1 General principles / scope of application
1.1 These General Terms and Conditions shall apply exclusively to all legal transactions between the Principal and the Agent (Management Consultant) - hereinafter only the term Agent shall be used. The version valid at the time of the conclusion of the contract shall be authoritative.
1.2 These General Terms and Conditions shall also apply to all future contractual relationships, thus even if no express reference is made thereto in the case of supplementary contracts.
1.3 Conflicting general terms and conditions of the Client shall be invalid unless they are expressly accepted in writing by the Contractor.
1.4 In the event that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision which comes as close as possible to its meaning and economic purpose.
2. scope of the advisory mandate / deputisation
2.1 The scope of a specific consultancy assignment shall be contractually agreed in each individual case.
2.2 The Contractor shall be entitled to have the tasks incumbent upon him/her performed in whole or in part by third parties. Payment of the third party shall be made exclusively by the Contractor itself. No direct contractual relationship whatsoever shall arise between the third party and the Client.
2.3 The Client undertakes not to enter into any business relationship whatsoever with persons or companies used by the Contractor to fulfil its contractual obligations during or up to three years after termination of this contractual relationship. In particular, the Client shall not commission these persons and companies with such or similar consulting services that are also offered by the Contractor.
3. duty of the client to provide information / declaration of completeness
3.1 The Client shall ensure that the organisational framework conditions at his/her place of business allow for undisturbed work conducive to the rapid progress of the consultancy process.
3.2 The Client shall also inform the Contractor comprehensively about previously carried out and/or ongoing consultations - also in other specialist areas.
3.3 The Client shall ensure that all documents necessary for the fulfilment and execution of the consulting assignment are submitted to the Consultant in a timely manner, even without the latter's specific request, and that the Consultant is informed of all processes and circumstances that are of importance for the execution of the consulting assignment. This shall also apply to all documents, processes and circumstances which only become known during the work of the consultant.
3.4 The Client shall ensure that its employees and the employee representation (works council) provided for by law and established, if any, are informed by the Contractor prior to the commencement of the Contractor's activities.
4. safeguarding independence
4.1 The contracting parties undertake to be loyal to each other.
4.2 The contracting parties mutually undertake to take all precautions that are suitable to prevent the independence of the commissioned third parties and employees of the Contractor from being jeopardised. This applies in particular to offers made by the Client for employment or the acceptance of orders on its own account.
5. reporting / reporting obligation
5.1 The Contractor undertakes to report to the Client on its work, that of its employees and, if applicable, that of commissioned third parties in accordance with the progress of the work.
5.2 The Client shall receive the final report within a reasonable period of time, i.e. two to four weeks, depending on the type and scope of the consultancy assignment after completion of the assignment.
5.3 The Contractor shall not be bound by instructions in the production of the agreed work and shall act at his/her own discretion and on his/her own responsibility. He/she shall not be bound to any specific place of work or working hours.
6. protection of intellectual property
6.1 The copyrights to the works created by the Contractor and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organisational plans, programmes, performance specifications, drafts, calculations, drawings, data carriers, etc.) shall remain with the Contractor. They may be used by the Client during and after termination of the contractual relationship exclusively for purposes covered by the contract. The Client shall not be entitled to reproduce and/or distribute the work(s) without the express consent of the Contractor. Under no circumstances shall an unauthorised reproduction/dissemination of the Work give rise to any liability on the part of the Contractor vis-à-vis third parties - in particular for the accuracy of the Work.
6.2 The Client's breach of these provisions shall entitle the Contractor to terminate the contractual relationship immediately and prematurely and to assert other statutory claims, in particular for injunctive relief and/or damages.
7.1 The Contractor shall be entitled and obliged, irrespective of fault, to remedy any inaccuracies and defects in its performance that become known within the scope of the statutory warranty. He/she shall inform the Client thereof without delay.
7.2 This claim of the Client shall expire six months after the performance of the respective service.
8 Liability / Compensation
8.1 The Contractor shall only be liable to the Client for damages - with the exception of personal injuries - in the event of gross negligence (intent or gross negligence). This shall also apply mutatis mutandis to damage caused by third parties engaged by the Contractor.
8.2 Claims for damages by the Client may only be asserted in court within six months of knowledge of the damage and the damaging party, but at the latest within three years of the event giving rise to the claim.
8.3 The Client must prove that the damage is due to the fault of the Contractor.
8.4 If the Contractor performs the Work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client. In this case, the Client shall give priority to these third parties.
