General Terms and Conditions
1. Subject matter
- The subject matter of these General Terms and Conditions is, on the one hand, the design and implementation of website(s) and applications for the Customer.
- An additional subject of these General Terms and Conditions is, however, also the maintenance and update of website(s) and applications as well as hosting for the Customer.
- The provider is codafish><> GmbH, Am Altenfeldsdeich 56, 25371 Seestermühe (hereinafter referred to as “Contractor”).
- In this regard, the Contractor shall direct its offers both to entrepreneurs within the meaning of Section 14 BGB [German Civil Code] (hereinafter referred to as “Entrepreneurs”) and also to consumers within the meaning of Section 13 BGB (hereinafter referred to as “Consumers”), including for all future business relationships, even if they are not expressly agreed upon again.
- A consumer within the meaning of Section 13 BGB means every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession.
- An entrepreneur within the meaning of Section 14 BGB means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
- The website or application shall be designed in coordination with the Customer. The scope, functionality and property descriptions shall be listed in the offer documents or specifications. They shall form the basis of the price calculation.
- Third-party software: Insofar as third-party software is included in the provision of the services by the Contractor, the Customer shall acquire an independent licence for this. Accordingly, such third-party software is not part of the services of the Contractor, however any adaptations of the third-party software by or programs developed by the Contractor which interact with the third-party software (e.g. plug-ins developed by the Contractor) are.
- Open-source software: Insofar as open-source software is integrated into the provision of the Contractor’s services, this itself is not part of its services, however independent programs developed by it, such as plug-ins, which interact with the relevant open source software, are.
- At the Customer’s request the Contractor shall endeavour to implement subsequent requests by the Customer for changes or additions, such as an expansion of the scope, the realisation of additional functions, or the modification or expansion of processing stages or elements already approved by the Customer. There shall be no legal obligation on the part of the Contractor to implement subsequent requests for changes or additions, unless from a technical point of view there is no apparent objective reason for refusing the changes. The Contractor shall notify the Customer without delay if the Contractor refuses subsequent change requests from the Customer. The additional expenditure incurred through changes or additions shall be remunerated separately. The additional expenditure shall generally be presented to the Customer for approval by means of a follow-up offer.
3. General information, scope of application
- The General Terms and Conditions of the Contractor shall apply exclusively. They shall apply to all offers, deliveries and services by the Contractor. Insofar as the Customer did not have the opportunity to take note of them at the time of conclusion of the contract, they shall nevertheless apply if the Customer knew or should have known of the General Terms and Conditions from previous transactions. If the contract was concluded via the Contractor’s website, the Customer did indeed have the opportunity to take note of the General Terms and Conditions. They shall therefore be deemed to be the basis of the transaction.
- Conflicting terms and conditions of the Customer which deviate from the General Terms and Conditions of the Contractor shall not apply. If the Contractor performs the delivery or service incumbent upon it in knowledge of such terms and conditions of the Customer, it is not thereby also accepting such terms and conditions of the Customer which do not conflict with these General Terms and Conditions of the Contractor. By signing the contract the Customer has irrevocably accepted the General Terms and Conditions of the Contractor.
- The General Terms and Conditions of the Contractor shall apply both vis-à-vis companies and, in principle also vis-à-vis consumers, insofar as this is possible in relation to consumers (e.g. obligations to cooperate).
4. Offer, conclusion of contract, information
- At the request of the Customer, the Contractor shall submit an offer. The Customer shall then confirm the offer and receive an order confirmation making reference to the GTC. The Customer shall then confirm the offer and receive an order confirmation making reference to the GTC. Depending on the offer inquiry, additional contracts such as software development, software support, web hosting and AV contract are drawn up. The contracts shall then be signed with binding effect either using zoho Sign or similar programs or sent by mail for signing. These contracts shall also be subject to these GTC. If the contract acceptance is received by the Customer only after payment, the payment of the Customer shall be deemed only as security for the order.
