Terms and conditions Germany
General terms and conditions of getunik GmbH, Frankfurter Allee 56, DE-10247 Berlin (hereinafter referred to as “Agency”). Status: April 2018. Version: 1.0
1. Subject of the contract
These general terms and conditions apply to all services that the agency provides to the customer. These can be services and works, such as consulting, conception, creation, implementation, as well as the evaluation of communication measures and online fundraising.
The parties agree on the scope of the services to be provided by the agency in separate offers. In the event of contradictions between an offer and these General Terms and Conditions, the offer shall take precedence. An offer from the Agency usually includes an estimate of costs and may also be designated differently. It shall be sent to the customer in writing or electronically. The customer shall confirm the offer in the form of a written order confirmation or as an electronic response.
The Agency shall be bound by an offer for a period of two weeks from the date of submission of the offer, unless another period is specified in the offer documents. Decisive for the total amount to be paid is getunik’s actual expenditure up to a maximum exceeding of the relevant cost estimate by ten percent. The agency shall notify the client in writing of any exceeding of the confirmed cost estimate by more than ten percent as soon as foreseeable, but in any case before the cost framework is exceeded. In this case, the parties shall agree in good faith on how to proceed.
1.3 Fees or charges
All costs and fees agreed with the agency are exclusive of VAT and any other taxes or fees.
1.4 General Terms and Conditions
General terms and conditions of the customer are excluded.
2. Commissioning of third parties and on-site operations
2.1 Commissioning of third parties
The Agency may call upon third parties to fulfil its contractual obligations.
In individual cases, which are mentioned in the offer and which the customer releases beforehand (e.g. online advertising services), the third party shall become the customer’s contractual partner. In these cases the Agency shall represent the Customer and the Agency shall act on behalf of the Customer.
2.2 On-site assignments
Temporary assignments of the Agency’s employees at the Customer’s place of business (“place of assignment”) shall be specified in the offer, taking into account the public holidays at the place of assignment.
3. Duties and responsibilities of the customer
The customer acknowledges his obligation to cooperate as a prerequisite for the Agency’s provision of services and thus as his contractual obligation. In particular, the customer shall immediately make and notify the Agency of any decisions incumbent upon it regarding project implementation and project content, and shall immediately examine any proposed changes made by the Agency. The Client shall inform the Agency without being asked of typical and/or specific requirements and procedures, unless these are not relevant to the provision of the service. The Client shall provide the Agency in good time and unsolicited with all technical and other documents and information necessary for the successful completion of the project. If the Agency conducts workshops or other training services, the Client shall cancel these in good time, i.e. no later than two (2) working days prior to commencement, if the Agency is prevented from doing so. If he breaches this obligation more than once per contractual year, the Agency shall charge him 50% of the agreed costs for each case of cancellation. If the Client does not fulfil a duty or obligation, or does not fulfil it properly or late, and if the Agency is therefore unable to provide its services in accordance with the contract, agreed deadlines for execution shall be extended in accordance with the delay plus a reasonable period for resuming work. The Agency shall invoice the Customer for the additional expenditure caused thereby, in particular for extended provision of the personnel or material resources used, at the agreed rates. The customer shall bear sole responsibility for compliance with laws by the agreed work results. Unless the parties agree otherwise in the offer, the customer shall obtain the rights necessary for the publication of content itself.
4. prices, expenses and terms of payment
4.1 Hourly rates
The applicable hourly rates result from the individual orders. All rates are exclusive of value added tax.
If daily rates are charged instead of hourly rates, a person day is calculated with a maximum of 8 hours. In the case of face-to-face workshops, a person day of 10 hours is calculated in deviation from this, even if the workshop does not last that long. Partial days will be charged pro rata. No surcharges will be charged unless otherwise agreed. Travel expenses will be invoiced separately by the agency by arrangement. Unless otherwise agreed, the Agency shall invoice travel times to locations outside the Customer’s headquarters at 50% of the agreed hourly rates.
Unless otherwise agreed in the offer, the invoice will be issued at the end of the month for additionally agreed services in accordance with the accrued expenses. Unless otherwise agreed, the Agency’s invoices are due for payment within 10 days of receipt.
5. Inspection and acceptance of works
The Client shall inspect the works created by the Agency within two (2) weeks of receipt and notify the Agency in writing of any defects within this period. If the Client fails to carry out the examination and notification in due time, or if the Client begins productive use without acceptance, the works shall be deemed to have been accepted and approved. Works shall also be deemed to have been accepted if the parties have agreed on a certain number of coordination/revision rounds in the context of an offer and the Client requests further coordination/revision rounds. This shall not apply if the Client proves that the Agency has not or insufficiently implemented the Client’s change requests after the previous rounds of coordination/revision.
In the event of defects, the Agency shall have the choice of repairing the defective works or delivering works free of defects.
