§ 1 General, scope of application
(1) The Contractor's General Terms and Conditions shall apply exclusively. They shall apply to all offers, deliveries and services of the Contractor. If the customer did not have the opportunity to take note of them when the contract was concluded, they shall nevertheless apply if the customer knew or should have known the general terms and conditions from previous transactions.
(2) Conflicting terms and conditions of the Customer that deviate from the Contractor's General Terms and Conditions shall not apply. If the Contractor performs the delivery or service incumbent upon it in the knowledge of such terms and conditions of the Customer, it shall also not recognise such terms and conditions of the Customer which are not contradicted by these General Terms and Conditions of the Contractor.
(3) The general terms and conditions of the contractor only apply to companies, not to consumers.
§ 2 Offer, conclusion of contract, information
The contract is concluded when the client accepts the binding offer made by mittl medien.
(1) Acceptance of the offer made by the contractor shall constitute the realisation of the order.
§ 3 Contract content, services
(1) The Contractor shall create the contractual services for the Customer compatible with the latest versions of the four main browsers: Chrome, Firefox, Safari and Edge. Due to the variety of different displays in the different browsers and systems, exact conformity of the display and functionality can only be guaranteed with unreasonable effort. Insofar as this does not result in a significant deterioration in the functionality of the website, such deviations do not constitute a defect. If the customer requires optimisation, this can be booked for a fee.
(2) Faultless functionality cannot be guaranteed for older and future browser versions or future plug-in or other third-party software versions used. If optimisation for these versions is desired, this can be booked for a fee.
(3) Costs for third-party software products that are required for the realisation of the project (e.g. extensions) are not included in the price, unless otherwise agreed. Functionalities, responsive web design and browser compatibility can only be granted within the scope of the requirements of the third-party software product.
(4) In the event of unforeseen difficulties for which third parties are responsible (provider, external software or plug-in provider, etc.) and which lead to additional work, the customer is obliged to pay the additional work on an hourly basis based on the contractually agreed or customary, appropriate remuneration.
(5) The customer is advised that content on the website originating from third parties (in particular photos, texts, plans, graphics, maps, sound recordings, videos, animations and drawings) may be protected by copyright. If the Customer provides such materials, the Customer must ensure that it has acquired all the necessary rights, if necessary at a charge. A search by the contractor for conflicting trade mark, copyright or other industrial property rights is not part of the contract.
(6) The processing of images (e.g. cropping, retouching, conversion to RGB mode and to JPEG or PNG file format) or other media (music, video, graphics, etc.) is not included in the price, unless agreed separately. The customer is responsible for ensuring that the media is provided in the correct size and resolution and in the correct file and colour format. Otherwise, the customer is obliged to pay the additional processing costs by the hour on the basis of the contractually agreed or customary, appropriate remuneration.
(7) Unless otherwise agreed in the offer, one correction loop with one change per item from the offer is included. Cancellation of desired changes, subsequent changes and functional or structural changes are to be paid additionally by the customer by the hour on the basis of the contractually agreed or customary local remuneration, as are subsequent changes made after the start of a new project phase.
(8) The Contractor is authorised at its own discretion to perform the service itself or to have it performed by competent third parties as subcontractors.
§ 4 Prices, terms of payment, offsetting, retention
(1) All prices to entrepreneurs are net prices plus the applicable statutory VAT, unless otherwise agreed.
(2) The Contractor shall be entitled to demand a down payment of an appropriate amount when the order is placed. The Contractor shall be entitled to demand reasonable instalment payments for project parts already delivered to the Customer and to issue partial invoices in accordance with the progress of the project.
(3) The contractual remuneration shall only apply insofar as contractual services have also been agreed. Additional services shall be remunerated at the contractual rates in accordance with the offer, or alternatively in accordance with the customary, appropriate remuneration. Accompanying services such as user introductions, documentation, training, support or similar are not included in the order as standard, but only form part of the contract if this has been expressly agreed.
(4) The customer's payment is due immediately. The customer is advised that he is in default at the latest 30 days after receipt of the invoice. If the customer is in arrears with payment, he is obliged to pay interest on arrears and the flat-rate compensation regulated therein in accordance with § 288.
(5) The customer may only offset if his counterclaims are legally established, undisputed or recognised by the contractor or the right to offset is based on the customer's rights due to incomplete or defective performance from the same contractual relationship.
