GTC
General Terms and Conditions
of CBE DIGIDEN AG
1. Validity of the General Terms and Conditions
The following terms and conditions apply to all contracts concluded between us and the client. They also apply to all future business relationships, even if they are not expressly agreed on again. Differing conditions of the client that we do not expressly accept do not become part of the contract, even if we do not expressly object to them.
2. Scope of services
2.1 The scope of the service to be provided by us is determined by the offer and/or the service description underlying the offer.
2.2 We have freedom of design within the scope of the order. If the client wishes to make changes during or after the service has been provided, he must bear the additional costs.
2.3 We are not responsible for the copyright, design, competition, trademark and/or patent protection or registrability of the ideas, suggestions, proposals, concepts, drafts, communication measures and other services provided.
2.4. When creating our services, we are also not obliged to check for any conflicting rights of third parties, unless expressly agreed otherwise. We are therefore not liable for the legal, in particular the competition, copyright, design, trademark and/or patent law admissibility and/or usability of the ideas, suggestions, proposals, concepts, drafts, communication measures and other services provided by us. In particular, we only carry out design, patent or trademark searches following a special, fee-based order from the client. If the client wishes to carry out such a design, patent or trademark search, this must be agreed in writing and paid for separately. However, we will inform the client of any legal risks if we become aware of them during the execution of the order.
2.5 We are not obliged to release so-called open files and data. If the client wishes us to make open files and data available to him, this must be agreed in writing and paid for separately.
3. Client’s duty to cooperate / approvals
3.1 The client provides us with all data and documents required to provide our services at his own expense and risk. Data and data carriers provided by the client must be free of viruses, Trojans and other malware; otherwise the client is obliged to compensate us for any damages we incur as a result.
3.2 The client assures that he is entitled to use all templates provided to us and that these templates are free of third-party rights. If, contrary to this assurance, he is not entitled to use them or if the templates are not free of third-party rights, the client shall indemnify us internally against all claims for compensation from third parties. The indemnification obligation shall not apply if the client proves that he is not at fault.
3.3. The client must keep backup copies of all data made available to us.
3.4. If the client does not undertake a required act of cooperation, we can set him a reasonable deadline to complete the action with the declaration that we will terminate the contract if the act of cooperation is not carried out by the end of the deadline. Our claim for compensation under Section 642 of the German Civil Code remains unaffected by this. If we request approval from the customer for service components, concepts, design drafts, functionality descriptions or decisions on technical or organizational procedures, the client must inform us of any complaint(s) in text form within 14 days of the approval request being made available. We are entitled to carry out the services as proposed by us if the client has not submitted any specific complaints within the deadline. We will inform the client of this separately.
4. Delivery
4.1 Delivery dates are only binding if they have been expressly confirmed by us in writing.
4.2 Agreed delivery times can only be met if the client has fulfilled his obligations (for example, making an agreed down payment on time, providing all documents that may need to be made available, etc.). If the client subsequently requests changes or additions, the delivery time will be extended accordingly. If we do not meet delivery deadlines, the client must set us a reasonable grace period in writing, which begins when we receive the grace period notice. The client is only entitled to withdraw from the contract if the grace period expires without result.
4.3 The client may only withdraw from the entire contract due to partial delay or partial impossibility if the partial service already provided is demonstrably of no interest to the client.
4.4 We are entitled to make partial deliveries and partial services at any time, provided this is reasonable for the client.
5. Third-party services
5.1 We are entitled to use third parties as subcontractors to fulfill our contractual obligations.
5.2 If contracts for third-party services are concluded in our name and for our account to fulfill the order, we will pass the costs on to the client. The client will release us internally from all liabilities arising from this.
5.3 For orders that are placed with third parties in the name and on behalf of the client, we accept no liability or responsibility towards the client for defects in the work, provided that we are not at fault in the selection. In these cases, we act merely as an agent. If we ourselves are the client of subcontractors, we hereby assign to the client all claims to which we are entitled due to defects in the work, compensation and other claims arising from faulty, late or non-delivery. The client is obliged to first try to enforce the assigned claims against the subcontractor before making a claim against us.
6. Remuneration, payment and late payment
6.1 The scope of the remuneration owed is determined from our offer accepted by the client. Planning, drafting, design and conception services include – unless otherwise stated in the offer – two correction loops.
6.2 If remuneration based on time spent has been agreed, we will invoice the time spent on a monthly basis at the end of each month.
