Terms & Conditions
1. Scope of application
1.1 These General Terms and Conditions (hereinafter “GTC”) shall apply to all contractual relationships between Mr. Timon Menge, Geheimrat-Leuschner-Str. 5, 44892 Bochum (hereinafter referred to as Contractor) and Clients and business partners (hereinafter referred to as Client).
1.2 The GTC shall apply exclusively to the business relations between Contractor and Client. Divergent terms and conditions on the part of the Client shall not apply, even if the Contractor does not explicitly object to them. Divergent individual agreements must be made in writing. This also applies particularly to a guarantee or a deadline. In this case, these GTC are only supplementary.
1.3 Insofar as the Client is an entrepreneur, merchant, legal entity under public law or a special fund under public law, these terms and conditions shall also apply to all future business relationships, even if they are not explicitly restated.
1.4 The Contractor has the right to change the Terms and Conditions, the respective specifications, and the prices within an appropriate term of notice. The changes will be communicated to the Client in writing. If changes are made to the detriment of the Client, the Client is entitled to a special right of termination at the time that the change comes into effect. The Contractor will inform the Client of the special termination right in the notification of change, and point out that the change will take effect if the Client does not make use of his special right of termination within the set period.
2. Conclusion of contract
2.1. Unless the parties conclude a separate written contract, a contract is concluded by acceptance (order / commission) of the Contractor’s individual offer by the Client. Unless otherwise agreed, the Contractor is bound by the offers for 13 days. The information provided in electronic media, brochures, or promotional materials is merely an invitation to submit an offer.
2.2 Dates and deadlines for the commencement of the provision of services are only binding if the Contractor has explicitly confirmed them in writing and the customer has met all the conditions for the provision of services within his/her sphere of influence.
3. Scope of services
3.1 The scope of the services is in accordance with the Contractor’s service description as well as from the related information in the contract.
3.2 The Contractor reserves the right to extend or improve services. Insofar as the Contractor provides services free of charge, these can be discontinued at any time without prior notice. If recruitment is of importance to the Client, the Contractor will inform the Client of the recruitment at an early stage.
3.3 The Contractor is entitled to serve third parties (hereinafter “SubContractors”) to fulfill his/her performance obligations.
4. Web hosting
Insofar as the Contractor assumes hosting services, the following regulations apply:
4.1 The Contractor is required to take all technical measures necessary to ensure the 99% availability of hosting services per month. The Contractor shall record downtime. As soon as short-term failures per month exceed 7.2 hours, or a one-time failure causes more than 7.2 hours of uninterrupted hosting services to be unavailable, the Client’s remuneration payment obligation for that month ceases to apply.
4.2. The Client is obliged to use the services properly. He/she must ensure that the network infrastructure or parts of it are not overloaded by excessive use. He/she shall not abuse or offer access to services and refrain from unlawful acts. The Client ensures that through the use of the services provided no violations of protection laws, civil, criminal or regulatory provisions will occur. He has to keep passwords secret.
4.3 The Client must notify the Contractor of recognizable defects and malfunctions immediately and enable the Contractor to identify the defects and malfunctions as well as determine their causes. The Client shall reimburse the Contractor for expenses incurred as a result of the inspection of the facilities and due to defects and disruptions arising from the Client’s sphere of responsibility. He/she must refrain from doing so and must ensure that the services are offered to third parties, brokered to third parties or used by third parties. The use of third parties is only permitted with the Contractor’s explicit written consent.
4.4 If the Client defaults in payment, the Contractor is entitled to suspend the hosting service after a deadline of one week; in particular he/she may block the connection.
5. Rights of use
5.1 The parties agree that the rights required to fulfill the contractual relationship are mutually granted, to the extent that is agreed or necessary here. They will make any declarations or take any legal action necessary to do so.
5.2 The Client commits him/herself in particular to allow the Contractor to carry out all necessary acts of use in relation to the content provided on behalf of the Client according to the purpose of the contract. In particular, this includes the permission to reproduce, distribute, remodel, and transfer the provided contents in accordance with the purpose of the contract, while preserving and archiving the respective moral rights.
5.3. Unless otherwise agreed, the Contractor grants the Client, under the reservation of full compensation, the simple, i.e. non-exclusive, unlimited rights in terms of time, space, and content, to use the services provided by the Contractor in the context of the contractual relationship to fulfill the purpose of the contract. The granting of exclusive rights of use requires a separate written agreement between the parties. In the case of contractual work services (services in which benefits are owed, such as the creation of a print product), the granting of rights of use by the Contractor is subject to unconditional acceptance and full payment of remuneration on the part of the customer.
6. Third-Party rights
The Contractor is not responsible for the content that the Client provides in the performance of the contract. In particular, the Contractor is not obliged to check the content provided for possible infringements. The Client warrants that the transmitted data and works are free of third-party rights, particularly copyrights, naming and trademark rights, and exploitation rights, which restrict or exclude use / processing in accordance with the contractually stipulated scope. The parties shall notify each other immediately if third parties claim infringements. The Client exempts the Contractor of costs and damages on first request upon assertion of such claims by third parties. He/she bears all costs in cases of legal dispute.
7.1 The agreed remuneration results from the Contractor’s individual contracts / offers and is understood to be in euros plus the respective statutory sales tax.
7.2 Invoices by the Client are payable within 13 days of receipt unless otherwise agreed.
7.3 The Client may only be entitled to offset with undisputed or legally established claims. He/she is entitled to assert a right of retention against the Contractor only against counterclaims stipulated under this contract.