- The contents of the contract shall be available to the Customer for retrieval and storage during the order and also be sent to the Customer with the confirmation email. In addition, they shall be stored and can be made available to the user upon request to the email address stated in the legal notice.
- Notwithstanding Section 312i (1) Nos. 1 to 3 BGB, the Customer shall not be entitled to the provision of technical means to correct its order, separate information on the technical steps to conclude the contract, information on the storage of the contract, the languages available and codes of conduct, or an immediate confirmation of its order, unless this is contractually agreed.
5. Contractual content, services
- The Contractor shall create the contractual services for the Customer in a way that is compatible with the current versions of the three main browsers: Chrome, Firefox and Safari. Websites and web apps shall be checked for compatibility with Chrome, Firefox, and Safari in the latest versions. For mobile apps, only a compatibility check for iOS and Android devices shall take place. Due to the variety of different representations in the different browsers and systems, an exact conformance with the representation and functionality can only be guaranteed with unjustifiable effort. Unless these results in a significant deterioration of the functionality of the website, web application or mobile app, such deviations shall not constitute a defect. If the Customer requires an optimisation, this can be booked for a fee.
- For older and future browser versions as well as future CMS, theme, plug-in or other third-party software versions used, perfect functionality cannot be guaranteed. If optimisation for these versions is desired, this can be booked for a fee.
- Costs for third-party software products required for the realisation of the project (e.g. purchase theme or plug-ins) are not included in the price, unless otherwise agreed. Functionalities, responsive web design and browser compatibility can only be granted within the scope of the requirements of the third-party software product.
- In the event of unforeseen difficulties for which third parties are responsible (provider, external software or plug-in provider, etc.) and which result in additional work, the Customer shall be obliged to pay for the additional work on an hourly basis using the contractually agreed or reasonable remuneration customary in the locality.
- The Customer is advised that content on the website originating from third parties (in particular photos, texts, plans, graphics, maps, sound recordings, videos, animations and drawings) may be protected by copyright. If the Customer provides such materials, the Customer itself must ensure that it has acquired all necessary rights for them, if necessary for a fee. A search by the Contractor for conflicting trademark rights, copyrights or other industrial property rights is not part of the contract.
- 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 unless agreed separately. The Customer is responsible for providing the media in the correct size and resolution, file and colour format. Failing this, the Customer shall be obliged to pay for the additional processing work involved on an hourly basis using the contractually agreed or reasonable remuneration customary in the locality.
- Unless otherwise agreed in the offer, one correction loop with one change in each case is included per item in the offer. Reversals of desired changes, consequential changes and functional or structural changes shall be additionally paid by the Customer by the hour on the basis of the contractually agreed or customary local remuneration, as shall subsequently applied changes after the start of a new project phase.
- The Contractor is entitled, at its own discretion, to perform the service itself or to have it performed by competent third parties as subcontractors.
6. Prices, terms of payment, set-off, retention
- The cost items quoted above are only estimates. The actual prices may be up to 15% higher or lower. If the costs for third-party software provided by the Contractor increase, it shall be entitled to increase the contractual prices accordingly. The Contractor shall inform the Customer of this in advance. All prices for entrepreneurs are net prices plus the statutory value-added tax applicable at the time, insofar as this is incurred and nothing to the contrary has been agreed.
- The Contractor is entitled to demand a down payment of a reasonable amount of up to 50% when the order is placed. The Contractor is entitled to demand reasonable payments on account for project parts already delivered to the Customer and to issue partial invoices in this respect according to the progress of the project. In order to do this, the Customer must have accepted the partial services.
- The contractual remuneration shall only apply insofar as contractual services have also been agreed. Additional services shall be remunerated according to the contractual rates in accordance with the offer, or alternatively in accordance with the appropriate remuneration customary in the locality. Accompanying services such as user introductions, documentation, training, support or similar are not included in the order as standard, but instead are only part of the contract if this has been expressly agreed.