(6) The Contractor shall be authorised to exercise a right of retention in respect of all claims arising from the business relationship with the Customer.
§ 5 Service time
(1) The commencement of any specified service period is subject to the clarification of all technical, legal and design issues and the timely and proper fulfilment of the customer's obligations. The Contractor reserves the right to plead non-fulfilment of the contract.
(2) Force majeure or operational disruptions occurring at the Contractor or the Contractor's subcontractors, which temporarily prevent the Contractor from delivering the service on any agreed date or within any agreed period through no fault of its own, shall change the performance times by the duration of the disruption caused by the circumstances. If a corresponding disruption leads to a delay in performance of more than 2 months or if the customer's interest in the fulfilment of the contract objectively ceases to exist even before then, the customer shall be entitled to withdraw from the contract.
§ 6 Endangerment of performance, insolvency
(1) If, after conclusion of the contract, it becomes apparent to the Contractor that (further) fulfilment of the contract is jeopardised by the Customer's inability to pay, the Contractor shall be entitled to refuse to provide advance services under this contract until the corresponding consideration has been paid by the Customer or security has been provided for this.
(2) The Contractor shall be entitled to withdraw from the contract or to terminate it without notice if the Customer fails to provide the corresponding consideration step by step or to provide the security despite a reasonable grace period.
(3) If the customer is insolvent or over-indebted, if insolvency or composition proceedings are applied for or opened against its assets, the contractor shall be entitled to withdraw from the contract or terminate it without notice without setting a grace period.
(4) If the Contractor cancels or withdraws from the contract in accordance with paragraph 2 or 3, it may demand compensation from the Customer instead of performance or reimbursement of expenses.
§ 7 Customer's duty to co-operate, liability
(1) The customer is obliged to provide the contractor with all necessary information and data (e.g. navigation structure, media to be used, legal texts, etc.) in good time. This includes in particular all information on legal requirements for the website and the designs to be created by the Contractor (e.g. logos) as well as all legal texts (e.g. imprint and data protection declaration) and any conflicting copyrights or trademark rights. The legal requirements for websites and designs can only be assessed and specified by a lawyer. The review, compliance and implementation of legal requirements is not part of the contract.
(2) If information, documents or templates such as texts or photos are not available on time and in full, the Contractor shall be authorised not to begin with the service in accordance with Section 4 (1) or to work provisionally with placeholders. Subsequent input of the material submitted late shall count as a change to the order and shall be remunerated additionally in accordance with the contractually agreed, or alternatively the customary, appropriate remuneration.
(3) The customer is obliged to provide the required materials in a standard, directly usable digital format. The customer shall ensure that the necessary rights of use are granted, in particular also reproduction, distribution and processing rights to the extent necessary for the realisation of the project and the work of the contractor. The review of legal admissibility with regard to intellectual property and copyright law can only be carried out by a lawyer and is not part of the order.
(4) The customer shall ensure that the server and software environment provided by it meets the minimum technical requirements for the project with the software environments to be used.
(5) If the customer provides the contractor with physical or non-physical objects, in particular image, text or sound files, which infringe the rights of third parties, the customer is obliged to indemnify the contractor against any third-party claims upon first request. This includes in particular the costs of legal action.
(6) The customer is obliged to carry out the necessary data backups independently as part of its own backups, in particular before the start of the order. The Contractor shall not be liable for lost data to the extent that it would still be available if the Customer had properly backed up the data.
(7) The Customer agrees that the Contractor may name the service as a reference for the Customer.
(8) The customer is obliged to maintain confidentiality towards third parties with regard to remuneration, details of the service description and internal communication.
§ 8 Default of the customer, default of acceptance, cancellation
(1) If the customer fails to fulfil one of its obligations to cooperate as agreed, the resulting consequences, such as additional services and delays, shall be borne by the customer. The Contractor may invoice the Client for the additional work performed.
(2) The Customer is advised that the Contractor works on a project-related basis and does not take on more than a certain number of projects at the same time. If the Customer defaults on its obligations to provide, co-operate or accept, the Contractor shall be entitled to postpone the performance period. This applies in particular if this results in a conflict with other projects already scheduled by the Contractor.
(3) Should a delay of more than three weeks occur in the realisation of the order caused by the customer, the customer shall be obliged to pay for the services rendered by the contractor up to that point and to additionally remunerate the additional time required for familiarisation on the part of the contractor upon resumption of the project in accordance with the contractually agreed, or alternatively the customary, appropriate remuneration.
