be executed plus a reasonable start-up period.
14.1 The assignment of claims shall only be permitted with the prior written consent of the other contracting party. The consent may not be unreasonably withheld. The provision of § 354 a HGB shall remain unaffected.
14.2 A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.
14.3 The contracting parties may only offset claims that have been legally established or are undisputed.
14.4 Digifom may name the Customer as a reference customer on its websites or in other media. Digifom may also publicly reproduce or refer to the Services provided for demonstration purposes, unless the Customer can claim a legitimate interest to the contrary.
14.5 Digifom may publish a copyright notice on the Customer's website, e.g. in the imprint of the homepage.
14.6 Digifom is entitled to create an emergency access to the Website.
14.7 Digifom is entitled to involve subcontractors for the performance of support services, without the Customer's consent.
15 Right of withdrawal
You have the right to revoke this user contract within fourteen days without giving any reason. The revocation period is fourteen days from the day of the conclusion of the contract. To exercise your right of withdrawal, you must inform us (Digifom GmbH, August-Wiehe-Str. 6, 59590 Geseke, E-Mail:[email protected]) of your decision to withdraw from this contract by means of a clear declaration (e.g. a letter sent by post, fax or e-mail). You can use the attached sample withdrawal form for this purpose, which is, however, not mandatory. In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.
Pursuant to Section 356 (4) of the German Civil Code, the right of withdrawal shall also expire in the case of a contract for the provision of services if the Entrepreneur has provided the service in full and has only begun to perform the service after the Consumer has given his express consent to this and has confirmed his knowledge that he will lose his right of withdrawal upon full performance of the contract by the Entrepreneur.
Pursuant to Section 356 (5) of the German Civil Code (BGB), the right of withdrawal shall also expire in the case of a contract for the delivery of digital content that is not on a physical data carrier if we have commenced performance of the contract after the consumer has
- a) expressly consented to the entrepreneur commencing performance of the contract before the expiry of the withdrawal period, and
- b) has confirmed his knowledge that by his consent he loses his right of withdrawal at the beginning of the execution of the contract.
Consequences of the revocation
If you revoke your usage agreement, the purchaser of the license you used will be sent a new license number that can be used for a new registration of another user. However, if services have already been used during the revocation period, we reserve the right to shorten the new license by the period of use that has already occurred.
Sample cancellation form
(If you want to cancel the contract, please fill out and return this form).
- To Digifom GmbH, August-Wiehe-Str. 6, 59590 Geseke, [email protected]
- I/we (*) hereby revoke the user agreement concluded by me/us (*) for the use of the platform Ihrewebseite.de and the content available on it.- Date of registration
- Name of the consumer(s)
- Address of the consumer(s)
- Signature of the consumer(s) (only in case of notification on paper)
(*) Delete as applicable.
16 Final provisions
16.1 All amendments and supplements to contractual agreements must be recorded in writing for evidence purposes. Notices of termination must be made in writing. Notifications that have to be made in writing may also be made by e-mail.
16.2 Should individual provisions of the party agreements be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. In this case, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any loopholes in the agreements.
16.3 The customer's general terms and conditions shall not become part of the contract.
16.4 The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
16.5 The place of performance and jurisdiction shall be, to the extent permitted by law, the place of the creator.