§ 1 Scope of application
(1) All deliveries and services concluded between the customer and the company Designomo, Am Rausch 2, 63571 Gelnhausen (“Designomo”) shall be subject exclusively to the following General Terms and Conditions in the version valid at the time of the order.
(2) Conflicting, deviating or additional conditions of the customer shall not apply even if they are contained in an order or order following Designomo’s offer and Designomo does not expressly object to them or unconditionally execute the order. Designomo’s silence means rejection of the customer’s conditions.
§ 2 Conclusion of contract
(1) By commissioning the execution of the selected service, the customer submits a binding offer to conclude a contract. The contract between the customer and Designomo is concluded by written or telex acceptance. This also applies to changes, side agreements or supplements.
(2) An execution action according to the order by Designomo replaces the order confirmation. By using the services of Designomo, the customer automatically declares acceptance of this offer and waives access to the declaration of acceptance.
(3) Offers from Designomo in advertisements, flyers, brochures, online magazines etc. are – also with regard to the indication of the price and the service – non-binding and subject to confirmation, unless an explicit binding assurance is apparent.
§ 3 Scope of the service
(1) Designomo offers the following services, among others: Planning, creation, adaptation and maintenance of websites (with or without online shop function), creation of a brand, online marketing with advertisements, security services for websites, web hosting, logo creation, business card creation, flyer design and similar web and graphics services, printing services, production of digital data carriers (USB stick/CD-ROM/DVD etc.), photographers/video services including editing and cloud services.
(2) The company Designomo provides its services according to the specifications and wishes of the customer. Planning, instruction, training and installation are only part of Designomo’s service obligations if this has been explicitly agreed. Extension and change requests must only be considered by Designomo if they are necessary from a technical point of view in order to fulfil the purpose of the contract.
(3) In the case of essential changes to the contractual obligations of Designomo for the purpose of individualisation or adaptation to the interests of the customer, Designomo can invoice the customer for the necessary additional expenditure either as a rate per hour (120€ per hour) or as a lump sum. This also applies to an extensive examination as to whether and under which conditions the adaptation, extension or modification can be carried out, as far as Designomo has pointed this out in writing.
(4) The customer is pointed out that the operation of a website is accompanied by legal obligations, which can lead to civil and criminal consequences. It concerns thereby in particular around:
- Duty to inform according to § 312c BGB (distance contracts);
- the imprint obligation (provider identification) according to § 5 TMG;
- Duty to inform according to § 312e BGB (electronic business transactions);
- Obligation to check the content of blogs, forum discussions or chat portals;
- Obligations to verify the use of hyperlinks (or generally the setting of links);
- Obligation to protect the trademark rights and copyrights of third parties (see also rights of use);
- Obligation to observe media law regulations.
The customer alone is responsible for compliance with the above obligations. Should Designomo suffer any damage as a result because the customer violates the aforementioned obligations, Designomo is entitled to assert claims for damages against the customer or to release Designomo from claims for damages by third parties.
§ 4 Payment processing and prices
(1) The prices listed by Designomo at the time of delivery or delivery apply. Agreed fixed prices shall only apply if the price agreement in the individual case, e.g. due to an offer, contains neither a price increase possibility nor a time limit for the fixed price agreement.
(2) All prices quoted do not include statutory value added tax. Setup, installation, shipping costs, training and other ancillary services are not included in the price unless otherwise agreed. Additional services not included in the offer or price list shall be remunerated separately. This applies, among other things, to additional expenses as a result of
- the presentation of data not in digital form, but in physical form (e.g. via USB stick/CD/ etc.);
- reasonable and necessary use of services provided by third parties (sub-contractors of Designomo or those of the customer)
- commissioned legal examinations and/or test and research services, as well as
- additional expenses for the management of licenses
- Services rendered outside business hours
(3) If the customer defaults on payment, interest on arrears shall be charged at an annual rate of 8% above the base interest rate.
(4) Designomo is entitled to demand an advance payment amounting to half of the total order value for programming or web design services. This applies for the purpose of covering costs that Designomo may incur during the creation of the main service.
§ 5 Time limits, obstacles to performance and deadlines
(1) Delivery periods or dates which can be agreed without obligation or binding require the written form.
(2) If the cooperation of the customer has been agreed or is necessary for the performance of Designomo, the delivery period shall be extended by the time the customer has not fulfilled this obligation.
(3) In case of delays due to
- new or changed customer requirements
- problems with products/services of third parties (e.g. software of other IT manufacturers),
- insufficient conditions in the application environment (hardware or software deficits), as far as they were not known or had to be known to Designomo,
- the performance or delivery date shall be extended accordingly.
(4) If Designomo is unable to perform its contractual services on time or at all due to force majeure, industrial action or other circumstances unavoidable for Designomo, Designomo shall not be subject to any disadvantageous legal consequences.
(5) If the customer orders additions or changes which are not only of minor scope, deadlines and dates which are based on the original subject matter of the contract are no longer valid.
§ 6 Acceptance of the service
(1) The customer shall accept Designomo’s services in accordance with the checklists submitted by Designomo for its support without delay as soon as Designomo notifies Designomo of its readiness for acceptance.