8. Client obligations / liability
8.1 The Client is obliged to comply with all necessary obligations to cooperate without delay. He/she must provide the Contractor with all necessary information, data, access rights, and content in a timely manner.
8.2 The Client shall be liable for all consequences and disadvantages that the Contractor or third parties incur resulting from improper or illegal use of the services offered by the Contractor, or from failure by the Client to fulfill his/her contractual obligations.
8.3 The Client is responsible for providing adequate data protection precautions appropriate as professionally as possible, so that the data can be reproduced with justifiable effort from the data backup that is provided in machine-readable form.
9. Term and Termination
9.1 The term of the cooperation is in accordance with individual contracts / offers.
9.2 Termination must be made in writing in order to be valid.
9.3 The right to terminate the agreement on extraordinary grounds remains unaffected. Important grounds for termination on the part of the Contractor are particularly:
• if the Client is in default of payment and despite renewed request for payment by setting a grace period does not make a payment;
• an application for the initiation of insolvency proceedings is filed against the Client’s assets;
• such a procedure is refused or terminated in the absence of the costs of the proceedings;
• the Client has voluntarily or involuntarily initiated proceedings for cancellation, liquidation or execution;
• the Client has ceased his/her business activity or is insolvent.
10. Claims for defects
10.1 If there is a defect in the services provided by the Contractor, the latter will either rectify the defect within a reasonable period of time at his/her discretion or render the contested service anew free of defects (overall rectification).
10.2 If the rectification fails despite repeated efforts, in particular because the defect is not delayed or avoided in spite of removal attempts, or if the rectification is unreasonably delayed or unjustifiably rejected, the Client may demand reduction of the agreed remuneration or withdraw from the contract in accordance with statutory provisions.
10.3 The Client shall have no claim for defects due to errors caused by damage, incorrect connection, improper operation, contrary use of contract, use in an environment other than that which is agreed upon, external influence, or force majeure. The Client also has no claim for defects if he/she or a third party has changed the services without the Contractor’s participation, unless the Client proves that the change does not significantly complicate the analysis or processing costs by the Contractor and the service defect was already in existence. The Contractor makes no guarantee for defects that are not reproducible. This does not apply if the Contractor acts fraudulently.
11. Limitation of liability
The Client’s claims for damages or compensation for futile expenses are governed by this regulation.
11.1 The Contractor is liable for own behavior as well as behavior of vicarious agents or representatives in cases of deliberate or gross negligence according to the legal regulations. The Contractor is also liable only for the loss of life, body or health, or for the culpable violation of essential contractual obligations (cardinal obligations), i.e. such obligations, the fulfillment of which is necessary for the achievement of the purpose of the contract and on which the Client was entitled to rely, as well as fraudulent intent. Any further liability is excluded. In case of slight negligence, the claim for damages due to the breach of essential contractual obligations is limited to the contractually foreseeable damage. Claims on the part of the Client for compensation of indirect damage, except in case of injury to life, body or health, are excluded.
11.2 Liability for data loss is limited to the typical recovery effort that would have been incurred if backup copies were made in a regular and safe manner, unless one of the prerequisites according to Article 11.1 (1) or (2) exists.
11.3 The Contractor is not liable for the functioning of the telecommunication connection (telephone / ISDN / DSL lines etc.) to the server in case of power failures as well as for server failures that are not within the Contractor’s control. Furthermore, the Contractor is not liable for damage caused by force majeure or comparable events. In particular, strikes, official orders, the failure of telecommunications networks or gateways of other operators as well as disruptions in the area of other telecommunications or service providers are considered comparable events.
11.4 Liability under the provisions of the Product Liability Act remains unaffected.
11.5 The Contractor’s strict liability for damages (§ 536 a BGB) for defects existing at the time of contract termination is excluded. The liability according to Article 11.1 (1) and (2) of this contract remains unaffected
12. Liability insurance
The Contractor has financial and public liability insurance for the media sector at Markel International Insurance Company Limited, Luisenstrasse 14, 80333 Munich, the terms of which can be viewed here.
13. Notes on data protection / data security
13.1 The Client is hereby informed, in accordance with § 33 para. 1 of the Federal Data Protection Act (BDSG) and § 12 para. 1 of the Telemedia Act (TMG) and the same statutory provisions that the Contractor processes the participant data in machine-readable form, and uses machine processing for tasks arising from the contract.
13.2 If the Contractor uses third parties to provide the services offered, he/she is entitled to pass on the subscriber data if this is necessary for the proper maintenance of service within the scope of the contract’s purpose.
13.3 If the Client collects, processes or uses personal data him/herself or through the Contractor, he/she shall declare that he/she is entitled to do so in accordance with the applicable provisions and, in the event of a breach, release the Contractor from third party claims.
13.4 Insofar as the data to be processed is personal data, a data processing contract is to be used. In this respect, the Contractor will follow the Client’s instructions regarding the handling of the processed data. Instructions must be given to the Contractor in timely manner and in writing.
13.5 After contract termination, the Contractor will delete all of the Client’s existing data immediately or return it to the customer, insofar as this data is not required for billing purposes.
14. Final provisions
14.1 Jurisdiction is in the Contractor’s respective location, provided that the Client is a registered trader, a legal entity or a special fund under public law.
14.2 Should a provision be wholly or partially ineffective or lose its legal validity later, this shall not affect the validity of the remaining provisions. The same applies if the contract contains a loophole.