General Terms and Conditions of #die.Digitalfabrik GmbH

Preliminary note

The following General Terms and Conditions (GTC) regulate the contractual relationship between the client (hereinafter referred to as “client”) and #die.Digitalfabrik GmbH, Phönixseestrasse 14, 44263 Dortmund (hereinafter referred to as “#die.Digitalfabrik”).

1. Object of performance

1.1 #die.Digitalfabrik provides comprehensive services in the area of programming as well as optimization of websites, also in the extended sense, programming and operation of digital sales channels for services and goods, also in the extended sense, search engine optimization and search engine advertising, optimized use of Google Ads, as well as social marketing and online marketing in the general and extended sense.

1.2 #die.Digitalfabrik will perform the tasks assigned to it to the best of its knowledge and belief in accordance with the respective state of the art. #die.Digitalfabrik does not guarantee the client an increase in sales figures in the respective digital sales channel managed, neither directly nor through online marketing.

1.3 #die.Digitalfabrik will make necessary adjustments and optimization of the client’s website. For this purpose, #die.Digitalfabrik is also entitled to edit the programmed source code of the website and/or to change its design by placing links and/or image and/or sound material or to make bookings of keywords on behalf and for the account of the client. #die.Digitalfabrik does not guarantee the client an increase in sales figures in the respective digital sales channel managed, neither directly nor through online marketing.

1.4 #die.Digitalfabrik also advises the client on the content and technical design of the website and other online marketing channels.

1.5 #die.Digitalfabrik is entitled to entrust third parties with the fulfillment of individual or all contractual obligations.

2. Offer and conclusion of contract

2.1 All offers from #die.Digitalfabrik are subject to change and non-binding.

2.2 Deliveries, services and offers by #die.Digitalfabrik are made exclusively on the basis of these GTC. Any general terms and conditions of the client shall not apply.

2.3 The contract between the parties is only concluded if the client signs and returns the order confirmation or offer sent by #die.Digitalfabrik. Subsidiary agreements must be made in writing.

2.4 #die.Digitalfabrik is entitled to refuse individual orders of the client within the framework of an existing contractual relationship, in particular if, in the view of #die.Digitalfabrik, the order contains racist, discriminatory, violence-glorifying or sexist content or if the execution of the order by #die.Digitalfabrik would violate the moral, religious or ideological values of third parties.

3. Functionality and notification of defects

3.1 #die.Digitalfabrik does not guarantee that third-party services, in particular networks or server services, will always be provided without interruptions and without errors or that they will be sufficiently available.

3.2 The client is obligated to notify #die.Digitalfabrik immediately by e-mail of any defects that occur, stating the information that is useful for clarification.

4. Warranty

4.1 Defects in the sense of these GTC are exclusively reproducible errors and/or malfunctions caused by defective services of #die.Digitalfabrik or for which #die.Digitalfabrik is responsible. This therefore does not include functional impairments caused by hardware defects, environmental conditions, operating errors, unauthorized or harmful data such as computer viruses and the like. Likewise, exceeding of the possibly agreed budget for costs due to booked advertising / advertisements in the extended sense of online marketing shall not be considered as defects in the sense of this contract.

4.2 #die.Digitalfabrik is entitled to rectify defectively provided services. This improvement can be done by repeatedly reviewing and analyzing the results or by revising the online marketing strategy.

4.3 If the rectification of defects fails three times within a reasonable grace period set in writing, the client shall be entitled to withdraw from the contract.

5 Prices, payments, due date, retention

5.1 The client shall pay #die.Digitalfabrik the price listed in the respective offer. This price shall be understood as net price, unless expressly stipulated otherwise.

5.2 Invoicing shall generally take place with the provision of the service, the chargeable partial service or any agreed time intervals. Payment is due within 7 days of the invoice date without any deductions, unless the parties expressly agree otherwise.

5.3 Any third-party costs incurred in connection with the provision of the contractually agreed services shall be covered by the client, #die.Digitalfabrik shall coordinate these with the client in advance.

5.4 The client shall have no right of retention due to invoices not issued or not issued properly. § 286 para.3 BGB remains unaffected.

6. Contract term, termination

6.1 The contract shall run for the period specified in the offer or order confirmation, unless the parties expressly agree otherwise.

Unlimited contractual agreements may be terminated at any time by either party with twelve weeks’ notice to the end of any quarter. This shall not affect the right to extraordinary immediate termination for good cause. Any termination must be in writing.

6.2 An important reason exists in particular for #die.Digitalfabrik if the client repeatedly and despite notice by #die.Digitalfabrik violates their obligations existing under these GTC, in particular, if a third party asserts the claims according to § 6.1. following clause 7 of these GTC.