- Secrecy / data protection
9.1 The Contractor undertakes to maintain absolute confidentiality about all business matters of which he/she becomes aware, in particular business and trade secrets as well as any information which he/she receives about the nature, scope of operation and practical activities of the Client.
9.2 Furthermore, the Contractor undertakes to maintain confidentiality vis-à-vis third parties regarding the entire content of the Work as well as all information and circumstances that he/she has received in connection with the creation of the Work, in particular also regarding the data of clients of the Client.
9.3 The Contractor shall be released from the duty of confidentiality towards any assistants and substitutes he/she uses. However, he/she shall fully transfer the duty of confidentiality to them and shall be liable for their breach of the duty of confidentiality as for his/her own breach.
9.4 The duty of confidentiality shall extend indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally stipulated obligations to testify.
9.5 The Contractor shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Client shall guarantee the Contractor that all necessary measures have been taken for this purpose, in particular those within the meaning of the Data Protection Act, such as declarations of consent by the persons concerned.
10.1 After completion of the agreed work, the Contractor shall receive a fee in accordance with the agreement between the Client and the Contractor. The Contractor shall be entitled to submit interim invoices in accordance with the progress of the work and to demand payment on account in accordance with the respective progress. The fee shall be due upon presentation of the invoice by the Contractor.
10.2 The Contractor shall issue an invoice entitling to input tax deduction with all legally required features.
10.3 Any cash outlays, expenses, travel costs, etc. incurred shall be reimbursed additionally by the Client against invoicing by the Contractor.
10.4 If the agreed work is not performed for reasons on the part of the Client or due to a justified premature termination of the contractual relationship by the Contractor, the Contractor shall be entitled to payment of the entire agreed fee less any expenses saved. In the event that an hourly fee has been agreed, the fee shall be paid for the number of hours that could have been expected for the entire agreed work, less the expenses saved. The saved expenses are agreed as a lump sum of 30 percent of the fee for those services that the contractor has not yet performed by the day of termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, the Contractor shall be released from its obligation to provide further services. However, this shall not affect the assertion of further claims resulting from non-payment.
- Electronic invoicing
11.1 The Contractor shall be entitled to send invoices to the Client in electronic form. The Client expressly agrees to the Contractor sending invoices in electronic form.
- Duration of the contract
12.1 This contract shall in principle end with the completion of the project and the corresponding rendering of accounts.
12.2 Notwithstanding the foregoing, the contract may be terminated by either party at any time for good cause without notice. Good cause shall be deemed to be in particular
- If a contracting party breaches material contractual obligations, or
- if a contracting party defaults on payment after insolvency proceedings have been opened, or
- if there are justified doubts regarding the creditworthiness of a contracting party in respect of which no insolvency proceedings have been opened and the latter, at the request of the Contractor, neither makes advance payments nor provides suitable security prior to performance by the Contractor and the poor financial circumstances of the other contracting party were not known at the time of conclusion of the contract.
- Final provisions
13.1 The contracting parties confirm that they have provided all the information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
13.2 Amendments to the contract and these GTC must be made in writing, as must any waiver of this formal requirement. Verbal subsidiary agreements do not exist.
13.3 This contract shall be governed by Austrian substantive law, excluding the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods. The place of performance shall be the place of the Contractor's place of business. The court at the Contractor's place of business shall be responsible for disputes.
(1) In the event of disputes arising from this contract which cannot be settled by mutual agreement, the contracting parties agree by mutual consent to call in registered mediators (ZivMediatG) specialising in business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of the business mediators or on the content, legal steps shall be taken at the earliest one month after the failure of the negotiations.
(2) In the event of a mediation that has not been concluded or has been terminated, Austrian law shall apply in any court proceedings that may be instituted.
All necessary expenses incurred as a result of prior mediation, in particular those for legal advisors, can be claimed as "pre-litigation costs" in court or arbitration proceedings, as agreed.
1 Validity, conclusion of contract
1.1 Gregor Wimmer Werbeagentur (hereinafter referred to as the "Agency") provides its services exclusively on the basis of the following General Terms and Conditions. These shall also apply to all future business relations, even if no express reference is made to them.
1.2 Deviations from these as well as other supplementary agreements with the Customer shall only be effective if they are confirmed in writing by the Agency.
1.3 Any terms and conditions of the Client shall not be accepted unless expressly agreed otherwise in writing in individual cases. No special objection to the customer's general terms and conditions by the agency shall be required.
1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to its meaning and purpose.
