General Terms andConditionsTerms and Conditions

from

EKOM UG
Hochfeldweg 42
89555 Steinheim am Albuch

– in the following: Contractor –

Part 1 – General provisions

1.1 General information

1.1.1 The Contractor offers the Client various agency services. The specific scope of services shall be the subject of individual agreements between the Contractor and the Client.

1.1.2 The Contractor shall not conclude any contracts with consumers or private individuals.

1.1.3 The Contractor shall be entitled to subcontract the necessary services in its own name and for its own account to subcontractors, who in turn may also use subcontractors. Unless otherwise agreed, the Contractor shall remain the sole contractual partner of the Customer. Subcontractors shall not be used if it is apparent to the Contractor that their use is contrary to the Client’s legitimate interests.

1.1.4 Insofar as other contractual documents in text or written form have become part of the contract in addition to these GTC, the provisions of these other contractual documents shall take precedence over these GTC in the event of a contradiction.

1.1.5 The Contractor does not recognize any general terms and conditions that deviate from these terms and conditions and that are used by the Customer – subject to express consent.

1.2 Obligations of the customer to cooperate

1.2.1 If the customer provides the contractor with texts, images or other content to fulfill the services ordered, the customer must ensure that this content does not violate the rights of third parties (e.g. copyrights, trademark law, etc.) or other legal norms. In this context, it is pointed out that the Contractor is not legally entitled to provide legal advice to the Client. In particular, the Contractor is not obliged and legally not in a position to check the Customer’s business model and/or the works (layouts, graphics, texts, etc.) created or acquired by the Customer for their compatibility with applicable law. In particular, the Contractor shall not carry out any trademark searches or other collision checks with regard to the works provided by the Customer. If the customer issues specific instructions regarding the work to be produced, he shall be liable for this himself.

1.2.2 The customer is obliged to provide the information, data, works (e.g. data for the imprint, graphics, logos, etc.) and accesses to be provided by him for the purpose of fulfilling the order completely and correctly. He must also ensure that the instructions he issues comply with applicable law.

1.2.3 Subject to any individual agreements to the contrary, the client shall be responsible for procuring the material for the provision of the agency services (e.g. graphics, videos) and shall make this available to the contractor in good time. If the customer does not provide these and does not make any further specifications, the contractor may, at its own discretion, use image material from common providers (e.g. stock photo service providers) or provide the corresponding parts of the website with a placeholder, taking into account the copyright labeling requirements.

1.2.4 If the conclusion of an order processing contract pursuant to Art. 28 GDPR is required for individual components of the order, both contracting parties undertake to conclude such a contract – to be provided by the contractor – before the start of the provision of services.

1.2.5 The Contractor shall not be liable to the Customer in any way for delays and delays in the implementation of projects caused by delayed (necessary) cooperation or input from the Customer; the provisions under the heading “Liability/exemption” shall remain unaffected by this.

1.2.6 If the customer fails to comply with its obligations to cooperate under this section, the contractor may charge the customer for the additional expenses incurred as a result (e.g. costs for stock photos and time spent searching for them).

Part 2 – Online presence and technology

2.1 Website and store creation (agile)

2.1.1 Unless otherwise agreed individually, the creation of new or the expansion of existing websites/shops or web/shop components (hereinafter “website creation”) shall be based on agile methods. The other provisions of these GTC remain unaffected.

2.1.2 The subject matter of website creation contracts between the Contractor and the Client is generally the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the Client’s technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work within the meaning of Sections 631 et seq. BGB.

2.1.3 The services agreed in detail result from the individual contract concluded between the Contractor and the Client. For this purpose, the customer shall first submit a request to the contractor with a description of the desired website content that is as precise as possible (creative content such as images, layouts, logos, fonts, etc. must be specified and provided by the customer, unless otherwise agreed). This request constitutes an invitation to the contractor to submit an offer. The Contractor shall examine the Customer’s ideas described in the inquiry to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency and shall prepare an offer on the basis of the wishes arising from the Customer’s inquiry. A contract between the Contractor and the Customer shall only come into existence upon acceptance of the offer by the Customer.

2.1.4 The customer may submit customer requests at any time, insofar as these are covered by the originally agreed scope of services. Such amendments shall become part of the original contract if both contracting parties agree in text form (e.g. by e-mail). Otherwise, the Contractor shall only be obliged to produce the functions/items listed in the contract or to provide the agreed service. Any additional services must be agreed and remunerated separately.

