General Terms and Conditions (GTC) of SaphirSolution GmbH
Valid from 08.10.2021
Scope of application
General Terms and Conditions of SaphirSolution GmbH, hereinafter referred to as the “Agency” for short, and the client hereinafter referred to as the “Customer”. The following General Terms and Conditions (GTC) apply to all contracts, orders, offers and services concluded between the Customer and the Agency.
The Agency provides services in the areas of online marketing and organisation in particular.
1. Conclusion of contract between agency and customer
- The contract between the customer and the agency comes into effect with the transmission of the signed offer by the customer.
- Changes to the contract are only possible in writing. Agreements made by telephone agreements must be confirmed in writing. Subject to any other Unless otherwise agreed, the confirmation of changes is possible by e-mail.
- The commissioning of the services provided by the Agency is restricted to entrepreneurs and companies (natural or legal persons, legally responsible partnerships) in accordance with §§ 14, 310 Paragraph 1 BGB (German Civil Code) as well as legal legal persons under public law and special funds under public law reserved.
- Events of force majeure shall entitle the Agency to postpone the project by the duration of the delay and a reasonable start-up period.
2. Participation and support in the implementation
- The cooperation takes place in an environment of trust and the contractual partners inform each other immediately in the event of deviations from the agreed procedure or deviating developments of the agreements and inform each other of developments in the course of the project.
- If the development of the measures is not comprehensible for the client and does not meet the client’s expectations, the client shall immediately inform the agency and draws the agency’s attention to the defect he has identified, so that the Agency can understand and remedy the identified defect.
- The client shall name a responsible and decision-making contact person to the agency for the implementation of the project.
- The contact persons provided by the Agency and the Client shall communicate at regular and defined intervals on progress and obstacles in the fulfilment of the contract in order to counteract the development, if necessary, and fulfil the components of the contract. The chosen form of communication shall be agreed separately in the offers.
3. Service areas of the agency
- The agency shall take on the services and consultations defined as an assignment and implements them accordingly with the cooperation of the client.
- Consultations included in the all-inclusive offers refer only to the scope of services defined and placed as an order. If other consultations or services are desired, these will be considered in a separate offer.
4. Tasks and duties of the client
- The customer shall support the agency in the fulfilment of the contractual obligations with the help of the provision of the information required by the Agency for the performance of services.
- The customer undertakes to support the agency in the execution of the contract with the required materials and shall provide the media in digital form if possible. digital form. If the materials have to be converted into a different format, the customer shall the customer shall bear the costs incurred for this. The customer shall check whether all transmitted materials have been granted the necessary rights. In doing so, the the copyright, protection of minors and press law, as well as the “right to one’s own “right to one’s own image”. The customer alone shall be responsible for the materials transmitted. responsible. The customer shall check whether the transmitted materials (text, image, sound) do not infringe the rights of third parties. The agency shall be fully indemnified by the claims of third parties.
- Should additional costs be incurred due to deviating requests and changes to the services, these shall be borne by the client.
- In the course of order processing, the customer shall check the email inbox provided at least once a working day. provided email inbox at least once a working day in order to respond to any queries.
- If the customer cancels individual parts of the order, he is obliged to indemnify the agency from all liabilities and to compensate the agency for its losses. compensate. In addition, the agency shall retain a claim to the remuneration for the order.
- Insofar as the customer cancels the implementation of individual projects or measures based on the approved concept, he shall be obliged to release the agency from all liabilities already incurred and to compensate the agency for all losses arising from such projects or measures as a result of the cancellation or modification. In addition, the Agency shall be entitled to remuneration for the services already prepared and rendered up to that point in accordance with the agreements made.
- If the Agency is unnecessarily hampered in the execution of the order by insufficient fulfilment of the Customer’s duties to cooperate – for example by withholding information or persistent non-availability – the Agency shall be entitled to charge a flat-rate additional expense of 10 per cent of the order value on a case-by-case basis. Further claims for damages on the part of the shall remain unaffected.
- If the customer does not fulfil his obligations to cooperate, the agency reserves the right to terminate the agency reserves the right to terminate the contractual relationship unilaterally after issuing a reminder. The customer is obliged to pay for all services rendered to date in accordance with the rates of pay. In this case, performance-related orders shall also be settled on a also be invoiced on a fee basis.
