§ 1 Contracting partner, scope
(1) The following general terms and conditions (“GTC”) apply to the provision of services by JD Business Solutions (hereinafter “agency”).
(2) The agency's general terms and conditions apply exclusively. They apply to all offers, deliveries and services provided by the agency. Insofar as the client had no opportunity to obtain information at the time of conclusion of the contract, they apply nonetheless if the client knew or needed to know the general terms and conditions from previous transactions.
(3) Contracting terms and conditions of the client that differ from the agency's general terms and conditions do not apply. If the agency carries out the delivery or service incumbent upon it in the knowledge of such terms and conditions of the client, it also does not recognize such terms and conditions of the client which are not contradicted by the agency's present general terms and conditions.
(4) These terms and conditions apply only to entrepreneurs and non-private consumers.
§ 2 Subject matter of the contract
(1) The Agency's specific contractual performance obligations result in detail from the Agency's offer on which the contract or order is based. Services not listed there do not become part of the contract. In particular, design, advertising texts, photos and videos are only due if mentioned in the offer. In case of doubt, the client commissions a service package to create the website, which consists of the technical creation of a website, the integration of content and a subsequent maintenance and service contract; the website generally comprises a single landing page, i.e. a One pager including the integration or linking of legal texts from the client (imprint, privacy policy, terms and conditions). The implementation of an initial conversation funnel (control system for establishing customer contact) with interview, booking and automation tools is just as much an additional service as the creation of sub-pages to the landing page.
(2) During a project, the client may offer changes or extensions to the contractually agreed scope of services. If the agency does not accept such an offer of change, the agreed services will remain the same. If the agency provides additional services in accordance with the order without a supplementary remuneration agreement being made, it receives remuneration in accordance with the price list or, if there is no such provision, standard market remuneration.
(3) Insofar as the client places orders orally with the agency, these are binding. The agency is entitled to the client immediately confirming orders placed orally in text form. An order is considered to have been placed if, before an agreement is reached on all points of an order, the agency starts part of the execution of the order in the knowledge of the client, without the client objecting. An order can also be accepted by the agency by carrying out the activity if all points of an order have already been clarified. Confirmation of the content of the conversation in text form by the agency is also binding if the client does not object within three working days of receiving confirmation. (4) The agency is entitled, at its sole discretion, to perform the service itself or to use subcontractors. The agency is entitled to change the Internet infrastructure used and service providers and vicarious agents commissioned with implementation at any time, provided that this does not result in any disadvantages for the client. In principle, the client will be informed two weeks before a replacement and asked to report concerns about the planned replacement.
(5) The Agency may also provide the services as part of technical progress using newer or different technologies, systems, processes or standards, provided that the client does not suffer any disadvantages as a result.
(6) Depending on the offer, the maintenance and maintenance contract includes ongoing monthly support of the website's technical platform, such as by updating plugins or the platform software, to enable uninterrupted and secure operation of the site and automatic data backup, and also to carry out occasional editorial corrections. The maintenance and support contract does not include the creation of sub-pages, content, a complete redesign or the implementation of new functionalities (e.g. contact forms). The specific performance obligations of the maintenance contract are included in the offer.
(7) Services that are not to be provided in accordance with the contract by the agency itself or its subcontractors do not become the subject matter of the contract, but are to be commissioned and paid by the agency on his behalf and for his account. For example, this may include media and software licenses (e.g. stock photos, SaaS tools, data backup, website plugins), audio and video production, translations, SEO services, domain registration and hosting, and other comparable third-party services.
§ 3 Offer, information, service
(1) The presentation of offers from the agency on the website is not a binding offer, but only an invitation to the client to submit an offer.
(2) The agency's legally binding offer includes the detailed services and associated prices.
(3) The client is not entitled to the provision of technical means to correct his order, separate information on the technical steps for concluding the contract, information about the storage of the contract, the available languages and codes of conduct, and immediate confirmation of his order.
(4) Specific successes and key figures, such as a certain number of contacts from new customers (leads), applications or an increase in turnover, are just as little owed by the agency as results of pure activities, such as SEO measures, website acceleration or agreed advertising measures.