1.5 The Agency's offers are subject to change and non-binding.
2. scope of services, order processing and cooperation obligations of the client
2.1 The scope of the services to be rendered results from the service description in the agency contract or any order confirmation by the agency, as well as any briefing protocol. Subsequent changes to the content of the service shall require written confirmation by the Agency. Within the framework specified by the customer, the agency shall have freedom of design in the fulfilment of the order.
2.2 All services provided by the Agency (in particular all preliminary drafts, sketches, final artwork, brush prints, blueprints, copies, colour prints and electronic files) must be checked by the Client and approved within three working days of receipt by the Client. If they are not released in time, they shall be deemed to have been approved by the customer.
2.3 The Client shall make available to the Agency, in a timely manner and in full, all information and documents required for the performance of the service. The Client shall inform the Agency of all circumstances that are of significance for the performance of the order, even if these only become known during the performance of the order. The customer shall bear the expense incurred by the fact that work has to be repeated or is delayed by the agency as a result of his incorrect, incomplete or subsequently changed information.
2.4 The Client shall furthermore be obliged to check the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights or other rights of third parties. The Agency shall not be liable for any infringement of such rights. If a claim is made against the agency due to such an infringement of rights, the customer shall indemnify and hold the agency harmless; the customer shall compensate the agency for all disadvantages incurred by the agency due to a claim made by a third party.
3. external services / commissioning of third parties
3.1 The Agency shall be entitled, at its own discretion, to perform the service itself, to make use of competent third parties as vicarious agents in the performance of services that are the subject matter of the contract and/or to substitute such services ("Third Party Service").
3.2 The commissioning of third parties within the framework of an external service shall take place either in the Agency's own name or in the name of the Client, but in any case for the account of the Client. The Agency shall carefully select this third party and ensure that it has the necessary professional qualifications.
3.3 Insofar as the Agency commissions necessary or agreed external services, the respective contractors shall not be vicarious agents of the Agency.
4.1 Unless expressly agreed as binding, stated delivery or service deadlines shall only be considered approximate and non-binding. Binding agreements on deadlines shall be recorded in writing or confirmed by the Agency in writing.
4.2 If the Agency's delivery/service is delayed for reasons for which it is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted by reasonable means, the service obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines shall be extended accordingly. If such delays last more than two months, the Client and the Agency shall be entitled to withdraw from the contract.
4.3 If the Agency is in default, the Client may only withdraw from the contract after having granted the Agency a grace period of at least 14 days in writing and this period has expired fruitlessly. Claims for damages by the Client due to non-fulfilment or delay shall be excluded, except in the case of evidence of intent or gross negligence.
5. early dissolution
5.1 The Agency shall be entitled to terminate the contract with immediate effect for good cause. An important reason shall be deemed to exist in particular if
a) the performance of the service becomes impossible for reasons for which the customer is responsible or is further delayed despite a grace period of 14 days being set;
b) the customer continues to breach material obligations under this contract, such as payment of a due amount or duties to cooperate, despite a written warning with a grace period of 14 days.
c) there are justified concerns about the creditworthiness of the customer and the customer does not make advance payments at the Agency's request or provide suitable security prior to the Agency's performance;
d) bankruptcy or composition proceedings are instituted against the client's assets or an application for the institution of such proceedings is rejected for lack of assets to cover costs, or if the client ceases to make payments.
5.2 The Client shall be entitled to terminate the contract for good cause without granting a grace period. An important reason shall be deemed to exist in particular if the Agency continues to violate essential provisions of this contract despite a written warning with a grace period of 30 days to remedy the breach of contract.
6.1 Unless otherwise agreed, the Agency's fee claim shall arise for each individual service as soon as it has been rendered. The Agency shall be entitled to demand advances in the amount of 25 %, 50 %, 70 % or 100 % to cover its expenses. From an order volume with an (annual) budget of EUR 500,-, or those extending over a longer period of time, the agency shall be entitled to issue interim or advance invoices or to call for payments on account.
6.2 The fee shall be understood as a net fee plus VAT at the statutory rate. In the absence of an agreement in the individual case, the Agency shall be entitled to a fee for the services rendered and the transfer of the rights of use under copyright and trademark law in the amount customary in the market.
6.3 All services of the Agency that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by the Agency shall be reimbursed by the Client.
6.4 The Agency's cost estimates shall not be binding. If it is foreseeable that the actual costs will exceed those estimated in writing by the Agency by more than 15 %, the Agency shall inform the Client of the higher costs. The cost overrun shall be deemed to have been approved by the Client if the Client does not object in writing within three working days of such notification and at the same time discloses less expensive alternatives. If the cost overrun is up to 15 %, a separate notification is not required. This cost estimate overrun shall be deemed approved by the client from the outset.