- The Customer’s payment shall be due within 14 days, unless payment by instalments has been agreed in writing. The Customer shall be informed that it is in default no later than 15 days after receipt of the invoice. If the Customer is in default with the payment, it shall be obliged in accordance with Section 288 BGB to pay default interest and the fixed-rate compensation regulated there. This shall not affect the right to assert further damages (e.g. collection, legal advice, etc.).
- The Customer may only offset amounts if its counter-claims have been legally established, are undisputed or recognised by the Contractor or if the right to offset is based on the Customer’s rights due to incomplete or defective performance under the same contractual relationship.
- If the Customer is in default, the Contractor is entitled to exercise a right of retention with respect to all claims arising from the business relationship with the Customer.
- The Customer is hereby informed that in the case of orders for services of an artistic and conceptual nature in the field of advertising and public relations, an artists’ social insurance contribution must be paid to the artists’ social insurance fund. This levy is not part of the remuneration and must be borne additionally by the Customer, where applicable. The Customer is responsible for compliance with the obligation to register and pay the levy. If in an individual case the levy is paid by the agency, the Customer is obliged to pay this with proof of payment immediately – i.e. within ten working days.
7. Performance time
- The commencement of any stated performance time presupposes the clarification of all technical, legal and design issues and the timely and proper fulfilment of the Customer’s obligations. The Customer must therefore actively seek to finalise the project so that the Contractor can also ensure the implementation and payment of the project. The Contractor reserves the defence of non-performance of the contract in this respect.
- Force majeure or operational disruptions occurring on the Contractor’s side or on the side of its subcontractors, e.g. due to riots, strikes, lockouts, which temporarily prevent the Contractor, through no fault of its own, from delivering the service on any agreed date or within any agreed period, shall change the performance times by the duration of the disruption of performance caused by the circumstances. If a corresponding disruption leads to a delay in performance of more than two months or if the Customer’s interest in the performance of the contract objectively already ceases before this, the Customer shall be entitled to withdraw from the contract.
8. Endangerment of performance, insolvency
- If, after the conclusion of the contract, it becomes apparent to the Contractor that the (further) fulfilment of the contract is endangered by the Customer’s inability to pay, the Contractor shall be entitled to refuse provision of preliminary work for this contract until the corresponding consideration has been paid by the Customer or security has been provided for the same. This security shall generally consist of personal guarantees of the shareholders or bank guarantees.
- The Contractor is entitled to withdraw from the contract or to terminate it without notice if the Customer fails to provide the corresponding counter-performance pari passu or to provide the security despite a reasonable grace period.
- If the Customer is insolvent or over-indebted, if insolvency or composition proceedings are applied for or opened against its assets, the Contractor is entitled to withdraw from the contract or to terminate it without notice without setting a grace period.
- If the Contractor terminates or withdraws in accordance with paragraph 2 or 3, it may claim damages from the Customer instead of performance or reimbursement of expenses.
9. Customer’s duties to cooperate, liability
- The Customer is obliged to provide the Contractor 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 legal requirements for the website, web application or mobile app and the designs to be created by the Contractor (e.g. logos) as well as all legal texts (e.g. legal notice and data protection information) and any copyrights or trademark rights conflicting with the content. The legal requirements for websites, applications and designs can be assessed and prescribed only by a lawyer. Checking, complying with and updating legal requirements is not part of the order, unless this is expressly agreed against additional remuneration.
Insofar as the Customer does not agree to the additional service of a review of the legal notice and data protection information commissioned by the Contractor by a certified data protection officer/lawyer, the Customer must provide an expert opinion on whether the design of these components complies with the GDPR (General Data Protection Regulation and the BDSG (Federal Data Protection Act).
- If information, documents or templates, such as texts or photos, are not available in good time and in full, the Contractor shall be entitled not to commence performance or to work temporarily with placeholders. The subsequent incorporation of material submitted late counts as a change to the order and must be remunerated additionally in accordance with the contractually agreed, or alternatively the appropriate remuneration customary in the locality.