- If the customer violates his obligations to cooperate in such a way that the agency does not successful execution of the order does not appear possible, the agency shall be the Agency shall be entitled to unilaterally terminate the contractual relationship and to invoice all services rendered up to that point according to its valid rates. This provision shall also expressly apply to orders that are based wholly or proportionately on the basis of contingency fees.
5. Data protection
- The Client agrees that, within the framework of the cooperation with the Agency, data concerning his person, or his company may be stored, modified and/or deleted and, if necessary, transmitted to third parties. This applies in particular to the transmission of data that are necessary for the commissioning of external service providers and for the other execution of the order.
6. Third party participation
- Third parties who work for the customer in the agency’s area of activity at the customer’s instigation or with the customer’s acquiescence, the customer shall be liable as for vicarious agents. The Agency shall not be responsible vis-à-vis the Client if it is unable to fulfil its obligations vis-à-vis the Client in whole or in part or in a timely manner due to the conduct of one of the aforementioned third parties.
- The agency reserves the right to integrate third parties for the fulfilment of the contract. The customer undertakes, within the framework of the execution of the order, not to commission the employees or third parties employed by the agency, either directly or indirectly, with projects during the course of or after the conclusion of the order for the following 24 months.
- Deadlines for the provision of services may only be promised on the part of the agency by the contact person.
- The contracting parties shall set deadlines in writing if possible. Deadlines, the non-observance of which causes one of the contracting parties to be in default without a reminder pursuant to § 286 para. 2 no. 1 and no. 2 of the German Civil Code (BGB) (binding deadlines), shall always be fixed in writing and designated as binding.
- The Agency shall not be responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions in telecommunications, etc.) and circumstances within the Customer’s sphere of responsibility (e.g. failure to provide cooperation services on time, delays by third parties attributable to the Customer, etc.) and shall entitle the Agency to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up period. The Agency shall notify the Customer of delays in performance due to force majeure.
8. Remuneration and payment
- Subject to deviating agreements between the Parties, the Agency shall be remunerated on the basis of time spent, which shall be invoiced monthly. Unless otherwise agreed, the applicable billing rates of the Agency shall be decisive for the remuneration of the time spent. The Agency shall be entitled to change or supplement the hourly rates on which the agreements are based at its reasonable discretion (§ 315 BGB). Cost estimates or budget plans prepared by the Agency shall not be binding.
- If the customer makes use of a flat-rate offer by the Agency, remuneration shall be based exclusively on the agreed flat-rate fees.
- If the parties have not reached an agreement on the remuneration of a service of the Agency, the provision of which the Customer could only expect according to the circumstances in return for remuneration, the respectively valid remuneration rates of the Agency shall apply.
- The Client shall bear all out-of-pocket expenses, such as travel and accommodation costs, out-of-pocket expenses and third-party claims for remuneration incurred in the course of the performance of the contract, against evidence. Travel costs shall only be reimbursed if the journey from one of the Agency’s offices exceeds 30 kilometres. Travel time shall be reimbursed at half the hourly rate.
- In the case of costs arising from the commissioning of third parties, a distinction shall be made as follows:
- if third-party services are part of an all-inclusive offer by the agency, these shall not be shown separately or invoiced.
- if the contracting parties have not agreed on a flat-rate remuneration, third-party costs incurred in the implementation of the commissioned measures, such as click costs, fees for graphic designers and programmers or costs for special legal advice, shall be remunerated separately. These external costs shall be charged at the agency’s usual commission rate of 15 per cent plus VAT for services provided by the specialist departments.
- invoicing shall take place in the case of lump sum offers with the start of the term. Invoices shall be issued at the beginning of the current month of support. If it is foreseeable that the completion of this work will be delayed by at least four weeks due to unforeseen events for which the Agency is not responsible, or if the Client requests a later completion date for the project, the Agency shall be entitled to invoice the services rendered up to that point in an interim invoice.
- Unless the parties have reached a special agreement, invoices shall be issued monthly at the beginning of the invoicing period.
