§ 1 Contractual partner, scope of application
(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 take note of them when the contract was concluded, they shall nevertheless apply if the client was aware of or should have been aware of the general terms and conditions from previous transactions.
(3) Any terms and conditions of the client that conflict with or deviate from the agency's general terms and conditions shall not apply. If the agency, in the knowledge of such terms and conditions of the client, performs the delivery or service for which it is responsible, it shall not thereby recognise any terms and conditions of the client that are not contradicted by the agency's general terms and conditions.
(4) These terms and conditions shall only apply to companies and not to private consumers.
§ 2 Subject matter of the contract
(1) The specific contractual obligations of the agency arise in detail from the offer of the agency, which underlies the contract or order. Services not listed there do not become part of the contract. In particular, design, advertising texts, photos and videos are only owed if mentioned in the offer. In case of doubt, the client commissions the creation of a website with a service package that consists of the technical creation of a website, the entry of content and a subsequent maintenance and care contract; the website basically comprises a single landing page, i.e. a one-pager including the integration or linking of the client's legal texts (imprint, data protection declaration, terms and conditions). The realisation of an initial conversation funnel (a guidance system for establishing customer contact) with interview, booking and automation tools is also an additional service, as is the creation of sub-pages for 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 shall remain in place. If the agency provides additional services in accordance with the order without a supplementary remuneration agreement, it shall receive remuneration in accordance with the price list or, if no such list exists, the usual market remuneration.
(3) Insofar as the client verbally places orders with the agency, these are binding. The agency is entitled to demand that the client immediately confirm verbally placed orders in text form. An order is deemed to have been placed if the agency, before reaching an agreement on all points of an order, begins with a part of the order execution in the knowledge of the client and without the client objecting. An order can also be accepted by the agency by carrying out the work if all points of an order have already been clarified. The client is also bound by the agency's written confirmation of the content of a conversation if the client does not object within three working days of receiving the confirmation. (4) The agency is entitled, at its own discretion, to carry out the service itself or to use subcontractors. The agency is entitled to change the internet infrastructure used and the service providers and agents employed to carry out the work 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 change is made and asked to express any concerns about the planned change.
(5) The agency may also provide the services using newer or different technologies, systems, procedures or standards in the course of technical progress, provided that this does not result in any disadvantages for the client.
(6) Depending on the offer, the maintenance and service contract includes the ongoing monthly maintenance of the technical platform of the website, such as updating plug-ins or platform software, to enable uninterrupted and secure operation of the site and to carry out automatic data backups, and also to make 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 service obligations of the maintenance contract are included in the offer.
(7) Services that are not to be provided by the agency itself or its subcontractors in accordance with the contract do not become subject matter of the contract, but are to be commissioned and remunerated by the client itself or in its name and for its account by the agency. For example, this may include media and software licences (e.g. stock photos, SAAS tools, data backup, website plug-ins), 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 legally binding offer from the agency contains the services included in detail and the associated prices.
(3) The client is not entitled to the provision of technical means for the correction of his order, separate information on the technical steps for the conclusion of the contract, information on the storage of the contract, the available languages and codes of conduct, or an immediate confirmation of his order.
(4) The agency is not obliged to provide specific successes and key figures, such as a certain number of contacts from new customers (leads), applications or an increase in sales, nor is it obliged to provide the results of specific 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 area of availability, the client is obliged to accept it in writing within five working days, provided that it meets the contractual specifications and the approved concept (or prototype). 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 accessible for assessment in this form and meets the specifications and the concept (or the prototype). Once parts of the website have been accepted, the client can no longer reject them or demand that they be changed, unless circumstances arise that the client could not have recognised at the time of partial acceptance. The scope and timing of the payment obligation shall remain unaffected by partial acceptance and shall be based exclusively on the accepted offer and these terms and conditions.
§ 5 Prices, payment terms, offsetting, retention
(1) The remuneration to be paid by the client is based on the agency's offer. A flat rate is only ever sufficient if the services offered for it can be seen in detail from the offer.
(2) All prices quoted to companies are net prices plus the respective statutory value added tax, insofar as this is incurred and nothing else has been agreed.
(3) The amount of the remuneration, any partial invoices or payment instalments, as well as the due date for payment, shall be stated in the offer. Unless otherwise agreed, the total remuneration shall be due in advance upon conclusion of the contract.
(4) The remuneration for the maintenance and care contract shall be due for the first time one month after acceptance and shall be invoiced.
(5) The client shall remunerate additional services not agreed upon in accordance with the contractual rates, alternatively in accordance with the agency's price list and, further in the alternative, in accordance with the locally customary, reasonable remuneration. Accompanying services such as user introductions, documentation, training, support or similar are not included in the order by default, but only become part of the contract if this has been expressly agreed.
