AGB

I. Scope of application

(1) These General Terms and Conditions consist of a General Part (A.) and a Special Part (B.) and govern the contractual relationship between Schwarz+Matt GmbH, Westfalendamm 188, 44141 Dortmund (hereinafter referred to as “Schwarz+Matt”) and its customers. (2) The offer of Schwarz+Matt is exclusively directed at entrepreneurs as defined by § 14 BGB. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity. (3) Terms and conditions of the customer or third parties shall not apply, even if Schwarz+Matt does not separately object to their applicability in individual cases. Even if Schwarz+Matt refers to a letter, e-mail or other text that contains or refers to the terms and conditions of the customer or a third party, this does not constitute an agreement to the validity of those terms and conditions. (4) Unless otherwise agreed between the parties in the Special Section (B.) of these General Terms and Conditions or in individual contracts, the provisions of the General Section (A.) shall apply.

II Conclusion of contract

Based on the information provided by the customer in advance, Schwarz+Matt submits a binding offer to conclude a contract. The offer can be accepted by the customer within 4 weeks by e-mail, fax or in writing, unless otherwise specified in the offer.

III Data security, data protection

(1) The parties shall comply with the respectively applicable, in particular comply with the data protection regulations applicable in Germany (in particular DSGVO). (2) If the Customer collects, processes or uses personal data, it shall be responsible for ensuring that it does so in accordance with the applicable laws, in particular those of the Federal Republic of Germany. data protection regulations and shall indemnify Schwarz+Matt against any claims by third parties in the event of a violation. (3) Schwarz+Matt will collect and use customer-related data only to the extent required for the performance of this contract. The customer agrees to the collection and use of such data to this extent. (4) The obligations under par. 1 to 3 shall continue to exist as long as application data are within the sphere of influence of Schwarz+Matt, even beyond the end of the contract. (5) If order processing within the meaning of Art. 28 GDPR is carried out for the customer within the scope of the contractual relationship, the contracting parties shall conclude a separate order agreement in which the details of the data processing are regulated.

IV. Secrecy

(1) The contracting parties shall maintain secrecy about all information to be treated confidentially which has come to their knowledge within the framework of this contractual relationship and shall only use such information vis-à-vis third parties – for whatever purpose – with the prior written consent of the other party. Information to be treated as confidential includes information expressly designated as confidential by the party providing the information and information the confidentiality of which is clearly evident from the circumstances of its disclosure. The provider must treat the following in particular as confidential. analyses and instructions for action prepared exclusively for the customer. (2) The obligations under par. 1 shall not apply to such information or parts thereof for which the receiving party proves that: – it was known or generally accessible to it before the date of receipt; – it was known or generally accessible to the public before the date of receipt; – it became known or generally accessible to the public after the date of receipt, without the party receiving the information being responsible for this. (3) Public declarations of the Parties on cooperation shall be made only by prior mutual consent. (4) The obligations under par. 1 shall continue to exist beyond the end of the contract for an indefinite period of time, namely for as long as an exceptional circumstance pursuant to para. 2 is not proven.

V. Liability, limits of liability

(1) Schwarz+Matt has unlimited liability – unless otherwise stipulated in the special section of these GTC or in individual contracts – in the event of intent or gross negligence for all damage caused by it and its legal representatives or vicarious agents. (2) In the event of slight negligence, Schwarz+Matt shall be liable without limitation in the event of injury to life, limb or health. (3) The strict liability of Schwarz+Matt for damages (§ 536a BGB) for defects existing at the time of conclusion of the contract is excluded; para. 1 and 2 remain unaffected. (4) Schwarz+Matt shall otherwise only be liable if it has breached a material contractual obligation (“cardinal obligation”). Cardinal obligations are obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the contractual partner regularly relies and may rely – i.e. the essential contractual principal obligations. In these cases, liability is limited to compensation for the foreseeable, typically occurring damage. (5) Schwarz+Matt shall only be liable for data loss or data destruction if it has caused the destruction intentionally, by gross negligence or due to a breach of a material contractual obligation. Schwarz+Matt’s liability is limited to the amount of damage that would have occurred even if the customer had properly backed up the data. (6) Liability under the Product Liability Act shall remain unaffected. (7) All claims under this sec. 6. shall become time-barred within 1 year; with regard to the commencement of the limitation period, Section 199 para. 1 BGB applies. This does not apply in cases of liability due to intent, gross negligence, personal injury or in cases of mandatory liability, e.g. under the Product Liability Act.