- If the customer is in arrears with payments, the Agency reserves the right not to perform further services until the outstanding claims have been settled.
- All contractually agreed remuneration shall be subject to statutory value added tax.
- The Agency shall transfer to the Client, after full payment of the agreed remuneration, all transferable copyright and other rights to publish, reproduce and exploit the services granted under this contract, including all conceivable legal positions in drafts and designs. Unless otherwise stipulated, this transfer shall be limited in time, place, purpose and in every other way to the implementation of the respective projects and services. Excluded from this obligation to transfer are rights of the Agency to tools and software programmes as well as to its own administrative procedures, methods and forms of presentation based thereon, which represent the Agency’s company-specific knowledge.
10. Term, termination
- Fixed-term service contracts shall end at the agreed time and shall be extended in accordance with the term regulated in the agreement.
- If no other notice period has been agreed for a service contract for ongoing support with a monthly flat fee, this shall be three months to the end of the month.
- If a term with automatic renewal has been agreed, the period of notice shall be three months before the end of the contract term currently in force.
- An extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist if one of the contracting parties grossly violates its obligations resulting from this contract.
- Services which are transmitted to the customer in the following month after termination because they still relate to the performance period shall be invoiced separately with the customer.
- The agency shall submit the templates and drafts it has created to the client so that the client can check the factual information contained therein. If the customer releases the templates, he shall assume sole liability for the correctness of the factual information.
- The agency shall not be liable for the patent, design, copyright and trademark protection or registrability of the advertisements, drafts, concepts, suggestions, proposals, etc. supplied within the framework of the contract.
- The risk of the legal admissibility of a measure shall be borne by the customer. This applies in particular in the event that measures violate provisions of competition law, copyright law, data protection law and special advertising and teleservice laws. The customer may request a legal examination of the commissioned services by an expert lawyer, provided that the customer bears the associated costs.
- The Agency shall be liable for intent and gross negligence. It shall only be liable for slight negligence in the event of a breach of an essential contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb or health.
- In the event of slight negligence, liability shall be limited to the amount of the foreseeable damage, the occurrence of which must typically be expected.
- The liability of the agency shall be limited to the remuneration agreed in the individual case.
- All agreed activities and services shall be at the risk of the client.
- The Client undertakes not to entice away any employees of the Agency or to employ them without the consent of the Agency for the duration of the cooperation between the Parties and for a period of three years thereafter. For each case of culpable infringement, the Client undertakes to pay a contractual penalty to be determined by the Agency in terms of amount and to be reviewed by the competent court in the event of a dispute.
- The documents, knowledge and experience provided to the other contracting party may only be used for the purposes of this contract and may not be made accessible to third parties unless they are intended to be made accessible to third parties or are already known to the third party. Third parties shall not include auxiliary persons called in for the execution of the contractual relationship, such as freelancers, subcontractors, freelancers, etc.
- Furthermore, the contracting parties agree to maintain confidentiality regarding the content of this contract and regarding the knowledge gained during its execution.
- The Agency undertakes to keep secret all business and trade secrets of the Client that become known to it through the cooperation with the Client. This obligation to maintain secrecy shall apply beyond the duration of this contract. The Agency shall ensure that a corresponding confidentiality obligation is agreed with its employees and other vicarious agents.
- If a contracting party so requires, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, insofar as the other contracting party cannot assert a justified interest in these documents.
14. Clients from abroad and foreign legal forms
- Orders from companies with their registered office outside Germany or with a foreign legal form will only be processed against advance payment.
- The Agency may name the Client as a reference client on its website or in other media. It may also publicly reproduce or refer to the services rendered as an illustration of the service rendered, unless the Client can claim a legitimate interest to the contrary.
16. Final provisions
- All amendments and additions to contractual agreements must be recorded in writing for evidence purposes. Notices of termination must be made in writing. Notifications that must be made in writing can also be made by e-mail.
- If clauses of the general terms and conditions are wholly or partially invalid, the remaining clauses shall remain unaffected by the invalidity.
- The customer’s general terms and conditions shall not become part of the contract.
- The law of the Federal Republic of Germany shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
- The place of performance and exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is Cologne, provided that the customer is a merchant or has no general place of jurisdiction in Germany.