6.5 The Agency shall be entitled to the agreed remuneration for all work by the Agency that is not carried out by the Client for whatever reason. The offsetting provision of § 1168 AGBG shall be excluded. Upon payment of the fee, the Client shall not acquire any rights of use to work already performed; rather, concepts, drafts and other documents not executed shall be returned to the Agency without delay.
7. payment, retention of title
7.1 The fee shall be due for payment immediately (payment term 10 days from the invoice date) upon receipt of the invoice and without deduction, unless special payment terms are agreed in writing in individual cases. This shall also apply to the charging on of all cash expenses and other expenses. The goods delivered by the Agency shall remain the property of the Agency until full payment of the remuneration including all ancillary liabilities.
7.2 In the event of default in payment on the part of the Customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the Customer undertakes to reimburse the Agency for the reminder and collection costs incurred (45.00 euros from the first reminder), insofar as they are necessary for appropriate legal action. This shall in any case include the costs of two reminders in the amount customary in the market as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
7.3 In the event of default in payment on the part of the Client, the Agency shall be entitled to demand immediate payment for all services and partial services rendered under other contracts concluded with the Client. Furthermore, the Agency shall not be obliged to provide further services until the outstanding amount has been settled. If payment in instalments has been agreed, the Agency reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of payment date).
7.4 The Customer shall not be entitled to set off its own claims against claims of the Agency unless the Customer's claim has been recognised by the Agency in writing or has been established by a court of law.
8. property rights and copyright
8.1 All services provided by the Agency, including those from presentations (e.g. suggestions, ideas, sketches, preliminary drafts, scribbles, final artwork, concepts, negatives, slides), including individual parts thereof, shall remain the property of the Agency, as shall the individual workpieces and design originals, and may be reclaimed by the Agency at any time - in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right of use for the agreed purpose. In the absence of any agreement to the contrary, however, the Client may use the Agency's services exclusively in Austria. The acquisition of rights of use and exploitation of the Agency's services shall in any case require full payment of the fees invoiced by the Agency for such services.
8.2 Modifications or adaptations of the Agency's services, such as in particular their further development by the Client or by third parties acting on the Client's behalf, shall only be permissible with the express consent of the Agency and - insofar as the services are protected by copyright - of the author.
8.3 The Agency's consent shall be required for the use of the Agency's services that goes beyond the originally agreed purpose and scope of use - irrespective of whether this service is protected by copyright. The Agency and the author shall be entitled to separate appropriate remuneration for this.
8.4 The Agency's consent shall also be required for the use of the Agency's services or advertising materials for which the Agency has prepared conceptual or design templates after expiry of the Agency Contract, irrespective of whether this service is protected by copyright or not.
8.5 In the first year after the end of the contract, the Agency shall be entitled to the full agency fee agreed in the expired contract for uses pursuant to para. 4. In the 2nd or 3rd year after expiry of the contract only half or a quarter of the remuneration agreed in the contract. From the 4th year after the end of the contract, no more agency remuneration shall be payable.
8.6 The Client shall be liable to the Agency for any unlawful use in the double amount of the fee appropriate for such use.
9.1 The Agency shall be entitled to refer to the Agency and, if applicable, to the originator on all advertising media and in all advertising measures, without the Customer being entitled to any remuneration for this.
9.2 Subject to the Customer's written revocation, which shall be possible at any time, the Agency shall be entitled to refer to the existing business relationship with the Customer on its own advertising media and in particular on its Internet website by name and company logo (reference).
10.1 The Customer shall report any defects in writing without delay, in any case within eight days of delivery/service by the Agency, hidden defects within eight days of recognising them, describing the defect; otherwise the service shall be deemed to have been approved. In this case, the assertion of warranty claims and claims for damages as well as the right to contest errors due to defects shall be excluded.
10.2 In the event of justified and timely notification of defects, the Client shall be entitled to improvement or replacement of the delivery/service by the Agency. The Agency shall remedy the defects within a reasonable period of time, whereby the Customer shall enable the Agency to take all measures necessary to examine and remedy the defects. The Agency shall be entitled to refuse to improve the service if this is impossible or involves disproportionately high expense for the Agency. In this case, the customer shall be entitled to the statutory rights of conversion or reduction. In the event of improvement, it shall be incumbent on the Client to carry out the transfer of the defective (physical) item at its own expense.