- The Customer is obliged to hand over required materials in a common, directly usable digital format according to the Contractor’s specifications. The Customer shall ensure that the necessary rights of use are granted, in particular also reproduction, distribution and editing rights to the extent necessary for the realisation of the project and the work of the Contractor. The documents (in particular reproduction, distribution and processing rights) in respect of this must be submitted to the Contractor upon first written request. The review of legal admissibility with regard to intellectual property rights and copyright can only be carried out by a lawyer and is not part of the order.
- The Customer shall ensure that the server and software environment it provides meet the necessary minimum technical requirements for the project with the software environments to be used. Any requirements imposed by the Contractor must be complied with without delay.
- If the Customer provides the Contractor with tangible or intangible objects, in particular image, text or sound files, which infringe the rights of third parties, the Customer is obliged to indemnify the Contractor upon first request against any claims by third parties. This also includes, in particular, the costs of legal action.
- The Customer is obliged to carry out any data backups required as part of its own security, particularly also before the start of the order. The Contractor is not liable for lost data insofar as it would still be available if the Customer had backed up the data properly.
- The Customer is obliged to maintain confidentiality vis-à-vis third parties regarding remuneration, details of the service description and internal communication.
- The Customer is obliged to change the password for all accesses to its accounts on websites, social media platforms or other places immediately after completion of the order, in order to prevent a subsequent misuse of these. This does not apply if further support by the Contractor has been agreed.
- In the case of applications that do not comply with the GDPR, Section 16 paragraph 5 shall apply.
10. Default by the Customer, delay in acceptance, withdrawal
- If the Customer fails to perform one of its obligations to cooperate as agreed, the resulting consequences, such as additional services and delays, shall be borne by the Customer. The Contractor may charge the Customer for the additional work performed.
- The Customer should note that the Contractor works on a project basis and does not carry out more than a certain number of projects at the same time. If the Customer is in default with its provision, cooperation or acceptance obligations, the Contractor shall be entitled to postpone the time of performance. This shall apply in particular if this results in a conflict with other projects of the Contractor that have already been scheduled.
- Should there be a delay in the realisation of the order of more than three weeks caused by the Customer, the Customer shall be obliged to pay for the services rendered by the Contractor up to that point and to additionally remunerate the extra time required for familiarisation on the part of the Contractor when the project is resumed in accordance with the contractually agreed remuneration, or alternatively the reasonable remuneration customary in the locality.
- If the Customer does not fulfil its obligations to cooperate even after the fruitless expiry of a grace period, the Contractor may withdraw from the contract and claim damages instead of performance. This shall include in particular the remuneration already earned and the lost profit (in any case the unearned contribution to overheads) less expenses saved by the Contractor.
- If the Customer terminates the contract without good cause, the Customer shall be obliged to pay the agreed remuneration less what the Contractor saves in expenses and gains or maliciously refrains from gaining through redeployment of its labour. Because of the project-related scheduling by the Contractor, redeployment elsewhere may not be possible at short notice. Alternatively, the Contractor shall be entitled to a claim of 5-15% of the part of the remuneration that is attributable to the performance not yet rendered.
11. Project, acceptance
- The web project will be produced in project phases according to the Customer’s instructions. After each project phase (e.g. mock-ups) the Customer will be asked for (partial) acceptance; after acceptance by the Customer the next project phase will start.
- The Contractor shall deliver or demonstrate each section of work to the Customer and, after each project phase thus completed, request that the Customer accepts the partial work or the complete work within a period of one week (in the case of urgent orders, shorter periods may be chosen). If the Customer does not express any change requests or reservations within this period, the partial work (complete work) shall be deemed accepted if it was acceptable, i.e. if there were no significant defects in the partial or complete performance.
- The Customer is obliged to carry out the acceptance or to notify reservations within a period of one week after receipt of the request for acceptance, insofar as the work is ready for acceptance. If the Customer defaults on this obligation, the provisions of this contract regarding the Customer’s obligations to cooperate and default of acceptance shall apply accordingly.
- Upon acceptance, the risk and danger of the website shall pass to the Customer. The Customer is in particular obliged to comply with the legal notice and data protection information as well as all other legal requirements and to always keep these up to date. Likewise, the Customer must always keep the website up to date with regard to technical requirements. This includes in particular regular updates of the software used (CMS, plug-ins and/or themes).