6.3 The client will bear the travel costs incurred in connection with the provision of the services owed under this contract. We will agree the travel costs with the client in advance. We invoice these monthly at the end of each month.
6.4 The remuneration owed to us is due within 14 days of invoicing without deduction.
6.5 All prices are net prices and are subject to the applicable statutory sales tax.
7. Acceptance and deemed acceptance
7.1 In the case of work contracts, the client is obliged to accept the work. In the event of significant deviations from the work owed, we will remedy these within a reasonable period of time and submit the work for acceptance again.
7.2 If we inform the client of the completion of a work in writing and the client does not report any defects that are more than insignificant within 4 weeks of notification of completion, the work is deemed to have been accepted. Acceptance is deemed to have taken place at the latest upon unconditional payment or use of the work.
8. Material and legal defects
8.1 Any defects that occur must be documented by the client in a way that is as comprehensible to us as possible and reported to us in writing and as soon as possible after they are discovered.
8.2 We are entitled to provide subsequent performance within a reasonable period of time, depending on the severity of the defect, at our discretion by means of rectification or by new delivery. The client can request a new delivery or rectification within a reasonable period of time if the other form of subsequent performance is unreasonable for him.
8.3 If it turns out that a defect reported by the client does not actually exist, we are entitled to charge the client for the costs incurred in the analysis and other processing, provided that the defect is one that the client could have recognized as originating from his sphere.
8.4 The right to withdraw and to claim damages instead of the entire service only exists in the case of significant defects.
8.5 Claims for material and legal defects expire one year after acceptance. This does not apply in the case of fraudulent intent on our part or in the case of the provision of a guarantee.
9. Rights of use, references
9.1 The granting of rights of use does not require that the work enjoys legal protection, for example under copyright, design, trademark or patent law or the law against unfair competition. We only transfer the rights of use that are necessary for contractual use by the client.
9.2 The services we provide remain our property until all claims arising from an order have been paid in full. The granting of usage and exploitation rights is also dependent on full payment of our claims. If we allow or tolerate the use of the service(s) provided by the client before full payment has been made, and the client defaults on payment of the fee, the client undertakes to immediately stop using the service(s) at our request and to immediately refrain from exploiting them (copying, distributing, making them publicly available, processing, changing them) at our request.
9.3 If the client does not accept design proposals presented by us, the copyright usage rights to the design proposals remain with us. Any transfer of usage rights to design proposals that have not been accepted must be agreed in writing and paid for separately. The same applies to ownership of the templates in question.
9.4 The inclusion of the work results in our self-presentation (online, print, offline) is permitted within the scope of the usual representations (e.g. on a homepage, in presentations, business reports, press releases, other publications of any kind or by participating in competitions or tenders). In addition, we may name the client as a reference in our self-presentation and also use the client’s logo.
10. Retention, offsetting
10.1 The client cannot assert any right of retention against us from other orders.
10.2 The client is only permitted to offset if his own claim is legally binding or recognized or if it entitles him to refuse performance.
10.3 These restrictions do not apply to additional completion and/or defect removal costs to which the client is entitled against us.
11. Liability
We are liable without limitation in the event of injury to body, life and health as well as in the event of intent and gross negligence. In the event of a breach of essential contractual obligations and in the event of impossibility, we shall also be liable in the event of slight negligence, but then limited to compensation for the foreseeable damage typical of the contract. Otherwise, we shall not be liable in the event of slight negligence. Essential contractual obligations (cardinal obligations) are those contractual obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the client regularly relies and may rely. Typical, foreseeable damages are those that fall under the protective purpose of the contractual norm violated in each case. Excluded from this are claims for injury to life, body or health if we are responsible for the breach of duty and other damages that are based on an intentional or grossly negligent breach of duty on our part. The above limitations of liability also apply to our vicarious agents and vicarious employees, provided that they are also personally held liable.
12. Final provisions
The place of fulfilment is Berlin. If the client is a registered merchant, a legal entity under public law or a special fund under public law, our place of business is agreed as the place of jurisdiction for both parties for any disputes arising from the contract and related legal relationships. Unless otherwise agreed, German law also applies to contractual relationships with foreign clients. The application of the UN Convention on Contracts for the International Sale of Goods, the Uniform Sales Act (EKG) and the Uniform Sales Conclusion Act (EKAG) is excluded.
(Status: January 2019)