10.3 It shall be the Client's responsibility to check the service for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The Agency shall not be liable for the correctness of content if this has been specified or approved by the Client.
10.4 The warranty period shall be six months from delivery/service. The right of recourse against the Agency pursuant to Section 933b (1) ABGB shall expire one year after delivery/service. The customer shall not be entitled to withhold payments due to defects. The presumption provision of § 924 AGBG is excluded.
11 Liability and product liability
11.1 In cases of slight negligence, liability on the part of the Agency for damage to property or financial loss on the part of the Client shall be excluded, irrespective of whether the damage is direct or indirect, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, defective or incomplete performance. The injured party must prove the existence of gross negligence.
11.2 Any liability of the Agency for claims made against the Client on the basis of the service provided by the Agency (e.g. advertising measure) shall be expressly excluded if the Agency has fulfilled its duty to inform or if such a duty was not recognisable to it, whereby slight negligence shall not be detrimental. In particular, the Agency shall not be liable for litigation costs, the Customer's own legal fees or costs of judgment publications as well as for any claims for damages or other claims of third parties; the Customer shall indemnify and hold the Agency harmless in this respect.
11.3 The Customer's claims for damages shall expire six months after knowledge of the damage; in any case, however, three years after the Agency's infringement. Claims for damages shall be limited to the net order value.
12. data protection
The client expressly agrees that the agency may determine, store and process the data disclosed by the client (name, address, e-mail, credit card data, data for account transfer) with the aid of automated systems for the purpose of fulfilling the contract and supporting the client as well as for its own advertising purposes. The client agrees that electronic mail may be sent to him/her for advertising purposes until revoked.
13 Applicable law
The contract and all mutual rights and obligations derived therefrom as well as claims between the Agency and the Customer shall be governed by Austrian substantive law, excluding the UN Convention on Contracts for the International Sale of Goods.
14 Place of performance and jurisdiction
14.1 The place of performance shall be the Agency's registered office. In the event of shipment, the risk shall pass to the Customer as soon as the Agency has handed over the goods to the carrier chosen by it.
14.2 The court of jurisdiction for all legal disputes arising between the Agency and the Customer in connection with this contractual relationship shall be the court with subject-matter jurisdiction for the Agency's registered office. Notwithstanding this, the Agency shall be entitled to sue the Customer at its general place of jurisdiction.
15. final provisions
15.1 Subsidiary agreements, amendments and supplements must be made in writing to be effective.
15.2 In the event of the end or interruption of the service provision, the Contractor shall be entitled to switch off the homepage made available to the Client or to use the domain made available elsewhere.
15.3 The Contractor reserves the right to amend these GTC. The invalidity of individual provisions of these GTC shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision which comes closest to the former in legal and economic terms according to its meaning and purpose.
15.4 Austrian law shall apply exclusively. The place of performance for both parties shall be the registered office of the contractors. The place of jurisdiction for both parties is 5020 Salzburg.
1. scope of application
1.1 The Client has a contract with Gregor Wimmer Werbeagentur ("Contractor") for the creation and operation of a homepage, the following provisions shall apply to the creation and operation of this homepage of the Client.
1.2 In addition to these "General Terms and Conditions for the Creation and Operation of a Homepage", the "General Terms and Conditions" of the contractors shall apply in any case. Terms and conditions of the client shall not apply.
2. service provision
2.1 The Client shall receive from the Contractor a form for the creation of its homepage concerning the possible contents of the homepage. If he does not receive this, it can be requested at email@example.com. As soon as the contractor receives this form and all other documents and data necessary for the creation and operation of the homepage, the creation of the homepage can begin. The client is responsible for the timely provision of the homepage. The term and thus the payment of the homepage monthly instalments begin with the signature.
3. design of the homepage
3.1 The Contractor shall create a homepage for the Client in accordance with the overview of services, which shall be handed over upon conclusion of the contract and can also be accessed on the Internet at www.herzbluat.at.
3.2 After completion of the homepage, the Contractor shall send the Client a link via which the Client can view the homepage that has not yet been released. The Client shall check the homepage for correctness of content and compliance with the legal obligations (in particular imprint, publication obligations or rules of professional conduct) and notify the Contractor in text form of any correction requests or necessary changes within 5 working days. The Client may request changes to the content, which are not defects, only once prior to activation. If a request for change exists, the Contractor shall implement it within a reasonable period of time, if possible, and send the Client another link to check the changed homepage.