2.1.5 As soon as the website has been completed, the Contractor shall request the Client to accept the website.

2.1.6 A prerequisite for the Contractor’s work is that all data (e.g. texts, templates, graphics, fonts) and/or system environments to be provided by the Client and required for the implementation of the project are made available to the Contractor in good time and in a suitable form. The Contractor shall not be liable to the Client in any way for delays and delays in the implementation of projects caused by late (necessary) cooperation or input from the Client.

2.1.7 The verification or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if this has been expressly agreed in the individual contract. There is no entitlement to the publication of graphics, source codes, (development) documentation, manuals and other additional documentation – subject to deviating express individual agreements.

2.1.8 Unless otherwise agreed, the websites created are optimized for the Chrome, Safari, Firefox and Edge browsers in their respective current versions (in each case the last two versions of the browser). Search engine optimization (SEO) is only owed if it has been expressly agreed.

2.1.9 The Contractor is not entitled and not obliged to advise the Customer on competition, consumer, labeling or other legal issues within the meaning of the Legal Services Act. It is therefore the customer’s responsibility to find out about the competition, consumer or labelling law provisions applicable to his store and, if necessary, to have the store checked by a specialized lawyer.

2.1.10 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and care services in relation to the websites. However, the Contractor is not obliged to make such an offer, nor does the Customer have to make use of the Contractor’s further service offers. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and care services are agreed between the parties, the customer alone shall be responsible for the technical maintenance and up-to-dateness of the websites after acceptance. The Contractor shall not be liable to the Customer for any security gaps that are exploited by third parties for illegal purposes through the use of outdated software (hacking).

2.2 Website and store creation (requirements and functional specifications)

2.2.1 If the creation of new or the expansion of existing websites/shops or web/shop components (hereinafter “website creation”) has been agreed between the contracting parties on the basis of a specification sheet, the order shall be processed in accordance with this clause.

2.2.2 The subject matter of website creation contracts between the Contractor and the Client is generally the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the Client’s technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work within the meaning of Sections 631 et seq. BGB.

2.2.3 The scope of the services to be provided by the Contractor shall be determined by individual contractual agreements between the parties on the one hand and, on the other hand, by a detailed specification sheet drawn up by the Customer and the specifications based on this. The Contractor shall check the Customer’s ideas described in the specifications to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency. If the Contractor realizes that the specifications contained in the specifications sheet are not suitable for the creation of a website, the Contractor shall inform the Customer immediately and submit a corresponding proposal for a supplement and/or adaptation of the specifications sheet. The Customer shall comment on any suggestions made by the Contractor with regard to the specifications in writing or in text form within a reasonable period of time and finally confirm the contents of the specifications to the Contractor in writing or in text form. If the parties agree on the specifications, their contents shall become part of the contract.

2.2.4 On the basis of the specifications, the Contractor shall draw up a functional specification which primarily describes the technical and/or design implementation of the requirements contained in the specifications. After completion, the Contractor shall submit the specifications to the Customer for acceptance. The Customer shall be entitled to reject the specifications drawn up by the Contractor and to communicate requests for changes or adaptations. The contractor undertakes to submit a maximum of two alternative proposals, taking into account the customer’s wishes. If the customer finally disagrees with the contractor’s final proposal, the customer or the contractor may terminate the contractual relationship for cause or withdraw from the contract, insofar as this is legally possible. In this case, the fees and/or expenses incurred by the Contractor in connection with the specifications and/or requirements specification shall be appropriately remunerated or reimbursed by the Customer.

2.2.5 If the specifications are accepted by the customer, the services described therein shall be deemed to have been finally agreed between the parties. Any deviation from the contents of the specifications accepted by the customer shall require an express individual agreement between the parties. The Contractor shall not provide any services beyond those described in the specifications accepted by the Customer. Likewise, the Contractor shall not provide any services that are less than those described in the specifications accepted by the Customer. After acceptance of the specifications by the customer, the contractor develops and programs the websites in accordance with the agreed specifications.

2.2.6 The Contractor shall provide the Customer with a schedule and work plan in addition to the specifications. The contents and specifications of this schedule and work plan shall become part of the contract unless the customer objects immediately. The Contractor undertakes to hand over the completed website or parts thereof to the Customer on a suitable data carrier and/or send it by e-mail and/or upload it to a server specified by the Customer by the end date specified in the schedule and work plan. The details of the transfer or upload of the finished websites are otherwise the subject of individual contractual agreements between the parties.

2.2.7 A prerequisite for the Contractor’s work is that all data (e.g. texts, templates, graphics) and/or system environments to be provided by the Client and required for the implementation of the project are made available to the Contractor in good time and in a suitable form. The Contractor shall not be liable to the Client in any way for delays and delays in the implementation of projects caused by late (necessary) cooperation or input from the Client.