6. Warranty and liability
The customer is aware that it is impossible to develop completely error-free software according to the current state of technology. This shall apply all the more if the Agency’s solutions are only functional on the basis of other software products. The Agency shall not be liable for defects or errors resulting from incorrect handling of the software by the Client. The Agency shall have unlimited liability for damages caused by gross negligence or intent on the part of the Agency, its legal representatives or vicarious agents. The Agency shall also be liable without limitation for damages arising from culpable injury to life, body or health. Only in the case of breach of fundamental contractual obligations, the violation of which endangers the purpose of the contract and on the fulfilment of which the customer could rely to a special degree (so-called cardinal obligations), shall the Agency also be liable in cases of simple negligence. This liability shall be limited to compensation for damages that were typically foreseeable at the time of conclusion of the contract. A further limitation of liability for all cases of slight negligence to the respective project volume shall be agreed in the individual orders, if necessary on a case-by-case basis. The above limitations of liability shall also apply to the benefit of the legal representatives and employees of the Agency and shall also apply in the case of pre-contractual or tortious liability. The indemnification obligations of the agency from legal warranty remain reserved.
6.1 Warranty in kind
The agency guarantees the contractual and careful execution of the contractually agreed services in accordance with the usual industry standards, taking into account its special knowledge and experience.
6.1.2 Work services
Work results which do not meet the agreed requirements or the quality customary in the industry at the time of acceptance will be objected to in writing by the customer after acceptance in accordance with point 7. Warranty claims become time-barred 12 months after acceptance by the customer.
All changes to work results (including source codes) by the customer or third parties that have not been carried out by the Agency or have not been authorised by the Agency shall render the associated warranty obligations completely void.
6.2 Legal warranty
The agency assures not to violate any property rights of third parties. In such cases, the Agency shall indemnify the Client from liability towards third parties and defend the Client against claims of third parties, provided that a) the claims of third parties are directly related to or resulting from the activities of the Agency within the scope of these General Terms and Conditions or an offer and b) the Client demands that the Agency conduct the lawsuit and settlement negotiations – in each case in consultation with the Client. The customer shall bear the costs of the legal dispute, whether in or out of court, and shall pay the damages awarded to the third party or agreed with him/her for the purpose of settlement. The customer shall immediately inform the Agency in writing of any third-party claims asserted. The customer shall support the Agency to an appropriate and reasonable extent.
7. Amendment procedure
Both parties may at any time propose to change the content and scope of the agreed services (hereinafter “Change Request”). Change Requests shall be submitted to the other Party in writing (if necessary also by e-mail or fax). If the Customer submits a Change Request, the Agency shall inform the Customer of the expected effort required to check the Change Request and its duration, as well as any additional remuneration that may be due for checking the Change Request. If the customer orders the check of the change request in accordance with the conditions that have been communicated, the agency will communicate its assessment of the effects (in terms of effort, duration and remuneration) if the change request is executed. Otherwise, the agency is not obliged to check the change request. The Customer shall pay for the examination of a Change Request on the basis of the agreed rates, even if the Agency is not subsequently commissioned to carry out the Change Request. The Agency shall not reject the execution of a Change Request without good cause. Substantial reasons are, for example, if, in the opinion of the Agency, the success of the agreed service would be jeopardized as a result of the implementation or if the Agency is not able to implement the desired change, for example, due to lack of know-how or personnel. The Client may reject change requests from the Agency without giving reasons. If he/she rejects change requests against the Agency’s recommendation, he/she shall assume responsibility for the consequences of the rejection. This has no influence on contractually agreed performance obligations of the agency. Contractual changes only become effective upon the signing of a written agreement that includes the changes to the previous service agreement associated with the implementation of the change request. Until then, the Agency shall continue the work on the basis of the existing contract.
The parties will keep secret all confidential information of the other party which comes to their knowledge in the course of the cooperation, i.e. they will protect it with due diligence against unauthorised access. Unauthorized persons within the meaning of this provision are not the subcontractors employed in accordance with the contract or employees of the Agency. The parties undertake to involve in the cooperation only such employees or third parties that they have previously committed to confidentiality in a comparable form. Confidential is all information of a party – regardless of its form – which is marked as confidential in writing or whose confidentiality is clearly evident from its nature, in particular business and trade secrets. This also includes proprietary source codes which the customer receives from the agency, as well as strategic, financial and personnel information, and information about members, donations and donors.
Non-confidential information is information of which the receiving party can prove that it either (i) is or was generally accessible, (ii) was already in the possession of the party without an obligation to confidentiality, (iii) was developed independently and without the use of confidential information by another party or (iv) has lawfully acquired the information from a third party who was not obliged to confidentiality.