(4) If the Customer fails to fulfil its obligations to cooperate, in particular under Section 6, even after the fruitless expiry of a grace period, the Contractor may withdraw from the contract and claim damages in lieu of performance. This includes in particular the remuneration already earned and the loss of profit (or the unearned overheads contribution) less expenses saved by the Contractor.
(5) If the customer terminates the contract without good cause, the customer shall be obliged to pay the agreed remuneration less what the contractor saves in expenses and acquires or maliciously fails to acquire by using its labour elsewhere. Due to the project-related scheduling by the Contractor, it may not be possible to realise an alternative acquisition in the short term. Alternatively, the Contractor shall be entitled to 5% of the part of the remuneration attributable to the service not yet rendered.
§ 9 Project, acceptance
(1) The web project is produced in project phases according to the customer's instructions. After each project phase (e.g. mockups), the customer will be asked to approve the project; once the customer has approved the project, the next project phase begins.
(2) The Contractor shall deliver or demonstrate each work to the Customer and, after each completed project phase, request the Customer to accept the partial or complete work within a period of one week (shorter periods may be selected for urgent orders). If the customer does not express any change requests or reservations within this period, the partial work (complete work) shall be deemed to have been accepted, provided that it was ready for acceptance, i.e. there were no significant defects in the partial or complete work.
(3) The customer is obliged to carry out acceptance within a period of one week after receipt of the request for acceptance, insofar as the work is ready for acceptance, or to notify reservations. If the customer defaults on this obligation, the provisions of this contract regarding the customer's duty to co-operate and default of acceptance shall apply accordingly.
§ 10 Rights of use
(1) After acceptance and full payment, the customer acquires the simple, non-exclusive right of use to the contractor's service. The Contractor shall retain all rights to partial works created prior to acceptance and shall not be obliged to hand over open files or layouts created on the computer to the Customer.
(2) Insofar as works are used which are used under a CC licence or an open source licence, these licence terms apply.
(3) With the licence, the customer acquires the right to edit, redesign or delete the website. In the event of any change, the contractor may request to no longer be named as the author of the website.
(4) The contractor has the right to be named as the author. He shall provide the website with a copyright notice in the usual form, including a link to your website; the customer is not permitted to remove this notice without the contractor's consent, unless he has an overriding interest in doing so.
(5) The Contractor may name the Customer as a reference customer on its website or in other advertising publications. The Contractor may reproduce the services provided by it for its public relations and reproduce them publicly, provided that this does not conflict with any overriding interests of the Customer.
§ 11 Defect rights, limitation period
(1) Insofar as marketing, search engine optimisation or other consulting services are part of the contract, a certain (economic) success cannot be guaranteed. In this respect, these are service contracts for which there is no warranty for defects.
(2) There is freedom of design within the scope of the order. Claims for defects in artistic designs shall only exist insofar as these designs deviate significantly from the pre-contractual proposals and these deviations are not attributable to technical causes, lack of granting of rights or lack of co-operation on the part of the customer. If changes beyond this are desired, these shall be remunerated additionally in accordance with the contractually agreed, or alternatively the customary, appropriate remuneration.
(3) Werden durch den Kunden Veränderungen an der Leistung vorgenommen, so entfällt die Gewährleistung, wenn der Kunde eine entsprechende substantiierte Behauptung des Auftragnehmers, dass erst eine solche Veränderung den Mangel herbeigeführt hat, nicht widerlegt.
(4) Advertising information provided by third parties, in particular by manufacturers of software used by the Contractor for the provision of services, shall not be binding on the Contractor.
(5) If the customer is a merchant, the customer's rights due to defects in the service shall expire one year from the handover or acceptance of the service. This also applies to the customer's rights to compensation for damages or compensation in lieu of performance, including for all damage to other legal interests of the customer caused by the defect, unless it is a matter of damage to life, limb or health of the customer or the contractor is responsible for the defect due to intent or gross negligence.
§ 12 Contract documents, lien
(1) The Contractor reserves all property rights and copyrights to illustrations, drawings, calculations, sketches, drafts, photographs, graphics, designs and other documents. They are not part of the contract and the customer cannot demand their return.