2.2.8 As soon as the website has been completed, the Contractor shall request the Client to accept the website. If required, a test phase can be agreed before acceptance. If the Customer discovers errors before acceptance or during an agreed test phase, it shall notify the Contractor of these in writing or in text form. The Contractor shall endeavor to correct the errors professionally. For this purpose, the Contractor may provide temporary workarounds.

2.2.9 The verification or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if this has been expressly agreed in the individual contract. There is no entitlement to the publication of graphics, source codes, (development) documentation, manuals and other additional documentation – subject to deviating express individual agreements.

2.2.10 Unless otherwise agreed, the websites created are optimized for the Chrome, Safari, Firefox and Edge browsers in their respective current versions (in each case the last two versions of the browser). Search engine optimization (SEO) is only owed if it has been expressly agreed.

2.2.11 The Contractor is not entitled and not obliged to advise the Customer on competition, consumer, labeling or other legal issues within the meaning of the Legal Services Act. It is therefore the customer’s responsibility to find out about the competition, consumer or labelling law provisions applicable to his store and, if necessary, to have the store checked by a specialized lawyer.

2.2.12 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and care services in relation to the websites. However, the Contractor is not obliged to make such an offer, nor does the Customer have to make use of the Contractor’s further service offers. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and care services are agreed between the parties, the customer alone shall be responsible for the technical maintenance and up-to-dateness of the websites after acceptance. The Contractor shall not be liable to the Customer for any security gaps that are exploited by third parties for illegal purposes through the use of outdated software (hacking).

2.3 Maintenance and support of websites / stores

2.3.1 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services in relation to the websites (hereinafter “Maintenance Contracts”). The Contractor may also offer the maintenance of third-party websites. However, the Contractor is not obliged to make such an offer, nor does the Customer have to make use of the Contractor’s further service offers. Corresponding agreements are exclusively the subject of individual agreements.

2.3.2 The content of the maintenance contracts is the elimination of malfunctions and the event-driven updating of the website for common web browsers in their respective current version. Further services, such as regular maintenance, can be agreed in individual contracts if necessary.

2.3.3 The Contractor shall not be liable for malfunctions and incompatibilities caused by unauthorized changes made by the Customer or due to other errors that are not the responsibility of the Contractor; the provisions under “Liability/exemption” shall remain unaffected by this.

2.3.4 Unless otherwise agreed, maintenance shall only include the technical updating of the website, but not the updating of its content. Subject to individual agreements to the contrary, the Contractor shall not be responsible in particular for updating the legal notice or the privacy policy.

Part 3 – Marketing

3.1 SEO marketing

The contractor offers the customer services in the area of SEO marketing, among other things. As part of the provision of services, the Contractor shall only be responsible for the implementation of measures which, in the Contractor’s own experience, can have a positive influence on the search engine ranking or which are expressly ordered by the Client. This is a service within the meaning of §§ 611 ff. BGB (GERMAN CIVIL CODE). However, a specific result (e.g. a specific ranking in the search engine hit list) is only owed as part of the SEO services if this has been expressly guaranteed.

3.2 SEA campaigns

The contractor offers the client services in the area of SEA campaigns. As part of the provision of services, the contractor shall only be responsible for submitting proposals for effective keywords and, following approval by the customer, for implementing the measure (placement of advertisements). These are services within the meaning of §§ 611 ff. BGB (GERMAN CIVIL CODE). A specific result (e.g. sales figures) is not owed within the scope of SEA services, unless this has been expressly guaranteed. The contractor is not obliged to check the legality of keywords. The contractor submits proposals to the customer regarding the booking of keywords. The customer is responsible for the legal check, in particular for the trademark rights of third parties and approval of the keywords, before the campaign is carried out. The fee agreed for the services described above does not include the costs for the placement of chargeable advertisements; unless otherwise agreed, these costs shall be borne by the customer.

3.3 Placement of advertisements

3.3.1 The Contractor shall support the Customer in placing advertisements in social media portals, search engines and other media (“Advertisements”).

3.3.2 The Contractor shall advise the Client on how to design its advertisements so that they are as visible as possible. Certain results (e.g. sales figures, leads) are not owed.

3.3.3 The Contractor shall also support the Client in the conceptualization of the texts and images for the advertisements. However, the selection of content for the advertisements (images, texts, videos, imprints, etc.) is the sole responsibility of the customer. The contractor will not check these contents, or the advertisements as a whole, for their content-related or legal accuracy. In this respect, it is expressly pointed out that the Contractor is not authorized to provide the Customer with legal advice. Should the Contractor nevertheless determine in individual cases that the content provided by the Customer and/or the advertisements violate applicable law, the Contractor may refuse to post such content or create the advertisements.