3.3 If the client has released the homepage, the contractor shall release the homepage. The homepage shall also be deemed to have been released without an express declaration of release if the client has not requested a change within 5 working days of sending the link.
3.4 If the Client does not have its own domain, the Contractor offers to provide the Client with a domain. The Contractor does not guarantee that certain domains requested by the Client can be allocated and/or that allocated domains are free of third party rights or will last in the long term. The Customer shall check for itself whether the desired domain encroaches on the rights of third parties. The domain shall be registered to the Contractor. A transfer of the domain to the Customer is only possible with the express consent of the Contractor. The contractor may refuse the release and/or transfer of the domain in particular as long as the client has not completely fulfilled obligations arising from the contract or as long as the contract is in force. The selection of a suitable domain is the responsibility of the Client.
4. operation and maintenance of the homepage
4.1 For the duration of the contract, as well as the further operation after the term, the Contractor shall keep the homepage ready for retrieval on its servers (hosting) and shall ensure the operation of the homepage in accordance with the following agreements.
4.2 The client may make changes to the contents of his homepage himself at any time after activation by means of CMS. Requests for changes going beyond this can be commissioned for a fee.
5. services of the principal
5.1 The Client shall provide the Contractor with the content required for the creation of the website as well as the content required for any desired changes, in particular photo files, videos or texts in a format agreed in advance. The contractor is not obliged to check the content provided by the client, in particular with regard to whether it is suitable for achieving the purpose pursued with the creation of the homepage or whether the content infringes the rights of third parties. However, the contractor reserves the right to reject recognisably illegal content.
5.2 The Client is obliged to identify content on its website as its own content, providing the legally required information (imprint). The Client shall indemnify the Contractor against all claims based on a breach of the aforementioned obligations and shall indemnify and hold the Contractor harmless in this respect.
5.3 If the Client has a domain under which the homepage is to be activated, the Client shall make all declarations necessary to be able to use the domain for the homepage.
5.4 As long as the client does not fulfil his obligations to cooperate (cf. points 2.1., 3.2. and 3.4.), the contractor can refuse to create the homepage. If the Client does not supply any content, the Contractor reserves the right to place the homepage in the production waiting loop for the time being, but not the payment of the 36 monthly fees.
6. rights of use
6.1 For the duration of the contract, the contractor grants the client a simple right to use the homepage created by the contractor for the client for the intended purpose.
6.2 All rights to content provided by the Client shall remain with the Client.
7.1 The creation and online placement of the homepage is settled with the payment of the remuneration of the 36th monthly instalments.
7.2 If the Client is in default with payments of the total of 36 monthly instalments, the Contractor shall be entitled to shut down the homepage until payment is made in full or to block access to it.
8 Warranty and liability
8.1 The Contractor warrants that the created homepage is created in accordance with the contract.
8.2 The contractor programs the homepage in such a way that it can be read and indexed by search engines. However, the Contractor does not assume any guarantee for a specific ranking of the homepage in particular, as the ranking depends on many factors which the Contractor cannot influence.
8.3 The Contractor guarantees an accessibility of its servers of 99 % per year. This does not include times when the server cannot be reached due to technical or other problems beyond the control of the contractor (force majeure, fault of third parties, etc.). The contractor may restrict access to the services if the security of the network operation, the maintenance of the network integrity, in particular the avoidance of serious disruptions of the network, the software or stored data require this.
8.4 The Contractor shall only be liable for damage caused by gross negligence or intent. Liability for lost profits or other consequential damages is expressly excluded. The liability is limited in amount to the remuneration paid by the client. Claims for damages against the contractor must be asserted in court within one year of knowledge of the damage and the damaging party in the event of any other loss.
9. third party rights
9.1 The Contractor warrants that the use and operation of the homepage created by it does not infringe the rights of third parties, insofar as this does not occur through content provided by the Client or infringement of obligations regarding information on the homepage (e.g. imprint). Insofar as the Contractor uses basic technology or software developed by third parties for the creation of the homepage, the Contractor warrants that it has the necessary rights for this and that it is entitled to grant the rights referred to in point 6.
9.2 The contractor assumes no liability for content provided by the client or information on the homepage based on information provided by the client (e.g. imprint). The contractor is also not liable for the infringement of rights by the domain used by the client. If claims are asserted against the contractor by third parties due to the infringement of rights by content or information on the homepage or the absence of information or by a domain, the client shall indemnify the contractor against such claims upon first request and hold the contractor harmless. In such cases, the Contractor shall be entitled to shut down the Client's homepage or block access at its own discretion until the matter has been clarified.