VI Contract term and termination of contract

(1) Unless the parties have agreed otherwise, contracts with a specific contract term shall be automatically extended by a further year in each case (extension period) unless they are terminated in writing by one of the contracting parties with three months’ notice to the end of the basic term or an extension period. (2) The right of the contracting parties to terminate the contract for good cause shall remain unaffected. Good cause shall be deemed to exist for a contracting party in particular if the other contracting party breaches material provisions of this Agreement and the breach of contract is not remedied within two weeks of a written request to do so, unless such period or request is exceptionally dispensable taking into account the seriousness of the breach of duty or the other circumstances. (3) Notice of termination must be given in writing.

VII Force majeure

(1) Neither party shall be obliged to fulfill its contractual obligations in the event of and for the duration of force majeure. Insb. The following circumstances are to be regarded as force majeure in this sense: – fire/explosion/flooding for which the party is not responsible; – war, mutiny, blockade, embargo; – industrial action lasting more than 6 weeks and not culpably brought about by the party; – technical problems with the Internet that cannot be influenced by a party; this does not apply if and insofar as the provider also offers the telecommunications service. (2) Each party shall immediately notify the other of the occurrence of a case of force majeure in writing or by e-mail or by fax. (3) As long as black+matte (a) is waiting for the customer’s cooperation or information; or (b) is hindered in its performance by strikes or lockouts in third party companies or in the Supplier’s company (in the latter case, however, only if the industrial action is lawful), official intervention, statutory prohibitions or other circumstances for which it is not responsible (“force majeure”), delivery and performance deadlines shall be deemed to be extended by the duration of the hindrance and by a reasonable start-up time after the end of the hindrance (“downtime”) and there shall be no breach of duty for the duration of the downtime. Schwarz+Matt shall notify the customer of such hindrances and their expected duration without delay. If the force majeure lasts continuously for more than 3 months, both parties shall be released from their performance obligations.

VIII Reference citation

Schwarz+Matt is entitled to cite the customer and a description of the services provided on the Internet (including social media), television, in print advertising, in editorial texts and other media as a reference and to advertise with them. At the request of the provider, the customer shall also make its logo available to the provider in a standard file format.

IX Use of third parties/subcontractors

(1) Schwarz+Matt is permitted – without the customer’s consent – to use third parties or subcontractors to provide the contractually agreed services. Schwarz+Matt shall ensure that the persons it employs for the provision of services are sufficiently qualified. (2) If the conduct or qualifications of the persons employed by Schwarz+Matt do not meet the contractually agreed requirements, the customer shall inform Schwarz+Matt thereof without delay. Schwarz+Matt shall immediately take appropriate measures, which may also consist of replacing the person concerned, if necessary. (3) Schwarz+Matt shall endeavor to ensure continuity in the persons working for the customer. Any replacement shall be notified to the Client in advance and shall only be carried out by a person whose qualifications are at least equivalent to those of the person to be replaced. (4) The persons employed by Schwarz+Matt shall not enter into any employment relationship with the Customer and shall not be subject to the Customer’s authority to issue instructions. This applies in particular if persons employed by Schwarz+Matt provide the services on the customer’s premises.

X. Cooperation between the contracting parties

(1) Close cooperation between the contracting parties is necessary for the provision of services. The contracting parties shall therefore inform each other of all circumstances from their sphere that may have an effect on the provision of services by Schwarz+Matt. (2) The contracting parties shall each appoint a responsible person who is available to the other contracting party as a contact person in connection with the provision of services and who is authorized to make binding declarations for the respective contracting party and to receive declarations from the other contracting party.

