| 1. |
General information |
| 1.1 |
The following terms and conditions apply to legal transactions and services of 2HM Business Services GmbH (hereinafter referred to as “2HM BS”) with its customers. Conflicting General Terms and Conditions or deviating conditions of the customer will not be recognised unless 2HM BS has agreed to their validity in writing. |
| 1.2 |
The current version of these terms and conditions shall also apply to all future business transactions with the customer, even if their validity is not specifically mentioned again. |
| 2. |
Scope of services/processing of orders/ obligations of the client |
| 2.1 |
The scope of services is defined by the product/service description in the written offer from 2HM BS. Additional and/or subsequent changes to the product/service descriptions require written confirmation by 2HM BS. |
| 2.2 |
The customer must immediately object to the contents of meeting minutes transmitted by 2HM BS if he does not want the contents presented to be valid against him. |
| 2.3 |
2HM BS is entitled to make partial deliveries, provided these are reasonable for the customer. |
| 2.4 |
In the absence of a separate agreement, 2HM BS is not obliged to release interim results, drafts, layouts, source files etc. belonging to the contractual service. |
| 2.5 |
Without a separate agreement, the patent, sample, copyright and trademark protection or registration of the ideas, suggestions, proposals, concepts, drafts and other services delivered within the scope of the contract is not owed. |
| 2.6 |
The risk of the admissibility of the services of 2HM BS under competition and/or intellectual property law is borne by the customer. 2HM BS does not check the services from a legal point of view. Competition, advertising, brand or other legal checks are only the responsibility of 2HM BS if this has been expressly agreed in writing. In this case, the customer will bear the additional costs incurred, e.g. by engaging a law firm. 2HM BS is not liable for the registrability of the designs and services under trademark law. |
| 3. |
Cooperation services of the client |
| 3.1 |
The customer supports 2HM BS in the fulfilment of its contractually owed services. This includes in particular the timely provision of information, materials, data, including all access data as well as hardware and software, as far as the co-operation services of the Customer require it. With the placing of the order the client nominates by name a technically competent and authorized person as contact person for the contractor. |
| 3.2 |
The latter shall provide the contractor with the documents and information required to carry out his work. |
| 3.3 |
Content to be provided by the client must be made available in a common, directly usable digital format. The requirements in detail are defined in the service description of the offer. If it is necessary to convert the content provided by the customer into another format, the customer shall bear the costs incurred for this according to the usual hourly rates of 2HM BS. |
| 3.4 |
If the customer realises that his own information, requirements or contents are incorrect, incomplete, ambiguous or not feasible, he must inform 2HM BS of this and the consequences that are apparent to him immediately. |
| 3.5 |
Cooperation services of the customer, which are owed within the framework of the contract, will not be remunerated or credited to the remuneration agreed with 2HM BS, unless expressly agreed otherwise. |
| 4. |
Placing of orders to third parties |
| 4.1 |
2HM BS is entitled to carry out the assigned work itself or to commission third parties to do so. |
| 4.2 |
2HM BS is entitled but not obliged to place orders for the production of advertising material and/or the acquisition of photographs, images or graphics of third parties in the name and for the account of the customer, unless the customer expressly states otherwise when placing the order. 2HM BS is thereby entitled to accept terms and conditions customary in the industry at the expense of the customer. The customer hereby grants a corresponding power of attorney. |
| 4.3 |
2HM BS is not liable for the services of third parties who have been commissioned in the name of the customer in accordance with the above point 4.2. or who 2HM BS has merely mediated. This applies in particular to the services of photographers, models, printers, dispatch service providers and other so-called letter store services. Such services are generally only brokered by 2 hm BS. The contract is concluded directly with the respective third party and the customer. In these cases, the customer must contact the respective third party that has provided the services directly. |
| 5. |
Delivery, delivery times |
| 5.1 |