3.3.4 All content must be approved by the customer and is then uploaded to the respective advertising channels by the contractor, whereby the contractor is only responsible for the technical uploading of the content and is only responsible for this; the provisions under “Liability/exemption” remain unaffected.

3.3.5 The fee agreed for the services described above does not include the costs for the placement of chargeable advertisements; unless otherwise agreed, these costs shall be borne by the customer.

3.3.6 The customer alone is the service provider within the meaning of Section 10 TMG. The Contractor shall only act as the Customer’s processor.

Part 4 – Other provisions

4.1 Prices and remuneration

The remuneration for the Contractor’s services is the subject of an individual contractual agreement between the parties and is generally based on the offer.

4.2 Acceptance

If a work performance has been agreed, the Contractor shall request the Customer to accept it. The acceptance period within the meaning of § 640 para. 2 S.1 BGB is set at 2 weeks from the request for acceptance, unless a different acceptance period is required in individual cases due to special circumstances, which the Contractor shall inform the Customer of separately in this case. If the customer does not respond within this period or does not refuse acceptance due to a defect, the work shall be deemed to have been accepted.

4.3 Warranty for defects

An insignificant defect does not justify any claims for defects. The choice of the type of subsequent performance lies with the contractor. The limitation period for defects and other claims shall be one (1) year; this shortening of the limitation period shall not apply to claims resulting from intent, gross negligence or injury to life, limb or health by the Contractor. The limitation period shall not recommence if subsequent performance takes place within the scope of liability for defects. Otherwise, the statutory warranty for defects remains unaffected.

4.4 Granting of rights, self-promotion and right of mention

4.4.1 The Contractor shall grant the Customer – after full payment of the order by the Customer – a simple, non-transferable right of use to the corresponding work results. Further rights can be agreed in individual contracts.

4.4.2 Unless otherwise agreed, the Client expressly grants the Contractor permission to present the project to the public in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, the Contractor shall be entitled to advertise the business relationship with the Customer and to refer to itself as the author on all advertising material produced and in all advertising measures, without the Customer being entitled to any remuneration for this.

4.4.3 Furthermore, the Contractor shall be entitled to place its own name, with a link, in an appropriate manner in the footer and in the legal notice of the website(s) created by the Contractor, without the Customer being entitled to any remuneration for this.

4.5 Confidentiality

The Contractor shall treat as strictly confidential all business transactions of which it becomes aware, in particular, but not exclusively, print documents, layouts, storyboards, figures, drawings, tapes, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and such other documents containing films and/or radio plays and/or other copyrighted materials of the Client or its affiliated companies. The Contractor undertakes to impose the confidentiality obligation on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, sound studios, etc.) who have access to the aforementioned business transactions. The confidentiality obligation shall apply indefinitely beyond the term of this contract.

4.6 Liability/exemption

4.6.1 The Contractor shall be liable without limitation, for any legal reason, in the event of intent or gross negligence, in the event of intentional or negligent injury to life, limb or health, on the basis of a guarantee promise, unless otherwise regulated in this respect, or on the basis of mandatory liability, such as under the Product Liability Act. If the Contractor negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical of the contract, unless liability is unlimited in accordance with the preceding sentence. Essential contractual obligations are obligations which the contract imposes on the contractor according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely. Any further liability of the contractor is excluded. The above liability provisions shall also apply with regard to the Contractor’s liability for its vicarious agents and legal representatives.

4.6.2 The Customer shall indemnify the Contractor against any third-party claims asserted against the Contractor due to violations of these GTC or applicable law by the Customer.

4.7 Final provisions

4.7.1 The contracts concluded between the Contractor and the Customer shall be governed by the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

4.7.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the parties agree that the Contractor’s registered office shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction shall remain unaffected by this.

4.7.3 The Contractor is entitled to amend these GTC for objectively justified reasons (e.g. changes in case law, the legal situation, market conditions or business or corporate strategy) and subject to a reasonable period of notice. Existing customers will be notified of this by e-mail at least two weeks before the change comes into effect. If the existing customer does not object within the deadline set in the notification of change, their consent to the change shall be deemed to have been granted. If he objects, the changes shall not come into force; in this case, the Contractor shall be entitled to terminate the contract extraordinarily as of the date on which the change comes into force. The notification of the intended amendment to these GTC shall refer to the deadline and the consequences of an objection or failure to object.