§ 4 Acceptance
(1) After completion of the website and its transfer to the client's disposal, the client is obliged to accept it in text form within 5 working days, provided that it complies with the contractual specifications and the approved concept (or prototypes). The agency is entitled at any time to submit parts of the website to the client for early partial acceptance, which the client must grant if the part is available in this form of an assessment and meets the specifications and the concept (or prototype). Once accepted, parts of the website can no longer be rejected or required to change them by the client later, unless there are circumstances that the client could not recognize at the time of partial acceptance. The scope and timing of the payment obligation remains unaffected by partial acceptance and is based exclusively on the accepted offer and these terms and conditions.
§ 5 Prices, terms of payment, offsetting, withholding
(1) The remuneration to be paid by the client is based on the agency's offer. A package only lasts as long as the services offered for it are detailed in the offer.
(2) All prices vis-à-vis entrepreneurs are net prices plus the applicable statutory value added tax, insofar as this applies and no other agreement has been made.
(3) The amount of the remuneration, any partial invoices or payment installments, and their due date are stated in the offer. Unless otherwise agreed, the total remuneration is due in advance upon conclusion of the contract.
(4) The remuneration for the maintenance and care contract is invoiced for the first time one month after acceptance due.
(5) The client shall pay additional services that have not been agreed upon in accordance with the contractual rates in accordance with the offer, alternatively according to the agency's price list and, in the alternative, in accordance with the appropriate local remuneration. Accompanying services such as user introductions, documentation, training, support or the like are not included as standard in the order, but only as part of the contract if this has been expressly agreed.
(6) Payment from the client is due immediately. The client is informed that he will be in default no later than 30 days after receipt of the invoice. If the client is in default of payment, he is obliged to pay default interest and the lump sum compensation regulated there.
(7) The client can only offset if its counterclaims are legally established, undisputed or recognized by the agency or if the offsetting right is based on the client's rights due to incomplete or defective performance arising from the same contractual relationship. The agency is authorized to exercise a right of retention due to all claims arising from the business relationship with the client.
§ 6 External products, additional services, correction loops
(1) Costs for third-party software or other products that are necessary for the implementation of the project (e.g. purchase theme, plugins, advertising budgets, advertising materials, etc.) are not included in the price, unless otherwise agreed. Functionalities, responsive web design and browser compatibility depend on the performance of the third software product. The same applies with regard to restrictions on any required third-party products, such as functionalities of advertising platforms. If third-party products are provided via an agency license in accordance with the agreement, the right of use ends upon expiry of the maintenance contract and the client must then purchase the licenses on his own account if he wants to continue operating the site.
(2) In the event of unforeseen difficulties caused by third parties (provider, external software provider, advertising platform, etc.) and which result in additional work, the client is obliged to pay the additional costs after hours on the basis of the contractually agreed, appropriate remuneration shown in the price list or usual local.
(3) The integration and processing of images (e.g. cropping, retouching, converting the file format) or other media (PDFs, music, video, graphics, etc.) is not included in the price, unless otherwise agreed. The client is responsible for making the media available in the correct size and resolution, in the correct file and color format. Otherwise, the client is obliged to pay the additional processing costs after hours on the basis of the contractually agreed or local, appropriate remuneration. Unless otherwise agreed in the offer, a correction loop with one change is included for each item from the offer. Cancellation of desired changes, subsequent changes and functional or structural changes must also be paid by the client after hours on the basis of the contractually agreed remuneration shown in the price list or usual local remuneration, as well as subsequent changes made after the start of a new project phase.
§ 7 Performance period, force majeure
(1) The start of any specified service period requires the clarification of all technical, legal and design issues and the timely and proper fulfilment of the client's obligations. The Agency reserves the right to plea of failure to fulfill the contract.
(2) Force majeure or operational disruptions that occur at the agency or its subcontractors, e.g. as a result of riot, strike, pandemic, epidemic, lockout, which temporarily prevents them from delivering the service on a possible agreed date or within a possibly agreed period through no fault of their own, change the performance times by the duration of the performance disruption caused by the circumstances. If a corresponding malfunction results in a delay of more than 2 months or if the client's interest in fulfilling the contract objectively ceases beforehand, the client is entitled to withdraw from the contract.