Delivery/production deadlines and delivery/production dates are only binding if 2HM BS confirms the binding nature of the contract in writing. In any case, they only apply if the customer has duly fulfilled any obligations to cooperate (e.g. procurement of documents, releases, provision of information, access data, images, films and other content required for the fulfilment of the contract, preparation of service catalogues/specifications). The delivery/production period is extended in the event of unforeseen obstacles which are outside the control of 2HM BS, insofar as such obstacles can be proven to have a considerable influence on the delivery of the delivery item. The delivery period is extended according to the duration of such measures and obstacles. 2HM BS will inform the customer immediately of the beginning and end of such obstacles. |
| 5.2 |
Templates and drafts provided by 2HM BS are only binding in terms of color, image, line or sound design when their corresponding realisation possibility has been confirmed in writing by 2HM BS. |
| 5.3 |
If 2HM BS defaults on its services, it must first be granted a reasonable period of grace. If the grace period expires without result, the customer can withdraw from the contract. Compensation for damages caused by delay can only be claimed up to the amount of the order value. |
| 6. |
Changes in services |
| 6.1 |
If the customer wishes to change the contractually agreed scope of services, he must inform 2HM BS of this in writing. 2HM BS will examine the customer’s request for change and its effects on the existing agreement. The examination is to be paid at the usual hourly rate of 2HM BS. |
| 6.2 |
2HM BS will inform the customer of the result of the test. 2HM BS will either submit a detailed proposal for the implementation of the requested change or explain why the requested change cannot be implemented. If the change is feasible, the contractual parties will agree on the content of the proposal for the implementation of the requested change. If an agreement is reached, the contract will be amended in this respect. If no agreement can be reached, the original scope of services will be retained. |
| 6.3 |
Agreed deadlines shall be postponed, if and insofar as they are affected by the amendment procedure, taking into account the duration of the examination, the vote on the amendment proposal and, if applicable, the requests for changes to be carried out, plus an appropriate start-up period. 2HM BS will inform the customer of the new deadlines. |
| 7. |
Acceptance of work services |
| 7.1 |
If 2HM BS performs work services, the customer is obliged to accept the services immediately. |
| 7.2 |
If the customer does not expressly accept the services of 2HM BS, these are deemed accepted 14 days after delivery. |
| 7.3 |
Upon request by 2HM BS, the customer is also obliged to release drafts and interim results if these can be reasonably assessed. |
| 7.4 |
Change requests after approval represent a change in performance (see point 6). |
| 8. |
Rights of use |
| 8.1 |
2HM BS grants the customer all rights of use necessary for the use of the goods to the extent agreed for the order, upon settlement of all invoices relating to the order. In case of doubt 2HM BS fulfils this obligation by granting non-exclusive rights of use within the territory of the Federal Republic of Germany for a limited period of time for the duration of the use of the advertising material and/or the design or programming. Any use beyond this, in particular editing and modification, requires the prior written consent of 2HM BS. 2HM BS is not obliged to grant this consent. |
| 8.2 |
Rights of use for work that has not been fully paid for at the end of the contract remain with 2HM BS, unless otherwise agreed. |
| 8.3 |
If photos, images or graphics of third parties are acquired for the purpose of fulfilling the contract (e.g. via photo agencies), the acquisition of related rights is carried out via 2HM BS. The licence fees incurred for this will be charged to the customer. |
| 8.4 |
The transfer of rights of use from the customer to third parties requires the prior written consent of 2HM BS. |
| 8.5 |
The above provisions also apply to any use, even partial, of the works and services (presentations) presented or handed over by 2HM BS with the aim of concluding the contract, whether they are protected by copyright or not. This also applies to the use in modified or edited form and to the use of the ideas underlying the works and services of 2HM BS, insofar as these have not been reflected in the previous advertising material of the customer. Rights of use are only acquired here if a separate contract is concluded for the use. Acceptance of a presentation fee does not constitute approval for the use of the work and services of 2HM BS. |
