General Terms and Conditions of Schwarz+Matt GmbH
(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 by individual contract, the provisions of the General Section (A.) shall apply.
Based on the information provided by the customer in advance, Schwarz+Matt makes 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.
(1) The parties shall comply with the applicable, esp. 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) Insofar as commissioned processing within the meaning of Art. 28 DSGVO is carried out for the Customer within the framework of the contractual relationship, the contracting parties shall conclude a separate commissioning agreement in which the details of the data processing are regulated.
(1) The contracting parties shall maintain secrecy with regard to all information to be treated confidentially which has come to their knowledge within the scope 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 respective 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 be omitted for such information or parts thereof for which the receiving party proves that it is
– were known or generally accessible to it before the date of receipt;
– were known or generally available to the public prior to the date of receipt;
– became known or generally available to the public after the date of receipt without the responsibility of the party receiving the information.
(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.
(1) Schwarz+Matt shall be liable without limitation – unless otherwise stipulated in the special section of these GTC or in an individual contract – 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 shall 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.
(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.
(1) Neither of the parties shall be obliged to fulfill the contractual obligations in case of and for the duration of force majeure. Insb. following circumstances shall be considered as force majeure in this sense:
– fire/explosion/flood for which the party is not responsible;
– War, mutiny, blockade, embargo;
– labor dispute lasting more than 6 weeks and not culpably brought about by the party;
– technical problems of the Internet beyond the control of either party; this shall not apply if and to the extent that the Provider also offers the telecommunication 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 uninterruptedly for more than 3 months, both parties shall be released from their performance obligations.
Schwarz+Matt is entitled to name the customer and a description of the services provided as a reference on the Internet (incl. social media), television, in print advertising, in editorial texts and other media and to advertise with them. Upon the Provider’s request, the Customer shall also provide the Provider with its logo in a common file format for this purpose.
(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 insofar as persons employed by Schwarz+Matt perform the services on the customer’s premises.
(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 shall be available to the other Contracting Party as a contact person in connection with the provision of services and who shall be authorized to make binding declarations for the respective Contracting Party and to receive declarations from the other Contracting Party.
(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 of performance, Schwarz+Matt shall provide the services in accordance with the original agreement.
(1) Unless otherwise agreed, Schwarz+Matt shall remain the owner of all materials which are or may be protected by industrial property rights or positions similar to industrial property rights of any kind (e.g. patent rights, trademark rights, utility model and design rights, copyrights) and whether registered or not (“Intellectual Property Rights”) (“Materials”) and to which it is entitled at the time of conclusion of this Agreement or which are developed by it (or by third parties on its behalf) after conclusion of the Agreement. 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 grants the customer a non-exclusive, unlimited, transferable right to use and exploit the materials in question comprehensively – unless otherwise agreed – that have been contractually created for the customer and identified as such in the service description.
(1) Unless otherwise agreed, Schwarz+Matt shall provide the contractual services on a time-billing basis, whereby the hourly rate shall be 100.00€ per hour plus VAT. VAT amounts. Billing is done in 15-minute intervals (0.25 hours). Schwarz+Matt will invoice the customer for the time spent on a monthly basis. The value added tax is shown separately. Schwarz+Matt records the time spent and keeps appropriate records. The time spent must be confirmed weekly by the customer’s project manager at the request of Schwarz+Matt.
(2) Fees to be invoiced monthly shall be paid by the Customer to the account specified by Schwarz+Matt within ten days of receipt of the proper invoice.
(3) The customer shall reimburse Schwarz+Matt for any necessary and proven expenses incurred by Schwarz+Matt in the performance of its duties under this agreement. The necessity and scope of travel will be agreed with the customer before the start of the trip. Schwarz+Matt shall invoice the expenses on a monthly basis and provide evidence of these expenses in the form of appropriate receipts.
In principle Schwarz+Matt charges 0,50€ per km journey by car. Train journeys are completed in 1st class, flights in economy class. Hotel nights are charged at max. 150,-€ per person per night booked.
(4) Travel times shall be invoiced at 50% as working times.
(5) Advance payments agreed between the parties shall be due on the contractually agreed dates.
(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.
1. subject matter of the contract
(1) If Schwarz+Matt has undertaken to provide consulting services (“Order for Consulting Services”), the provisions of Section B.I. of these GTC shall apply. The service is provided on the basis of a service contract within the meaning of §§ 611 et seq. BGB. Services under a contract for work and services are not the subject of the order. Consulting services may include, in particular, the following activities, whereby the service and its scope shall be determined exclusively by the contract concluded between the parties:
a) Participate in the development of the marketing strategy;
(b) Participate in the development of revenue targets;
c) Participation in the preparation of the marketing budgets required for this purpose and their breakdown for advertising and sales promotion;
d) Evaluation of all quantitative and qualitative competitor observations as well as market studies, market and consumer research;
(e) advising on issues of national, regional, or local priority setting;
f) suggestions for improvements or changes to the products and their equipment
g) Management consulting, esp. Start-up consulting and business development
(e) Booking of media services
(2) If agreed, the provisions of this section shall also apply to the planning, design and development services in connection with the consulting services as well as the implementation of the necessary advertising measures.
2. legal responsibility of the customer
The legal responsibility with regard to the admissibility of the proposed measures or achieved work results under competition law is borne exclusively by the customer. The customer is obliged to carefully check and ensure that these do not violate any legal provisions or third party rights when used.