12. Usage rights
- After acceptance and payment in full, the Customer shall acquire the simple, non-exclusive right of use to the Contractor’s performance. For partial works created before acceptance, all rights shall remain with the Contractor; it is not obliged to release open files or layouts created on the computer to the Customer.
- Insofar as creations are used which are used under a CC licence or an open source licence, these licence provisions shall apply.
- With the licence, the Customer acquires the right to edit, redesign or delete the website or application. In the event of any modification, the Contractor may request to no longer be named as the author of the website.
- The Contractor has the right to be named as the author. It shall provide the website or application in the usual form with a copyright notice including a link to its website; the Customer is not permitted to remove this notice without the consent of the Contractor unless it has an overriding interest in doing so.
- The Customer agrees that the Contractor may name the performance for the Customer as a reference on its website and in other publications online and offline. To this end, the Contractor may display or run excerpts from its work for the Customer, link the URL and use the Customer’s name, brand and logo for this purpose. The Customer may revoke this consent with effect for the future for good cause. If there is no good cause, the revocation can be exercised only with a deletion period of 12 months.
13. Notification of defects, statute of limitations
- Insofar as marketing, search engine optimisation or other consultations are the content of the contract, a certain (economic) success cannot be guaranteed. These are in effect service contracts for which no warranty for defects exists.
- There is freedom of design within the scope of the order. Claims for defects in artistic designs shall only exist insofar as these designs deviate significantly from the pre-contractual proposals and these deviations cannot be attributed to technical causes, failure to grant rights or lack of cooperation on the part of the Customer. If changes beyond this are desired, these shall be additionally remunerated in accordance with the contractually agreed, or alternatively the reasonable remuneration customary in the locality.
- If the Customer makes changes to the service, the warranty shall lapse if the Customer is unable to disprove a substantiated assertion by the Contractor that it was such a change that caused the defect.
- Advertising information provided by third parties, in particular by manufacturers of software used by the Contractor for the provision of services, shall not be binding for the Contractor.
- Insofar as the Customer is a company, the Customer’s rights due to defects in the performance shall become statute-barred one year after the handover or acceptance of the performance. This shall also apply to the Customer’s rights to damages or damages in lieu of performance, and also for all damages to other legal assets of the Customer which have arisen due to the defect, unless it is a matter of damage to the life, body or health of the Customer, or the Contractor is responsible for the defect due to intent or gross negligence.
14. Contractual documents, right of lien
- The Contractor reserves all property rights and copyrights to illustrations, drawings, calculations, sketches, drafts, photographs, graphics, designs and other documents. These are not part of the contract, the Customer cannot demand their return
- For the claims of the Contractor against the Customer arising from this contract, the Customer shall provide a contractual lien on the objects and rights provided by the Customer to the Contractor for processing, such as in particular software, texts, images and other objects and rights protected under copyright and intellectual property law. This contractual lien shall also secure other claims of the Contractor against the Customer which do not originate directly from the order. The lien may also be exercised to the extent that the service provided is removed from the network or blocked.
- The Customer is obliged to provide the Contractor with its respective current address insofar as and for as long as the lien exists. In all other respects, the Customer cannot derive any rights from the fact that the Contractor has sold the item or the right in the event of a–justified–sale of lien and has sent the sale of lien notice only to the last address known to the Contractor, unless the Contractor could easily determine a new address through resident registration information.
- n the event of disputes arising from the business relationship between the Contractor and the Customer, the parties are obliged to seek an amicable solution. Each contracting party may object to mediation upon first written request within 15 working days. The possibility of an expedited procedure by way of interim legal protection remains unaffected. The simple non-payment of remuneration without justification does not constitute a dispute.
- If one party requests mediation from the other party, both parties are obliged to agree on a mediator within 15 days. The language of mediation shall be German, unless all parties agree on another language. If agreement on this is not reached within the time limit, the out-of-court procedure shall be ended.