7. Third party rights and indemnification

7.1 #die.Digitalfabrik is not liable for the content published on behalf of clients, including in the extended sense, or the website, especially if they violate the rights of third parties. It is clarified that the client alone is responsible for ensuring that the rights of third parties are not violated by the published content. In particular, when using third party services in relation to marketing and/or commercial email and/or SMS, the Customer shall ensure that it has the express and still valid consent of the relevant recipient or legal permission to send or receive advertising or commercial communication. #die.Digitalfabrik is therefore not liable for any violations of intellectual property rights and/or copyright or competition law claims of third parties against the client.

7.2 If and to the extent that a third party asserts claims against #die.Digitalfabrik with regard to the information provided by the client or the aforementioned rights, the client shall indemnify #die.Digitalfabrik upon first request against all claims, including the reasonable costs of legal defense. Further claims for damages by #die.Digitalfabrik remain unaffected.

8. Copyright usage rights

The #die.Digitalfabrik is entitled to all copyrighted rights of use and ancillary copyrights to the Internet pages and content created by it in the course of fulfilling its contractual obligations, unless the parties expressly stipulate otherwise.

9. Collaboration

9.1 The client shall provide #die.Digitalfabrik with all information required and/or requested for the performance of the contract.

9.2 If the client does not comply with these obligations, #die.Digitalfabrik is released from its obligation to perform.

9.3 Furthermore, the client undertakes to inform #die.Digitalfabrik without delay of any status changes in his company that may be of significance for the present contractual relationship.

10. Liability

10.1 #die.Digitalfabrik is liable for
– without limitation in accordance with the statutory provisions for damage to life, limb and health resulting from a negligent or intentional breach of duty.
– for damages based on intentional or grossly negligent breaches of contract as well as fraudulent intent. The liability for damages is limited to the foreseeable, typically occurring damage, unless #die.Digitalfabrik has acted intentionally. In case of slight negligence, #die.Digitalfabrik is liable for property damage and financial loss only in case of breach of essential contractual obligations.
– for damages caused by simple negligence, insofar as this negligence concerns the violation of essential contractual obligations or a cardinal obligation. However, #die.Digitalfabrik is liable in these cases only to the extent that the damages are typically associated with the contract and are foreseeable.

10.2 Any further liability of #die.Digitalfabrik is excluded regardless of the legal nature of the asserted claim. This shall also apply in particular to claims in tort, claims for reimbursement of futile expenses instead of performance and claims based on a delay in performance or impossibility due to force majeure. Insofar as the liability of #die.Digitalfabrik is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents of #die.Digitalfabrik.

10.3 Liability of #die.Digitalfabrik is also excluded if #die.Digitalfabrik cannot fulfill the contractual obligation due to improper performance of a supplier or service provider.

11. Data protection

The client agrees that in the context of the fulfillment of the contractual obligations to #die.Digitalfabrik data about his person may be stored, changed and / or deleted and may also be transmitted to third parties if necessary or required.

12. Secrecy of confidential information

12.1 The parties undertake to keep all confidential information obtained in connection with the contractual cooperation strictly secret and not to use or exploit such information beyond the scope of fulfilling their contractual obligations or to disclose it to third parties without express written consent.

12.2 Confidential information within the meaning of these GTC shall mean all information communicated as well as data, documents and materials handed over which are provided directly or indirectly within the scope of the contract and which are designated as confidential.

12.3 The Contracting Parties shall provide information to their employees and staff only to the extent necessary for the performance of the activities, and shall ensure that even the persons necessarily informed are bound to confidentiality under the terms of these GTC.

13. Prohibition of assignment

The assignment of claims of the client to a third party is only permissible with the prior written consent of #die.Digitalfabrik

14. Offsetting

Offsetting against claims of #die.Digitalfabrik is only permitted with undisputed or legally established claims.

15. Final clauses

15.1 Amendments and supplements to this contract must be made exclusively in writing. There are no ancillary agreements.

15.2 #die.Digitalfabrik reserves the right to change these GTC at any time without giving reasons, unless the change is not reasonable for the client. #die.Digitalfabrik will notify the client of any changes to the GTC in a timely manner. If the client does not object to the validity of the new GTC within two weeks after notification, the amended GTC shall be deemed accepted by the customer.

15.3 The place of performance is the registered office of #die.Digitalfabrik.

15.4 The exclusive place of jurisdiction is the registered office of #die.Digitalfabrik.

15.5 German law shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG) incorporated into German law.