The Agency shall be entitled to keep a copy of the work results and project documents for purely internal purposes, even if they contain confidential information. However, this entitlement does not imply any obligation, i.e. in particular the Agency cannot reserve any storage capacity beyond the period of project processing. The customer is solely responsible for the storage of his project information and results.
The confidentiality obligations continue for three years after the end of the respective contract.
Existing confidentiality agreements between the parties end with the beginning of the contract and are replaced by the provisions of this clause 10.
9. Data protection
The parties will comply with the applicable regulations for the protection of personal data. getunik will treat the client’s data with the utmost care and protect it from misuse and loss. To this end, getunik shall take technical and organisational measures that comply with the valid requirements of the DSGVO (German Data Protection Act). If the agency processes the client’s personal data as a processor on behalf of the client (e.g. in the context of hosting, support or development with access to the client’s real data), the parties shall enter into an agreement on order processing according to customary market standards.
9.1 All data of the client stored and processed by getunik are the exclusive property of the client and will be used by getunik exclusively for the purpose of fulfilling the contract.
9.2 To the extent permitted by law, the client shall permit getunik to evaluate the data stored by getunik for the client in an anonymous form, for example for statistical purposes, and to use the evaluations by getunik.
10. Property rights
10.1 Scope of the rights of use
Insofar as the object of the contract is work results developed for the customer (e.g. concepts, designs, software including source code), the Agency shall grant the customer a simple, spatially and temporally unlimited right of use for use in accordance with the contract upon acceptance. This right of use shall apply irrespective of any termination of the contract. The granting of exclusive rights of use shall be expressly agreed.
Section 13.1 does not apply to standard products that are part of work results. Standard products are delimitable products or solutions of the Agency or third parties that are subject to their own licence conditions. The Customer’s rights to these standard products shall be governed exclusively by their license terms. Images and photographs of third parties are also considered standard products. The customer shall procure any necessary rights of use/licenses for standard products.
Notwithstanding Section 13.1, the customer shall receive rights of use for work results that include “open source software” or adaptations of this software in accordance with the relevant license terms for this software (e.g. “GNU General Public License”). Both parties undertake to observe these license terms. The granting of rights in accordance with Section 13.1 shall not apply to materials or solutions (hereinafter referred to as “Agency IP”) already in existence at the Agency, including any changes and additions made to them. The Agency shall retain all rights to Agency IP at all times. The rights of use granted to the customer for the Agency IP incorporated into the work results shall be determined by the contractual purpose on which both parties are based. The isolated use of Agentur IP is excluded. The Agency shall be entitled, while observing its secrecy obligations, to make unrestricted use of the work results, including the know-how acquired in the course of carrying out a project, in particular the concepts, procedures, methods and interim results on which the work results are based.
10.3 Provision of Source Code
The Agency shall only owe the provision of source code if this has been expressly agreed in the individual case. If the provision of source code has been agreed, the Client shall be invoiced separately for all expenses incurred in this connection.
11. Commencement and termination
11.1 Term and termination
Contracts concluded on the basis of the offers shall enter into force on the date of the last signature, unless the offer specifies a different date (“commencement date”). If the Agency has provided services prior to the commencement, the provisions of these General Terms and Conditions or the relevant offer shall also apply to such services.
For the termination of individual orders, the contract-specific agreements or the legal reasons apply.
11.2 Termination for good cause
The right to terminate for good cause remains unaffected.
11.3 Form of termination
Notices of termination must be made in writing; text form and/or electronic transmission is excluded.
The parties will refrain from actively contacting persons of the other party involved in projects without their written consent for the purpose of solicitation. This shall apply during the term of a contract and for a further year after termination of the contract.
13. General provisions
The rights and obligations arising from an offer may not be assigned or otherwise transferred to third parties, either in whole or in part, without the written consent of the other party. Insofar as these General Terms and Conditions of Business or an offer requires the written form, this shall be deemed to be satisfied by the text form (i.e. a communication and/or its transmission via a ticket system, by e-mail or fax), unless the text form is expressly excluded.
Notifications must be made in writing, whereby the text form and/or the electronic transmission complies with the written form, unless this is expressly excluded. Changes require mutual written agreement; in this case, text form and/or electronic transmission is excluded.
14. Design note
The agency is entitled to place a discreet notice on a created software solution (e.g. a website) and to connect it to its website by means of a hyperlink. Form and content must be agreed in advance with the customer in writing (if necessary also by e-mail or fax). The customer shall permit the Agency to use the customer’s name, trademarks and logo as well as the designs created by the Agency for the Agency’s own advertising on its website and in presentations etc. This also applies beyond the termination of the contract. Press releases with reference to the client require the prior written (if necessary also by e-mail or fax) consent of the client.
15. Applicable law and place of jurisdiction
German law applies. Place of jurisdiction is Berlin.
Eva Hieninger, Partner, Managing Director Germany