General Terms and Conditions for WEB Contracts B2B
1. Object of regulation
1.1. The following general terms and conditions apply to all legal transactions of Oscar Gomez, hereinafter referred to as “Provider”, with its commercial contract partners, hereinafter referred to as “Customer”. Deviating general terms and conditions of the customer shall not apply.
1.2. The respective services and deliveries will be specified in a separate contract with the corresponding service description.
1.3. Offers of the provider are always subject to change and non-binding. Orders are only considered accepted when they have been confirmed in writing by the provider.
1.4. With the order confirmation the offerer sends the contract text as well as these general terms and conditions to the customer.
1.5. The Provider is entitled in individual cases to transfer the work/part of the work to a third party based in Germany or to request the support of such a third party, e.g. in the case of additional services such as the commissioning of a professional photographer. The customer must be informed of this in advance; the contact person remains the provider.
2.1. The amount of the remuneration as well as the mode of settlement depends on the respective contractual agreement. Invoices of the provider are due for payment without any deduction within 10 days of the invoice date. The customer is in default 30 days after receipt of the invoice or by reminder or, if the time of payment is determined by calendar, by non-payment at the agreed time. From the time of default, the Provider shall be entitled to interest on arrears at a rate of 8 percentage points above the prime rate, unless the Customer can prove that the Provider has incurred a lower interest loss. The right to assert any further damage caused by default remains unaffected.
2.2. If the customer changes or cancels orders, work, plans and the like or changes the conditions for the provision of services, the customer shall reimburse the provider for all costs incurred thereby and release the provider from all liabilities to third parties.
2.3. If the customer rescinds the contract before the start of order processing, the provider may demand an appropriate part of the agreed remuneration as a cancellation fee.
2.4. The agreed prices are net prices to which the applicable value added tax is added in each case. Customs duties, licence fees, also subsequently arising charges etc. will also be invoiced to the customer.
2.5. For orders over a longer period of time as well as for larger orders, the supplier is entitled to issue advance invoices and/or partial invoices of an appropriate amount, which are also due immediately without deduction.
2.6. Other activities, drafts or sketches, which the Provider submits to the Customer, are subject to a fee, unless expressly agreed otherwise. If the drafts are used later or to a greater extent than originally intended, the Provider is entitled to invoice the Customer for the remuneration for the use or the difference to the originally paid remuneration.
2.7. The cooperation or other collaboration on the part of the customer has no influence on the amount of the remuneration. A deduction is not permitted, unless other agreements have been made.
2.8. The customer authorizes the provider to order external services such as licenses etc. necessary for the fulfillment of the order. The customer will be informed about this in advance and after written confirmation he commits himself to release the provider for these external services, especially to take over their costs.
2.9. Unless otherwise agreed, travel costs and expenses for travel required in connection with the fulfillment of the order shall be refunded to the Provider by the Customer.
3. Performance period
3.1. Agreed service and delivery dates shall be extended in each case by the period during which the Provider is prevented from rendering the service due to circumstances for which he is not responsible. The same applies to the period in which the Provider waits for information or cooperation from the Customer.
3.2. Delivery obligations or transmission are then fulfilled as soon as the work or service has been dispatched.
3.3. Delivery deadlines are only binding if the customer has properly fulfilled any obligations to cooperate (e.g. procurement of documents, texts, image releases).
4. Cooperation of the customer and rights of use
4.1. The customer provides the provider with the content to be integrated into the website (texts, images, graphics, logos, tables, etc.) in the form agreed upon in accordance with the service description. The customer himself is responsible for the procurement or production of the contents.
4.2. The Customer shall provide the Provider with all other documents and information necessary for the performance of the contractual services.
4.3. Insofar as work is to be carried out on the Customer’s business premises within the framework of the execution of the contract, the Customer shall grant unrestricted access to the Provider’s employees during normal business hours and provide them with premises and working materials to an appropriate extent.
4.4. The customer undertakes to always make copies of the data and documents handed over for himself in order to ensure possible further transmission. Should there be any loss of data, documents, etc. during transmission, of whatever kind, the provider cannot be held liable for this. The customer alone is responsible for the transmission of data.
4.5. The provider endeavors to take all necessary technical and organizational security measures to store the customer’s personal data in such a way that they are not accessible to third parties or the public. Should the customer wish to contact the provider by e-mail, the provider points out that the confidentiality of the transmitted information cannot be completely guaranteed with this communication channel. The provider therefore recommends that confidential information be sent to him/her exclusively by post or as an encrypted file.