| 8.6 |
Templates, files and other working materials (in particular negatives, models, original illustrations etc.), which 2HM BS creates or has created in order to provide the service owed under the contract, remain the property of 2HM BS. There is no obligation to return them. 2HM BS is not obliged to store them. |
| 8.7 |
2HM BS has the right to use all works produced for the customer in the context of self-promotion in all media. Insofar as the order includes the production of advertising material, 2HM BS must be provided with an appropriate quantity of the advertising material for these purposes free of charge. 2HM BS is entitled to name the customer as a reference. |
| 9. |
Prices, terms of payment, default of payment |
| 9.1 |
2HM BS invoices monthly. Invoicing takes place at the end of each month. Payment is due 14 days after receipt of the invoice by the customer. Monthly invoicing is based on time and effort on an hourly basis and on the basis of a supplied activity report (Excel file). A final invoice is issued at the end of the respective order. 2HM BS is also entitled to invoice for partial services. |
| 9.2 |
All prices are subject to the applicable statutory value added tax. |
| 9.3 |
The agreed prices do not include packaging, freight, postage, insurance or other shipping costs. These costs will be charged to the client. Contributions to the social insurance for artists, fees for collecting societies (e.g. GEMA), customs duties, or other fees or charges, including those arising subsequently, will also be charged to the client. |
| 9.4 |
If no remuneration has been agreed between the parties, the customer must pay 2HM BS the usual remuneration rates for this service. |
| 9.5 |
In the case of advertising, the list prices of the advertising media valid on the day of publication shall be binding. |
| 9.6 |
The customer must reimburse 2HM BS in full for any direct debit that is not honoured or returned. 2HM BS can demand a lump sum of EUR 2.50 without any damage/expense analysis. If a direct debit authorisation has been issued by the Ordering Party, the Ordering Party undertakes to inform 2HM BS immediately of any change in his bank details. |
| 9.7 |
Objections to fee settlements by 2HM BS must be raised within two weeks of receipt of invoice. This does not affect the due date of the invoice. Failure to raise objections in good time shall be deemed to constitute approval. |
| 9.8 |
The customer can only offset against claims of 2HM BS with undisputed or legally established claims. |
| 9.9 |
If the customer is in arrears with the payment of an invoice, 2HM BS is entitled to suspend further work, even if it concerns a different order, until full payment has been made. |
| 9.10 |
Proposals of the client or his other cooperation have no influence on the amount of the remuneration. |
| 10. |
Warranty |
| 10.1 |
For 2HM BS there is freedom of design within the scope of the contract. Warranty claims in respect of artistic design are only valid if 2HM BS has not observed the recognised rules of the trade. |
| 10.2 |
Insofar as 2HM BS provides services on the basis of requirements and specifications (functional specifications and/or performance specifications) of the customer, the customer must check for himself that the requirements set meet his wishes and needs. 2HM BS is not obliged to check the requirements included in a requirements specification or service description with regard to the intended use. |
| 10.3 |
The warranty obligation of 2HM BS is limited to the rectification of a defect within a reasonable period of time. The purchaser reserves the right to demand a reduction of the remuneration or cancellation of the contract if the rectification of the defect fails. |
| 10.4 |
The right to claim damages based on regulations other than warranty law remains unaffected. |
| 10.5 |
The limitation period for warranty claims is 1 year. |
| 10.6 |
The contracts concluded between the parties can be terminated with a notice period of 6 weeks to the end of the quarter, unless otherwise agreed in the order. Terminations must be made in writing. |
| 11. |
Liability |
| 11.1 |
2HM BS is liable without limitation in accordance with the statutory provisions in cases of intent and gross negligence, as well as for damages resulting from injury to life, body or health, on the basis of the mandatory provisions of the Product Liability Act, as well as for the infringement of third party copyrights by the services used in accordance with the contract. |
| 11.2 |