§ 8 Client required to cooperate, liability
(1) The client is obliged to provide the agency with all necessary information and data (e.g. navigation structure, media to be used, legal texts, etc.) in good time. This includes in particular information on conflicting copyright or trademark rights.
(2) The client is informed that he requires a privacy policy and an imprint for his website. The client must provide this himself; the agency is unable to write and review such legal texts and cannot provide this service under the Legal Services Act. The client must therefore have an imprint and a privacy policy drawn up and used by a lawyer for his website.
(3) The client is obliged to hand over the necessary materials in a standard, directly usable digital format. The client ensures that the necessary rights of use are granted, in particular reproduction, distribution and editing rights to the extent necessary for the implementation of the project and the work of the agency. The review of legal admissibility with regard to intellectual property and copyright law can only be carried out by a lawyer and is not the subject of the contract.
(4) The client is informed that content on the website that originates from third parties (in particular photos, texts, plans, graphics, maps, sound recordings, videos, animations and drawings) may be protected by copyright. If the client provides such materials, he himself must ensure that he has acquired all necessary rights for this, possibly subject to a fee. An investigation by the agency for conflicting trademark, copyright or other industrial property rights is not the subject of the contract.
(5) The client is obliged to provide the agency with all access to its accounts on websites, platforms or other places necessary for the execution of the order and to carry out the transmission securely and in encrypted form. After completion of the order, but at the earliest after termination of the maintenance and care contract, the client is obliged to change the password immediately to prevent subsequent misuse.
(6) If the client provides the agency with physical or non-physical objects, in particular image, text or sound files, which infringe the rights of third parties, the client is obliged to keep the agency free from any claims made by third parties upon first request. In particular, this includes the costs of legal action.
(7) The client is obliged to carry out data backups required as part of self-security independently, in particular immediately after the order has been placed. The agency is not liable for lost data insofar as it would still be available if the client had properly backed up the data.
(8) The client is obliged to maintain confidentiality from third parties regarding remuneration, details of the service description and internal communication.
§ 9 Default by the client, default of acceptance, resignation
(1) If the client fails to perform one of its obligations to cooperate in accordance with the agreement, the resulting consequences, such as additional services and delays, shall be borne by the client. The agency may charge the client for the additional costs incurred.
(2) If information, access, documents or templates such as texts or photos are not available in due time and in full, the agency is entitled not to start the service or to work with placeholders as a makeshift measure. The subsequent entry of the late submitted material counts as a change in the order and is to be paid in addition in accordance with the contractually agreed, as a substitute for the appropriate local remuneration.
(3) The client is informed that the Agency works on a project-related basis and does not carry out more than a specific number of projects at the same time. If the client is in (acceptance) default with his obligations to provide, cooperate or accept, the agency is entitled to postpone the period of performance. This applies in particular if this results in a conflict with other, already scheduled projects of the agency.
(4) Should there be a delay of more than three weeks in the execution of the order caused by the client, the client is obliged to pay for the agency's services provided up to that point and to pay for the additional time required for familiarization on the part of the agency in accordance with the contractually agreed, instead of the usual local, appropriate remuneration.
(5) If the client fails to comply with his obligations to cooperate even after the fruitless expiry of a grace period, the agency may withdraw from the contract and claim compensation instead of performance. In particular, this includes remuneration already earned and lost profit (or unearned overhead contribution) minus saved expenses incurred by the agency.
§ 10 Duration/Termination
(1) The contract to create the website is independent of duration and ends with the provision of the agreed services by the agency.
(2) The maintenance and care contract is concluded bindingly for a fixed period of 6 months; the provision of services begins, if a website has been created earlier, one month after its acceptance, otherwise when the order is placed. The contract is extended by a further 6 months, unless it is terminated in writing with a notice period of 1 month before the end of the contract period.
(3) The right to terminate without notice for good cause remains unaffected. In particular, the agency is entitled to terminate without notice
- if the client is more than one month late with a payment due.
- the client culpably breaches a contractual obligation even after a warning.
(4) A prior warning is not required if the client's breach of duty is so serious that the continuation of the contract would be unreasonable for the agency. This is particularly the case if the agency itself would be liable to third parties due to the breach of duty.