4.6. Sketches and drafts as well as finished data and files are subject to copyright law. The provisions of the Copyright Act shall also apply if the level of creativity required by § 2 UrhG is not reached.
4.7. After settlement of all claims against the customer in connection with the order, the provider transfers the rights of use of the commissioned work to the customer to the extent agreed in advance (simple right of use). In case of doubt, the provider fulfils the obligation by granting the customer non-exclusive rights of use within the Federal Republic of Germany for the duration of the assignment.
4.8. Suggestions or any other kind of cooperation on the part of the customer do not constitute a co-copyright. A transfer of the rights of use to third parties by the customer requires the written consent of the provider. Furthermore, the provider is entitled at any time, even if the exclusive right of use is granted, to use designs and reproductions in the context of self-promotion.
5.1. The provider undertakes to execute the order with the greatest possible care and to the best of his knowledge. In addition, the provider is responsible for handling the documents, data, images, i.e. templates, etc. with care.
5.2.The provider is liable for material defects and defects of title in accordance with the statutory provisions. If only merchants are involved in the contract, §§ 377 ff. HGB are applicable additionally.
5.3. Outside of the liability for material and legal defects, the provider is liable without limitation if the cause of damage is based on intent or gross negligence. He is also liable for the slightly negligent violation of essential obligations (obligations whose violation endangers the achievement of the purpose of the contract) and for the violation of cardinal obligations (obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies), but in each case only for the foreseeable damage typical for the contract. The provider is not liable for the slightly negligent breach of other obligations.
5.4. The limitations of liability in paragraph 5.3 do not apply in the event of injury to life, body or health, for a defect after the assumption of a guarantee for the quality of the product and for fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.
5.5. If the liability of the provider is excluded or limited, this also applies to the personal liability of its employees, representatives and vicarious agents.
5.6. The provider is only liable for the loss of the customer’s own data if the data has been backed up by the customer in a sufficiently up-to-date and complete manner and a reconstruction is possible with reasonable effort.
5.7. Liability by the provider is excluded in the case of errors in data carriers, files and data that may occur during data import to the customer’s system. In the event that the Provider suffers a loss of data despite continuous backups, the Customer is obliged to make the relevant data available to the Provider again free of charge.
5.8. The provider is not responsible for the content provided by the customer. In particular, he is not obliged to check the contents for possible legal violations. Should third parties assert claims against the Provider due to possible violations of law resulting from the contents of the website, the Customer is obliged to indemnify the Provider from any liability towards third parties and to reimburse the Provider for the costs incurred by the Provider due to the possible violation of law.
5.9. The Provider is not liable for the allocation of the domain name applied for by the Customer through the responsible registry.
5.10. For the drafts, texts, final versions and final drawings etc. released by the customer, the supplier is not liable. Furthermore, the customer confirms the correctness and completeness of the work with the release.
6.1. Acceptance dates are determined by mutual agreement between the parties in the course of the project. The Provider is entitled to submit individual services to the Customer for partial acceptance.
6.2. As soon as the Provider has provided the service or partial service, the Customer shall carry out a functional test within two weeks and shall inform the Provider in writing of the result of the functional test, in particular of any obvious defects that occur. Provided that the customer does not indicate obvious defects to the provider within this period or takes the service of the provider in use, the acceptance is considered as given.
6.3. On the occasion of the functional test, the provider will remove or otherwise remedy any defects relevant to acceptance within a reasonable period of time. The relevant functional test must then be repeated. Acceptance may not be refused on the grounds of insignificant deviations of the performance from the performance description.
7. Final regulations
7.1. The law of the Federal Republic of Germany shall apply to all legal relations between the parties.
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, Munich (Bavaria) shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.
7.3. Consumers have the possibility to use alternative dispute resolution. The following link of the EU Commission (also called OS platform) contains information about online dispute resolution and serves as a central contact point for the out-of-court settlement of disputes arising from online purchase contracts or online service contracts: https://ec.europa.eu/consumers/odr.
7.4. Place of performance for all services is Munich (Bavaria).
7.5. Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after the conclusion of the contract, the validity of the contract as a whole shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective which the parties to the contract had pursued with the invalid or unenforceable provision. The above provisions shall apply accordingly in the event that the contract proves to be incomplete.
Stand: March 2020