XI. Change Request

(1) If contractually agreed, the customer is entitled to request changes to the services in writing. Schwarz+Matt will not unreasonably refuse changes requested by the customer. (2) Schwarz+Matt will promptly review the customer’s change request. If an extensive review of the change request is required, Schwarz+Matt shall be entitled to demand separate remuneration for the time and effort involved in the review. If this is the case, Schwarz+Matt shall notify the customer thereof without undue delay and at the same time submit to the customer a corresponding audit offer with details of the time frame of the audit and the remuneration. (3) If an extensive review of the change request, which is to be paid for separately by the customer, is not required, Schwarz+Matt shall submit to the customer within 10 working days a realization offer containing all information required for the customer’s decision-making process, in particular, the following information: “The customer’s request for change”. specifying performance periods and remuneration. If, in individual cases, it is not possible for Schwarz+Matt to submit a realization offer to the customer within the aforementioned period, it shall notify the customer of this, stating a binding date by which it will submit the realization offer. (4) Changes in performance shall be documented in writing by a corresponding amendment to the contract. As long as the contracting parties have not reached an agreement on a change in services, Schwarz+Matt shall provide the services in accordance with the original agreement.

XII. Intellectual property

(1) Unless otherwise agreed, Schwarz+Matt shall remain the owner of all materials that are or may be protected by industrial property rights or similar rights of any kind (e.g. patent rights, trademark rights, utility model and design rights, copyrights), whether registered or not (“intellectual property rights”) (“materials”), to which it is entitled at the time of conclusion of this contract or which are developed by it (or by third parties on its behalf) after conclusion of the contract. The same applies to edits, modifications and further developments. (2) Upon delivery of these materials, Schwarz+Matt grants the customer a non-exclusive, permanent, non-transferable right to use the materials delivered under this contract to the extent that this results from the purpose of the contract. (3) Customer shall remain the owner of all materials to which it is entitled at the time of the conclusion of this Agreement or which are developed by it (or by third parties on its behalf) after the conclusion of this Agreement (“Customer Materials”). The same applies to edits, modifications and further developments. Insofar as these are made by Schwarz+Matt, they are made for the exclusive use and exploitation by the customer. The following para. 4 shall apply accordingly. The customer grants Schwarz+Matt a non-exclusive, non-transferable right to use the customer materials that is limited to the period and purpose of the execution of the contract. (4) Upon full payment of the agreed remuneration, Schwarz+Matt shall grant the customer a simple, unlimited, transferable right, unrestricted in terms of content and territory, to comprehensively use and exploit the relevant materials created for the customer under the contract and identified as such in the service description, unless otherwise agreed.

XIII Remuneration

(1) Unless otherwise agreed, Schwarz+Matt shall provide the contractual services on a time billing basis, whereby the hourly rate is €100.00 per hour plus VAT. Billing shall be based on 15-minute intervals (0.25 hours). Schwarz+Matt shall invoice the customer for the time spent on a monthly basis. VAT will be shown separately. Schwarz+Matt records the time spent and keeps corresponding records. The time spent must be confirmed weekly by the customer’s project manager at Schwarz+Matt’s request. (2) The client shall pay monthly invoiced fees to the account specified by Schwarz+Matt within ten days of receipt of the proper invoice. (3) The client shall reimburse Schwarz+Matt for the necessary and proven expenses incurred by Schwarz+Matt in the performance of its duties under this contract. The necessity and scope of travel shall be agreed with the Client prior to departure. Schwarz+Matt shall invoice the expenses on a monthly basis and provide evidence of these expenses in the form of corresponding receipts.Schwarz+Matt generally charges €0.50 per km traveled by car. Train journeys are made in 1st class, flights in economy class. Hotel accommodation is booked at a maximum of €150 per person per night.(4) Travel times shall be invoiced at 50% as working hours. (5) Advance payments agreed between the parties are due on the contractually agreed dates.

XIV Other

(1) The contractual relationship shall be governed by German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. (2) In principle, there are no ancillary provisions outside a contract and its annexes. Amendments or supplements to a contract and the appendices must be made in writing to be effective. This also applies to the waiver of the written form requirement. (3) The possible invalidity of individual provisions of this contract shall not affect the validity of the remaining content of the contract. (4) If, in the practical application of these GTC, gaps arise which were not foreseen by the contracting parties, or if the invalidity of a provision within the meaning of Para. 3 legally binding or determined by both parties in agreement, they undertake to fill or replace this gap or ineffective provision in a factual and appropriate manner oriented to the economic purpose of the contract. (5) The exclusive place of jurisdiction shall be the court having jurisdiction over the registered office of the Provider, unless a norm mandatorily orders another place of jurisdiction.