In case of culpable violation of essential contractual obligations, 2HM BS is liable for the amount limited to the typically foreseeable damage. This is limited to the respective order value, in case of continuous obligations to the remuneration to be paid in the respective calendar year. Should the contract value in individual cases not correspond to the typically foreseeable damage, the liability of 2HM BS is limited to the amount covered by 2HM BS’s business liability insurance. |
| 11.3 |
No further liability on the part of 2HM BS exists. In particular, 2HM BS is not liable for damages to third parties, loss of profit or loss of data. |
| 11.4 |
The above limitation of liability also applies analogously to the legal representatives as well as employees and vicarious agents of 2HM BS. |
| 12. |
External content |
| 12.1 |
2HM BS is not responsible for materials and content, in particular pictures and graphics, provided by the customer. 2HM BS is not obliged to check the materials and contents for possible legal infringements. 2HM BS is in particular not liable for provided picture or film material. |
| 12.2 |
In the event that claims are made against 2HM BS on the basis of materials and content, pictures, graphics or film material provided by the customer, the customer shall indemnify and hold 2HM BS harmless. |
| 13. |
Retention of title |
| |
All delivered physical services remain the property (reserved goods) of 2HM BS until all monetary claims of 2HM BS arising from its business relationship with the customer have been met in full, even if payments have been made for the specific service. |
| 14. |
Privacy |
| 14.1 |
The contracting parties agree to confidentiality regarding the content and conditions of this contract and the knowledge gained during its execution. |
| 14.2 |
2HM BS ensures that only those employees who are involved in the respective project have access to confidential information. The confidential documents made available to 2HM BS by the customer will be destroyed by 2HM BS upon completion of the order (according to DIN 32757-1 security level 3 – security level 4 or 5 on request and for an additional charge) or returned to the customer on request. Evaluation data and calculations will be deleted 6 months after the end of the project at the latest. |
| 14.3 |
The customer uses an offer received from 2HM BS only for his own purposes. All rights are reserved by 2HM BS. The offer or parts of the offer may not be copied, reproduced or processed, duplicated or distributed using electronic systems without the prior written consent of 2HM BS. |
| 14.4 |
Confidentiality shall also apply beyond the termination of the contractual relationship. |
| 14.5 |
Upon request, the documents handed over in each case shall be handed over after termination of the contractual relationship unless the other party to the contract asserts a justified interest in these documents. |
| 15. |
Data protection |
| 15.1 |
The customer is advised that the personal data required for the processing of the user relationship will be stored by 2HM BS on data carriers. The customer expressly agrees to the collection, processing and use of his personal data. |
| 15.2 |
The customer agrees that personal data (inventory data) and other information concerning his usage behaviour (connection data), such as the time, number and duration of connections, access passwords, uploads and downloads, may be stored by 2HM BS for the duration of the contract, insofar as this is necessary to fulfil the purpose of the contract. The customer agrees to the collection and storage. 2HM BS also processes and uses the collected inventory data to advise its customers, for self-advertising and market research for its own purposes and to design its services in line with requirements. The customer can object to such use of his data. 2HM BS will not pass on this data to third parties without the consent of the customer. This only does not apply if the data is publicly accessible anyway or if 2HM BS is legally obliged to disclose such data to third parties, in particular to law enforcement authorities, or if internationally recognised technical standards provide for this and the customer does not object. |
| 16. |
Reference naming |
| |
2HM BS is entitled to use the client as a reference including logo insertion on the website. |
| 17. |
Final clauses |
| 17.1 |
Should a provision be or become void, the validity of the other provisions shall remain unaffected. In addition, the parties undertake to replace the void provision by a valid provision that comes as close as possible to the economic purpose of the invalid provision. |
| 17.2 |
The place of performance and jurisdiction for all claims and legal disputes arising from the contractual relationship is the registered office of 2HM BS, if the customer is a merchant or a legal entity under public law. |
| 17.3 |
German law shall apply exclusively, even if the customer has its registered office abroad. |