General terms and conditions of business
- Scope of application
DME Digitales Marketing Experte e.K., owner Stefan Frenzel, Donauschwabenstreet 3, 85386 Eching, Germany (hereinafter referred to as “DME”) offers entrepreneurs services in the fields of marketing (on- and offline), web design and development, social media marketing and content management, search engine optimization (SEM) and interim management. The corresponding offers are directed exclusively at entrepreneurs and not at consumers. The contractual relationship between the customer and DME shall be governed by these General Terms and Conditions (GTC).
Conflicting or supplementary terms and conditions of the customer – in particular the customer’s GTC – shall not become part of the contract, even if DME performs a contract without expressly objecting to such terms and conditions.
- Definitions of terms
(1) Consumer in the sense of these GTC is every natural person who concludes a legal transaction for a purpose that can predominantly be attributed neither to his commercial nor his independent professional activity (§ 13 BGB).
(2) Entrepreneur in the sense of these GTC is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or self-employed professional activity (§ 14 BGB).
(3) A businessman in the sense of these GTC is either the person who operates a commercial business (§ 1 HGB) or the person who has the company name of his company entered in the commercial register (§ 2 HGB).
- Obligations of the customer to cooperate
(1) Customer shall provide DME in a timely manner with all contents and information necessary for the performance of the respective contract.
(2) within the scope of a contract for SEM services the customer shall support DME in the best possible way in the selection of keywords and shall in particular provide comprehensive information on the target group of the website and possible search terms. The customer alone shall be responsible for the selection of the keywords. This includes in particular the obligation to check keywords suggested by DME for their permissibility. If the customer does not object to keywords suggested by DME within 3 working days in text form, they shall be deemed as approved.
(3) Customer shall be obliged to ensure sufficient data backup itself before DME performs the Services. If such a backup is not successful, customer shall point this out to DME before the beginning of the work. Unless customer expressly points this out in advance, DME may assume that all of customer’s data with which it may come into contact are backed up.
(4) The contractual partners will reach agreement in individual cases as to when and in what way these cooperation services are to be provided by the customer. The scope shall depend in particular on the nature of the services to be rendered by DME. As a rule, the customer’s cooperation services shall be requested by DME with a lead time of at least five working days prior to their provision, unless the parties have agreed otherwise.
(5) If customer is in default with the performance of its obligations to cooperate, DME’s obligation to perform shall be suspended for the duration of the default, which cannot be performed without this action or can only be performed at unreasonable additional expense. Any additional expenditure caused thereby shall be reimbursed by customer to DME in addition to the agreed remuneration on the basis of the hourly rates applicable in each case. A statutory right of termination of DME shall remain unaffected.
- Granting of rights in contracts for the creation of a website
(1) The copyrights arising from the entire website and the individual sub-sites shall be held by DME. All rights of use which are necessary for the operation and updating of the website shall be granted by DME in full to the customer without any time limit. The corresponding rights are fully or partially further transferable and sublicensable by the customer. However, the granting of rights shall only become effective pursuant to § 158 para. 1 BGB (German Civil Code) when customer has paid the remuneration owed for the creation of the website in full. DME may provisionally permit a utilization of the website or individual elements prior to this date. This shall not result in a transfer of rights according to this section.
(2) DME shall not be exclusively entitled to use the contractual website at any time for demonstration purposes or as a reference for its work. For this purpose, it may, among other things, make copies of individual parts of the website (for example thumbnails), in particular of the homepage, publicly display, exhibit, demonstrate, broadcast or otherwise exploit the website. In doing so, however, he must always take the rights of the customer into consideration, refer to them in the usual place and name them. The right shall extend to the contractual website in the version delivered by DME as well as to later versions, provided that the original design act has not completely taken a back seat to the changes.
(3) Unless the parties have expressly agreed otherwise, DME shall be entitled to have its name mentioned as the author in the form of a note on the website created by it for the customer. This note shall read as follows: “Website creation DME 85386 Eching”. DME may affix this note itself and customer shall not be entitled to remove it without the consent of DME. In addition, DME shall be entitled to place a link to its corporate website in the immediate vicinity of the notice. In the event of subsequent changes to the website which go beyond its mere updating, customer shall update the notice accordingly and point out the subsequent change.
- Acceptance and payment for contracts for the creation of a website
(1) After completion of the website in accordance with the contract and notification of readiness for acceptance by DME, customer shall be obliged to accept the website in writing or text form within 5 working days. DME shall notify the customer in writing or in text form of the readiness for acceptance of the respective service or partial service. Customer shall be obliged to notify DME immediately in writing or in text form if during the acceptance test deviations from the contractually agreed requirements become known to it.
(2) DME shall be entitled at any time to submit parts of the website to customer for early partial acceptance, which customer has to grant, if the part is accessible to an assessment in this form and has been performed in accordance with the contract. Once parts of the website have been accepted, customer may no longer reject them or demand their modification at a later date, unless there are circumstances which customer could not yet recognize at the time of the partial acceptance.
(3) After the total acceptance of the completed website, the total remuneration, less any advance payments already made, shall be invoiced to the customer in the form of a final invoice. The outstanding amount is due for payment within 10 working days after receipt of the invoice. The remuneration shall be paid into the following account of DME: Sparkasse Freising, IBAN: DE 20 7005 1003 0025 7582 36, BIC: BYLADEM1FSI
(1) Claims for defects shall become time-barred after twelve months, unless the defect was fraudulently concealed.