(6) The client's payment is due immediately. The client is advised that he will be in default at the latest 30 days after receipt of the invoice. If the client is in default of payment, he is obliged to pay default interest and the flat-rate compensation regulated therein.
(7) The client may only offset if its counterclaims have been legally established, are undisputed or have been recognised by the agency, or if the right of set
§ 6 External products, additional services, correction loops
(1) Costs for third-party software or other products that are necessary for the realisation of the project (e.g. purchased 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-party software product. The same applies with regard to restrictions of any required third-party products, such as the functionalities of advertising platforms. If, as agreed, third-party products are provided via an agency licence, the right of use ends when the maintenance contract expires and the client must then purchase the licences at their own expense if they wish to continue operating the site.
(2) In the event of unforeseen difficulties caused by third parties (providers, external software providers, advertising platforms, etc.) and which result in additional work, the client is obliged to pay for the additional work on an hourly basis, based on the contractually agreed, locally customary, appropriate remuneration as shown in the price list.
(3) Unless otherwise agreed, 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. The client is responsible for ensuring that the media is provided in the correct size and resolution, in the correct file and colour format. Otherwise, the client is obliged to pay for the additional processing time on an hourly basis at the contractually agreed or locally customary, appropriate rate. Unless otherwise agreed in the offer, one correction loop with one change per item from the offer is included. Reversal of requested changes, consequential changes and functional or structural changes are to be paid for additionally by the client on an hourly basis, based on the contractually agreed remuneration, as shown in the price list or customary in the locality. The same applies to changes made retrospectively after the start of a new project phase.
§ 7 Time of performance, force majeure
(1) The commencement of any specified time of performance is subject to 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 plead non-performance of the contract.
(2) Force majeure or operational disruptions affecting the agency or its subcontractors, e.g. due to riots, strikes, pandemics, epidemics, lockouts, which temporarily prevent them from providing the service by any agreed deadline or within any agreed period through no fault of their own, shall change the service times by the duration of the service disruption caused by the circumstances. If a corresponding disruption results in a delay in performance of more than two months or if the client's interest in the performance of the contract objectively ceases even before that, the client shall be entitled to withdraw from the contract.
§ 8 Client's duty to co-operate, 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, all information on conflicting copyrights or trademark rights.
(2) The client is advised that he requires a data protection declaration and an imprint for his website. The client must provide this himself; the agency is not able to write and check such legal texts and is also not permitted to provide this service under the Legal Services Act. The client must therefore have a lawyer create and use an imprint and a data protection declaration for his website.
(3) The client is obliged to provide the necessary materials in a common, directly usable digital format. The client shall ensure that the necessary rights of use are granted, in particular reproduction, distribution and editing rights to the extent necessary for the realisation of the project and the work of the agency. The examination of legal admissibility with regard to intellectual property and copyright can only be carried out by a lawyer and is not part of the agency's services.
(4) The client is advised 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, they must ensure that they have acquired all the necessary rights to do so, including the payment of any fees that may be due. The contract does not include the agency conducting research into conflicting trademark, copyright or other industrial property rights.
(5) The client is obliged to provide the agency with all access to its accounts on websites, platforms or other places that is 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 servicing contract, the client is obliged to change the password immediately to prevent any subsequent misuse.
(6) If the client provides the agency with tangible or intangible objects, in particular image, text or sound files, which infringe the rights of third parties, the client is obliged to indemnify the agency on first demand from any third-party claims. This includes, in particular, the costs of legal proceedings.
(7) The client is obliged to carry out the necessary data backups independently as part of its own security, in particular also immediately after the order has been placed. The agency shall not be liable for lost data to the extent that it would still be available if the client had carried out proper data backups.
(8) The client is obliged to maintain confidentiality with regard to remuneration, details of the service description and internal communication with third parties.
§ 9 Default of the client, default of acceptance, cancellation
(1) If the client fails to fulfil one of his obligations to cooperate as agreed, the resulting consequences, such as additional services and delays, shall be at the expense of the client. The agency may charge the client for the additional work involved.
(2) If information, access, documents or templates such as texts or photos are not available in full and on time, the agency is entitled not to start work or to work provisionally with placeholders. The subsequent incorporation of the delayed material counts as a change to the order and is to be remunerated additionally in accordance with the contractually agreed, or alternatively the locally customary, appropriate remuneration.
(3) The client is advised that the agency works on a project-specific basis and does not take on more than a certain number of projects at the same time. If the client is in default of acceptance or in breach of its obligations to provide information or to cooperate, the agency is entitled to postpone the performance period. This applies in particular if this results in a conflict with other projects of the agency that have already been scheduled.
(4) Should a delay in the realisation of the order of more than three weeks arise that is caused by the client, the client is obliged to pay for the services provided by the agency up to that point and to remunerate the agency for the additional time required for the resumption of the project for the agency to catch up, in accordance with the contractually agreed, or alternatively the locally customary, appropriate remuneration.