1. subject matter of the contract
If the subject of the contract is the development and creation of a website for the customer, with which the customer can appear on the Internet, the following provisions of the GTC apply.
2. development and design of the website
(1) Schwarz+Matt develops and designs a website based on the information provided by the customer, whereby Schwarz+- Matt retains a corresponding scope for design.
(2) Insofar as the procurement of content elements of the website (such as image, sound, video files, texts, logos, interactive elements, software, etc.) is not expressly to be carried out by Schwarz+Matt, the customer shall be exclusively responsible for this.
(3) Schwarz+Matt shall transfer the created website to the customer’s area of disposal upon completion. It may do so by uploading the data to a server specified by the customer and made accessible by transmitting the access data, by handing over a physical data carrier or in any other manner reasonable for the customer.
3. material defects and defects of title
(1) The Contractor is not responsible for content provided by the Customer. In particular, the contractor is not obliged to check the content for possible violations of the law. In addition, Schwarz+Matt is only obligated to fulfill material defects and defects of title in accordance with the statutory provisions, taking into account the following regulations:
(2) A defect shall be deemed to exist insofar as the delivery or services (a) do not have the agreed quality, (b) are not suitable for the use provided for in the contract; or (c) are not suitable for normal use and do not have the quality which is usual for services of the same type and which the customer can expect according to the type of service.
(3) If it is legally established that the deliveries or services of Schwarz+Matt infringe the rights of third parties, Schwarz+Matt shall, at its option, either procure for the customer the necessary right to use the infringed rights at its own expense or replace or modify the services in such a way that they no longer infringe the rights but continue to comply with the contractual agreements.
(4) Any existing rights of reduction and the right of self-execution are excluded. Claims acc. §§ 812 ff. BGB are unaffected by this.
(5) If, after termination of the contract, the customer demands that a defect in a program be remedied, citing a material defect and/or a defect in title, the customer shall bear the burden of proof that this defect is due to a service provided by Schwarz+Matt. The explanation and proof shall be deemed to have been provided if he explains and proves that this defect did not occur under comparable circumstances prior to the provision of a specific service to be specified by the customer, but only became apparent thereafter, without any causes other than the specified service being apparent. In particular, the customer shall demonstrate and prove that no changes have been made after termination of the contract on which the defect may be based.
(6) The right to terminate for cause and the right to assert claims for compensation for wasted expenses or claims for damages under the limitation of liability shall remain unaffected.
(7) The liability for material defects and defects of title for the services provided shall expire if the customer or third parties make changes that Schwarz+Matt has not expressly agreed to in advance. Anything else shall only apply insofar as the customer demonstrates and proves that the defect is not due to the modifications and that these have not impeded the identification and elimination of the defect.
(8) If the Customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), it shall only be entitled to any claims based on material defects and defects of title if it has complied with its obligation to give notice of defects within the meaning of § 377 of the German Commercial Code (Handelsgesetzbuch).
4. cooperation obligations of the customer
(1) The customer shall provide Schwarz+Matt with all information necessary for the development of the concept (or prototype) in a timely manner and shall express requests in a timely manner.
(2) Upon request by Schwarz+Matt, the customer shall provide Schwarz+Matt with all content required for the development and creation of the website in the required form. The customer is solely responsible for obtaining and acquiring the rights to this content.
(3) The customer shall provide Schwarz+Matt with the following information immediately upon request in the following form:
(a) Specifications and instructions for the design of the website: in writing or by -mail;
(b) technical specifications (URL, host, mail forwarding, etc.): in writing or by -mail;
(c) If Schwarz+Matt is entitled or obligated to upload the completed website to a web server, the customer shall provide the access data (URL, user name and password) of the relevant server as soon as possible, but no later than at the time of completion of the website.
1. subject matter of the contract
(1) If the subject of the contract concluded with the Customer is the provision of search engine optimization or online marketing services, the provisions of this section shall apply unless otherwise agreed between the parties. II.
(2) Unless expressly agreed otherwise, Schwarz+Matt shall provide the contractually agreed services to the customer as a service within the meaning of §§ 611 et seq. BGB.
2. cooperation services of the customer
(1) An essential factor for the provision of services by Schwarz+Matt is the cooperation of the customer. The customer shall support Schwarz+Matt in the provision of the contractual services to a reasonable extent. In particular, the customer shall provide Schwarz+Matt with all data and documents necessary for search engine optimization free of charge.
(2) If the services of Schwarz+Matt consist of the preparation of concepts or analyses or the support of the Customer in their preparation, the Customer shall provide the necessary cooperation and take measures to implement the concepts within the scope of what is economically reasonable.
(3) The customer shall make the necessary arrangements for the calculation of the traffic, in particular take the technical measures required for the measurement.
3. no duty of disclosure or liability for the use of domains and search terms
(1) Schwarz+Matt is not obligated to inform and advise the customer about the special features, possibilities and traffic customs on the Internet.
(2) For violations of the applicable legal standards, esp. of competition law, which are based on the use of the domains or search terms, Schwarz+Matt shall only be liable if it has expressly assured the customer of its liability in this regard.
(3) Schwarz+Matt is therefore also not obligated to point out in advance that the domain or certain search terms used are unobjectionable under competition or trademark law.
January 27, 2020