- Legal recourse (or alternative agreed arbitration, if applicable) is only admissible if the mediation has failed because (a) the parties mutually declare the mediation to be terminated, (b) after the first mediation session further negotiations are refused by one party, (c) the mediator declares the mediation to have failed or (d) an agreement is not reached within three months after the start of the first mediation session or one party has objected pursuant to paragraph 1, unless the parties extend the period by mutual consent.
- The costs of an unsuccessful mediation shall be borne internally in equal parts by the parties vis-à-vis the mediator. Notwithstanding this provision in relation to the mediator, the parties shall be at liberty to demand reimbursement of these costs and those of any accompanying legal advice as legal costs in subsequent proceedings; the respective dispute decision shall then apply. If an agreement is reached, the agreed cost regulation shall apply.
16. Data protection
- Contractual data (e.g. name, address and e-mail address, possibly personal bank details and IP address, any services used and all other data transmitted electronically or transmitted for storage which is necessary for the performance of the contract) will be collected for the contract in accordance with Article 6(1)(b) GDPR, insofar as it is necessary for the establishment, content or amendment of this contract or for mediation or a legal dispute.
- The contract data will only be passed on to third parties insofar as it is necessary (according to Article 6(1)(b) GDPR) for the fulfilment of the contract, this is in line with the overriding interest in effective performance (according to Article 6(1)(f) GDPR) or the consent of the person concerned (according to Article 6(1)(a) GDPR)) or another legal permission exists. The data will not be transferred to a country outside the EU unless the EU Commission has determined that data protection is comparable to that in the EU, consent has been given for this or the standard contractual clauses have been agreed with the third party provider (cf. in particular Articles 44-49 GDPR).
- Data subjects may request information about the stored personal data free of charge at any time. You can demand correction of incorrect data at any time (also by means of supplementation) as well as the restriction of the processing or also the deletion of your data. This applies in particular if the purpose of processing has expired, a required consent has been revoked and no other legal basis exists, or the data processing is unlawful. The personal data will then be corrected, blocked or deleted immediately within the legal framework. You have the right to revoke your consent to the processing of personal data at any time. This can be done by sending an informal message, e.g. by email. The revocation will not affect the lawfulness of the data processing carried out up to that point. Transfer of the contractual data in machine-readable form may be requested. If an infringement of rights is feared as a result of the data processing, a complaint may be filed with the competent supervisory authority.
- As a matter of principle, the data will only be stored for as long as the purpose of the respective data processing requires. Further storage is possible ,in particular if this is still necessary for legal prosecution or for legitimate interests or if there is a legal obligation to retain the data (e.g. tax retention periods, limitation period).
If, despite current case law, the Customer demands the use of products that do not comply with the GDPR, the Customer cannot claim damages from the Contractor if the Contractor has pointed this out to the Customer and the Customer nevertheless insists on the use. (cf. e.g. ECJ judgment of 16/07/2020 C-311/18 Schrems II on “Privacy Shield”).
17. Language of contract, jurisdiction, place of performance
- The languague of the contract is german.
- If the Customer is a merchant, the Contractor’s place of business shall be the place of jurisdiction; however, the Contractor is also entitled to sue the Customer at its place of residence or place of business.
- Unless otherwise stated in the order confirmation or the contract, the place of performance shall also be the Contractor’s place of business in Berlin.
- The provisions of the UN Convention on Contracts for the International Sale of Goods shall expressly not apply, even if orders are placed from abroad or deliveries are made abroad.
- The provisions of Section 306 BGB shall apply in such a way that the parties undertake, contrary to Section 306 (2) BGB, to replace the invalid/void provision with another legally valid provision that most closely fulfils the economic purpose of the omitted provision.
18 Dispute settlement in consumer matters
For the out-of-court settlement of consumer disputes, the European Union provides an online platform (ODR platform) at: https://ec.europa.eu/consumers/odr/
The Contractor is not willing and not obliged to participate in dispute resolution proceedings before a consumer arbitration board.
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