(5) If the client still fails to fulfil his obligations to cooperate after a grace period has expired without result, the agency may withdraw from the contract and claim damages in lieu of performance. These include, in particular, the remuneration already earned and lost profit (or the unearned contribution to overheads) less expenses saved by the agency.
§ 10 Duration / Termination
(1) The contract for the creation of the website is not dependent on duration and ends with the provision of the agreed services by the agency.
(2) The maintenance and service contract is binding for a fixed term of 6 months; if a website has been previously created, the provision of services begins one month after its acceptance, otherwise with the placing of the order. The contract is automatically extended by a further 6 months if it is not terminated in writing with a notice period of 1 month before the end of the contract period.
(3) The right to terminate the contract without notice for good cause remains unaffected. In particular, the agency is entitled to terminate the contract without notice
- if the client is more than one month in arrears with a due payment.
- the client culpably violates a contractual obligation even after a warning.
(4) No prior warning is required if the client's breach of duty is so serious that it would be unreasonable to expect the agency to continue the contract. This is particularly the case if the agency itself were to 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 less what the agency saves in expenses and acquires through other use of its labour or maliciously fails to acquire. 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 agency's termination without notice, but
§ 11 Right of use
(1) After payment, the client acquires a simple and non-exclusive right of use to any designs created by the agency.
(2) Insofar as works are used that are used under a CC licence or an open source licence, these licence conditions apply.
(3) With the licence, the client acquires the right to edit, redesign or delete the design, text or other content supplied. The client agrees that the agency may name the service provided to the client as a reference on its website and in other publications online and offline. The agency may display or play excerpts from your work for the client, link the account and use the client's name, brand and logo for this purpose. The client may revoke this consent with future effect for good cause.
§ 12 Rights in the event of defects, limitation
(1) The contractor's warranty is based on the statutory provisions, but is initially limited to subsequent performance.
(2) The agency shall have freedom of design within the scope of the order. Claims for defects in artistic designs shall only exist if these designs differ significantly from the pre-contractual proposals and these differences are not due to technical reasons, a lack of rights granted or a lack of cooperation on the part of the client. If changes beyond this are desired, these shall be remunerated additionally in accordance with the contractually agreed, or alternatively, the locally customary, appropriate remuneration.
(3) If the client makes changes to the service, the warranty shall lapse if the client does not refute a corresponding substantiated claim by the agency that it was such a change that caused the defect.
(4) Third-party advertising information, in particular from manufacturers of software used by the agency to provide the service, is not binding on the agency. If the client is a company, the client's rights with regard to defective performance shall become time-barred one year after delivery or acceptance of the service. This also applies to the client's rights to compensation or compensation in lieu of performance, including compensation for any damage to other legal interests of the client arising from the defect, unless the damage involves the client's life, limb 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. These are not subject matter of the contract and the client cannot demand their return.
§ 14 Confidentiality, data protection
(1) The parties shall treat the details of their cooperation confidentially.
(2) All documents, objects or data provided by the other party must be treated confidentially and may only be duplicated or made accessible to third parties for contractual purposes. They must be returned to the other party and copies destroyed as soon as they are no longer needed for the execution of the contract or the contract has been fulfilled or otherwise terminated. The same obligations apply to employees and other third parties involved.
(3) Contract data is collected for the contract in accordance with the GDPR (e.g. name, address and email address, any services used and all other data transmitted electronically or for storage that is required for the execution of the contract), insofar as it is necessary for the establishment, content or modification of a contract.
(4) The contract data will only be passed on to third parties (vicarious agents) if it is necessary for the fulfilment of the contract, if this corresponds to the overriding interest in an effective service in accordance with the GDPR or if consent has been given in accordance with the GDPR or other legal permission. Data will not be transferred to a country outside the EU unless the EU Commission has determined that the data protection there is comparable to that in the EU, consent has been obtained to do so, or standard contractual clauses have been agreed with the third-party provider.
(5) The rights of data subjects can be found in detail in the GDPR. They extend to the revocation of consent, information about processed personal data, the correction and deletion of data, and the restriction of data use.
(6) In principle, data is only stored for as long as is necessary for the purpose of the respective data processing. Further storage may be necessary, in particular, for the purposes of legal proceedings or for the purposes of legitimate interests, or if there is a legal obligation to continue to store the data (e.g. tax retention periods, limitation periods).
§ 15 Jurisdiction, Place of Performance, Dispute Resolution
(1) Unless otherwise stated in the order confirmation or the contract, the place of business of the JD Business Solutions agency is the place of performance.
(2) In the event of disputes arising from the business relationship between the agency and the client, the parties are obliged to seek an amicable solution. If no agreement can be reached, they agree to settle their differences in mediation before taking legal action. The possibility of an expedited procedure by way of interim relief remains unaffected. No dispute is the simple non-payment of the remuneration without justification.
01.11.2024