(5) If the client terminates the contract without good cause, the client is obliged to pay the agreed remuneration minus what the agency saves in expenses and acquires through other use of its labor or maliciously refrains from acquiring. Alternatively, the agency is entitled to 5% of the portion of the remuneration attributable to the service not yet provided. The same applies if the client is responsible for the immediate termination by the agency, but in this case the client is also obliged to compensate for any further damage suffered by the agency. If the agency is responsible for termination without notice by the client, the agency must reimburse the client for unused advance payments and compensate for any additional damage.
§ 11 Right of use
(1) After payment, the client acquires a simple and non-exclusive right of use of any agency designs.
(2) Insofar as works are used which are used under a CC license or an open source license, these license terms apply.
(3) With the license, the client acquires the right to edit, redesign or delete the design, text or other content provided. The client agrees that the agency will name the service for the client as a reference on its website and in other publications online and offline. To do this, the agency may display or let excerpts from your work expire for the client, link the account and use the client's name, brand and logo for this purpose. The client may withdraw this consent with effect for the future for good cause.
§ 12 Warranty rights, statute of limitations
(1) The contractor's warranty is based on the statutory rules, but is initially limited to subsequent performance.
(2) Within the scope of the mandate, there is freedom of design in favour of the agency. Claims for defects in artistic designs exist only insofar as these designs differ significantly from the pre-contractual proposals and these deviations are not due to technical reasons, lack of granting rights or lack of cooperation on the part of the client. If changes beyond this are desired, these must be paid in addition in accordance with the contractually agreed remuneration, as a substitute for the usual local, appropriate remuneration.
(3) If changes are made to the service by the client, the warranty is void if the client does not refute a corresponding substantiated claim by the agency that only such a change caused the defect.
(4) Advertising information from third parties, in particular by manufacturers of software used by the agency to provide services, is not binding on the agency. Insofar as the client is a company, the client's rights due to deficiencies in the service expire one year from delivery or acceptance of the service. This also applies to the client's rights to compensation or compensation in lieu of performance, including due to all damage to the client's other legal interests that have arisen as a result of the defect, unless there is damage to the client's life, body or health or the agency is responsible for the defect due to intent or gross negligence.
§ 13 Contract documents
(1) The agency reserves all property rights and copyrights to illustrations, drawings, calculations, sketches, drafts, photographs, graphics, designs and other documents. They are not the subject of the contract; the client cannot demand that they be returned.
§ 14 Confidentiality, data protection
(1) The parties shall keep the details of their cooperation confidential.
(2) All documents or objects or data provided by the other party must be treated confidentially and may only be reproduced or made available to third parties for contractual purposes. They must be returned to the other party and copies destroyed as soon as they are no longer required for the execution of the contract or the contract is fulfilled or otherwise terminated. The same obligations apply to employees and other third parties involved.
(3) In accordance with the GDPR, contract data is collected for the contract (e.g. name, address and email address, any services used and all other data transmitted electronically or for storage that is necessary for the execution of the contract), insofar as they are necessary to establish, structure or change a contract.
(4) The contract data will only be passed on to third parties (vicarious agents) insofar as it is necessary for the performance of the contract, this corresponds to the prevailing interest in effective performance in accordance with the GDPR or other legal permission. The data will not be transferred to a country outside the EU unless the EU Commission has established a level of data protection comparable to that in the EU, consent has been given or standard contractual clauses have been agreed with the third provider.
(5) The rights of data subjects can be derived in detail from the GDPR. They include the withdrawal of consent, information about processed personal data, the correction and deletion of data, and the restriction of data use.
(6) In principle, the data will only be stored for as long as required for the purpose of the respective data processing. Further storage is considered in particular if this is still necessary for legal prosecution or legitimate interests or if there is a legal obligation to still store the data (e.g. tax retention periods, limitation period).
§ 15 Jurisdiction, Place of Fulfilment, Dispute Resolution
(1) Unless otherwise stated in the order confirmation or contract, the place of fulfilment is the registered office of the agency JD Business Solutions.
(2) In the event of disputes arising from the business relationship between agency and client, the parties are obliged to seek an amicable solution. If an agreement is not reached, they commit themselves to settle their differences through mediation before recourse to legal action. The possibility of urgent proceedings by way of interim relief remains unaffected. A simple failure to pay remuneration without justification is not a dispute.
12.10.2024