(2) For the Contractor's claims against the Customer arising from this contract, the Customer shall provide a contractual lien on the objects and rights provided by the Customer to the Contractor for processing, such as in particular software, texts, images and other objects and rights protected by copyright and intellectual property rights. This contractual lien also secures other claims of the Contractor against the Customer that do not originate directly from the order.
(3) The Customer is obliged to provide the Contractor with its current address if and for as long as the lien exists. Otherwise, the Customer cannot derive any rights from the fact that the Contractor has sold the item or the right in the event of a - justified - lien sale and has only sent the notice of lien sale to the last address known to the Contractor, unless a new address was readily ascertainable for the Contractor by means of residential registration information.
§ 13 Mediation
(1) In the event of disputes arising from the business relationship between the contractor and the customer, the parties are obliged to endeavour to reach an amicable solution. If an agreement cannot be reached, they undertake to settle their differences in mediation before taking legal action. The possibility of summary proceedings by way of interim legal protection remains unaffected. The simple non-payment of remuneration without justification does not constitute a dispute.
(2) If one party requests mediation from the other party, both parties are obliged to agree on a mediator within eight days. If this agreement is not reached within the deadline, a lawyer mediator - whereby primarily mediators who offer online mediation should be chosen - is to be appointed by the President of the Bar Association or a representative at the contractor's registered office at the request of one of the parties. This is also the location of the mediation, unless the Presidium of the Bar Association makes a proposal for online mediation. The language of mediation shall be German, unless all parties agree on another language.
(3) Legal recourse (or an alternatively agreed arbitration procedure, if applicable) is only permissible if the mediation has failed because (a) the parties mutually declare the mediation to be terminated, (b) after the first mediation session further negotiations are refused by one party, (c) the mediator declares the mediation to have failed or (d) an agreement is not reached within 3 months of the start of the first mediation session, unless the parties extend the deadline by mutual agreement.
(4) The costs of an unsuccessful mediation shall be borne internally by the parties in equal shares vis-à-vis the mediator. Notwithstanding this provision in relation to the mediator, the parties are at liberty to demand reimbursement of these costs and those of any accompanying legal advice as legal costs in subsequent proceedings, in which case the respective decision in the dispute shall apply. If an agreement is reached, the agreed cost regulation shall apply.
§ 14 Datenschutz
(1) Für den Vertrag werden gem. Art. 6 Abs. 1 lit. b DSGVO Vertragsdaten erhoben (z.B. Name, Anschrift und Mail-Adresse, ggf. in Anspruch genommene Leistungen und alle anderen elektronisch oder zur Speicherung übermittelten Daten, die für die Durchführung des Vertrages erforderlich sind), soweit sie für die Begründung, inhaltliche Ausgestaltung oder Änderung dieses Vertrages erforderlich sind.
(2) Contract data is collected for the contract in accordance with Art. 6 para. 1 lit. b GDPR (e.g. name, address and e-mail address, any services used and all other data transmitted electronically or for storage that is necessary for the execution of the contract), insofar as it is necessary for the establishment, content or amendment of this contract.
(3) Data subjects can request information about the stored personal data free of charge at any time. You can request the correction of incorrect data at any time (also by supplementing it) as well as the restriction of its processing or the deletion of your data. This applies in particular if the purpose of the processing has expired, a required consent has been revoked and there is no other legal basis or the data processing is unlawful. The personal data will then be corrected, blocked or deleted immediately within the legal framework. You have the right to withdraw your consent to the processing of personal data at any time. This can be done by informal notification, e.g. by e-mail. The revocation does not affect the legality of the data processing carried out up to that point. Transfer of the contract data in machine-readable form can be requested. If an infringement of the law is feared as a result of the data processing, a complaint can be lodged with the competent supervisory authority.
(4) In principle, the data will only be stored for as long as required for the purpose of the respective data processing. Further storage may be considered in particular if this is still necessary for legal prosecution or for legitimate interests or if there is a legal obligation to retain the data (e.g. tax retention periods, statute of limitations).
§ Place of jurisdiction, place of fulfilment
(1) The contract language is German..
(2) If the Customer is a merchant, the Contractor's place of business shall be the place of jurisdiction; however, the Contractor shall also be entitled to sue the Customer at his place of residence or business.
(3) Unless otherwise stated in the order confirmation or the contract, the place of fulfilment shall be the Contractor's place of business.
Stand 01.11.2018