(2) As long as customer has not yet paid the remuneration due under this contract in full and customer has no legitimate interest in retaining the remuneration in arrears, DME shall be entitled to refuse subsequent performance.
(3) DME shall not be liable in those cases in which customer has made changes to the service provided by DME, unless these changes had no influence on the occurrence of the defect.
(4) Customer shall support DME in the determination and elimination of the defect and shall immediately grant DME access to the documents from which the detailed circumstances of the occurrence of the defect can be seen. Notice of defects shall be given in writing or in text form by means of a comprehensible description of the symptoms of the defect, as far as possible proven by written records, hard copies or other documents illustrating the defects. The notification of defects shall enable the reproduction of the defect. Legal obligations of the customer to examine and notify defects remain unaffected.
(5) Before asserting claims for subsequent performance, the customer shall examine with due diligence whether a defect subject to subsequent performance exists. To the extent that an alleged defect is not subject to the obligation of subsequent performance (apparent defect), customer may be charged with the services provided by DME for verification and fault rectification at the respective valid remuneration rates of DME plus the expenses incurred, unless customer could not have recognised the apparent defect even if he had exercised due care.
(6) The place of performance for the subsequent performance shall be the registered office of DME. Subsequent performance may be effected by means of telecommunication transmission of software, unless the telecommunication transmission cannot reasonably be expected of the customer, for example for reasons of IT security.
(7) If customer sets DME a time limit for performance or subsequent performance, customer may only use the unsuccessful expiry of such time limit to withdraw from the contract or to claim damages in lieu of performance if customer has informed DME at the time of setting the time limit that it no longer wishes to use the services of DME after the unsuccessful expiry of the time limit. If customer has to issue a warning instead of setting a time limit, then customer shall also in this case inform DME at the same time as the warning that it no longer wishes to use the services after the unsuccessful expiry of the warning.
(8) Customer may only withdraw on account of a breach of duty which does not consist in a defect in a purchased item or a work if DME is responsible for this breach of duty.
- Warranty for contracts for SEM services
(1) In the context of contracts for SEM services, DME will only provide advice and assistance. The statutory provisions shall apply to the warranty in all other respects.
(2) DME shall endeavour to take its measures in conformity with the guidelines of the respective search engine. The parties are aware, however, that individual agreed measures for search engine optimization may violate the guidelines of individual search engines and that this does not constitute a defective performance by DME. This shall apply in particular if the customer has explicitly approved certain measures of DME in knowledge of the guidelines.
(1) DME shall be liable without limitation for intent and gross negligence and in accordance with the provisions of the Product Liability Act. In cases of slight negligence DME shall be liable for damages arising from injury to life, body and health of persons.
(2) In all other respects the following limited liability shall apply: In the case of slight negligence DME shall only be liable in the event of a breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the customer may regularly rely. The liability for slight negligence shall be limited in amount to the damages foreseeable at the time of the conclusion of the contract, the occurrence of which must typically be expected.
(3) DME shall not be liable for the loss of data and/or programs to the extent that the damage is due to customer’s failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
(4) The legal responsibility, in particular the responsibility under telemedia law, press law and competition law for the content of the customer’s website or social media channel, which the customer has placed there or made available to DME for placement, shall be borne exclusively by the customer.
(5) DME shall only be liable for breaches of competition law and similar infringements which are based on the design of the entire website if they have arisen as a result of its special design of the website and are based on ideas which it has contributed. DME shall not be liable for infringements inherent in a business model pursued by the customer. Otherwise DME shall only be liable for infringements of law if it was aware of the infringement.
(6) The above provisions shall also apply in favour of the vicarious agents of DME.
(7) Customer guarantees that the contents and information provided by it do not interfere with the rights of third parties in an illegal manner. It shall indemnify DME against any claims in this connection and shall reimburse it for the reasonable costs of the legal defence.
(1) The parties are obliged to maintain secrecy about confidential information in connection with the contractual relationship.
(2) Such confidential information shall be exempt from this obligation,
- which were demonstrably already known to the recipient at the time of conclusion of the contract or subsequently become known to the recipient by a third party, without this infringing a confidentiality agreement, statutory provisions or official orders;
- which are publicly known at the time of conclusion of the contract or are made publicly known thereafter, provided that this is not due to a breach of this contract;
- which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permissible and possible, the recipient obliged to disclose shall inform the other party in advance and give it the opportunity to take action against the disclosure.
- Assignment, right of retention and offsetting
(1) The assignment of claims which are not monetary claims is only permitted with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld.
(2) The customer shall only be entitled to a right of set-off if its counterclaim has been legally established, is not disputed or acknowledged by DME or is in a close synallagmatic relationship with DME’s claim.
(3) The customer may only exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
- Naming the client as reference client / orders of other clients
(1) DME may name the customer on its website or in other media as a reference customer. DME may furthermore publicly reproduce the services rendered for demonstration purposes or refer to them, unless the customer can assert a legitimate interest to the contrary.
(2) Unless otherwise expressly agreed in writing, DME shall be permitted, during the term of the Agreement and beyond, to accept and process orders from customers in the same or similar industries. In the case of contracts for SEM services, this shall also and in particular apply to the optimization for similar or identical search terms of different customers.
- Final provisions
(1) The exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relationship shall be the place of business of DME, if the customer is a merchant, a legal entity under public law or a special fund under public law. If DME brings an action, it shall also be entitled to choose the place of jurisdiction at the place of business of Customer.
(2) German law applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).