(2) All services provided by Designomo shall be deemed to have been accepted if Designomo has communicated readiness for acceptance with reference to the significance of the omission of the acceptance declaration and the customer then does not declare acceptance to Designomo within a period of time which allows him to recognise essential defects in the service during the required careful inspection, but at the latest after 14 working days.
(3) Paragraph 2 shall also apply if the customer places parts or the entire website (or further services of Designomo) on the Internet accessible to third parties without further examination or commissions Designomo to do so, insofar as the non-acceptance is not based on a considerable defect in the services provided by Designomo.
(4) If the readiness for acceptance is not communicated, the time at which the customer should reasonably have taken note of the services shall apply instead of the time of notification. This is usually done by sending the final product or the launch (public accessibility) of the website.
§ 7 Obligation to cooperate
(1) The customer shall provide necessary data, in particular all content requested by him for the websites in a timely manner and in digital form.
(2) As far as Designomo leaves test versions and/or drafts to the customer under indication of an appropriate period for the examination on completeness and correctness, the drafts and/or test versions are regarded as approved with expiration of the period, as far as Designomo receives no correction request. If no deadline has been set, the drafts/test versions are deemed to have been approved after 14 days.
(3) The customer is responsible for sufficient information and resources within the scope of his obligation to cooperate. He will ensure the availability of the required number of competent employees from an IT and technical point of view and for sufficient computer capacities such as processor performance, cloud or physical memory, line capacities and server hosting.
(4) If Designomo deems this necessary, the customer must provide a test environment including hardware and updated software.
(5) As soon as impairments or failures of the functionality of the products or services of Designomo occur, e.g. of a website, the customer will inform Designomo immediately, stating the error specification and time as well as complete telecommunication data and name (via email, live chat, telephone, online contact form, ticket system) of the responsible and reporting employee.
The customer is responsible for the trouble-free operation of the facilities for remote care and maintenance, in particular solid data lines and digital interfaces.
§ 8 Rights of use
(1) As far as legally possible, Designomo grants the customer a non-exclusive and non-transferable right of use to the services provided by Designomo. If Designomo provides services for the design of the customer’s web presence, the purpose of using the website and/or its components is limited to use solely on the Internet. The customer acquires the aforementioned right only with the complete payment of the services rendered by Designomo.
(2) Upon request, the customer is obliged to inform Designomo in writing about the entire scope of use. When using the customer’s templates, Designomo assumes that the customer has the right of use required for the order and that these are not encumbered with the rights of third parties.
(3) Designomo may make use of third party rights for the website (often third-party licence material related to website elements or picture material), which can only be transferred to the customer (partly temporally) restricted. This restriction may, among other things, result in third-party licence material being made available at considerably changed conditions or no longer over which Designomo has no influence. In such cases Designomo will use its best endeavours to use similar material.
(4) Designomo is entitled to charge the customer for the costs of third-party licence material (e.g. images, elements, plugin licences) by presenting the licensor’s invoice plus a service surcharge of up to 15%. Designomo does not provide any further proof of the rights of third parties in respect of components of the website.
(5) The customer may only use third-party licence material in connection with and exclusively within the framework of the website (or other service or product) created by Designomo. The customer is obliged to compensate Designomo for any damage arising if this results from the incorrect use of the licence material used.
(6) The customer is obliged to inform Designomo immediately of any unlawful use of the licensed material of which he becomes aware and to take legal action against an infringed party or to assist Designomo in doing so.
If the customer becomes aware of infringements of rights of use through the services of Designomo, e.g. through warnings from the licensor, he will inform Designomo immediately.
§ 9 References and copyright notices
(1) The customer grants Designomo the right to incorporate both the Designomo logo and other marketing elements (e.g. hyperlinks) and an imprint created by Designomo into the customer’s websites and to link these to one another and the Designomo website. The customer will take over all legal reservations as well as all protective notes (such as copyright) unchanged. This also applies to the references in the program code to the author, Designomo.
(2) Designomo reserves the right to use all services provided, such as objects or drafts, for presentation and marketing purposes, even if these are based on templates of the customer, including the customer’s website for advertising purposes on the official website of Designomo and partners and to provide these with hyperlinks.
§ 10 Warranty
(1) Defective services or deliveries will be completely replaced or repaired by Designomo within the warranty period of 12 months, which begins on the date of acceptance or delivery, after notification by the customer. Designomo shall provide the customer with a modified version free of charge, which no longer contains the delivered defect, or remedy the defect directly free of charge. All services beyond the defect will be invoiced by Designomo according to standard.
(2) Measures of the troubleshooting are converted by the customer immediately (e.g. install new software, update or replace) and thereby the duties of the information consider.
In case of difficult or unfavourable circumstances, repeated improvements may be necessary. Defects of the service are deviations of the created web page elements from the agreed function and design, as far as the deviations clearly impair the suitability for the agreed use.
(3) No claims for defects exist if the defect is only insignificant, i.e. if it does not explicitly have a significant effect on the agreed use or if the agreed use is not restricted.
(4) If the supplementary performance fails within a period set by the customer for the occurring problem, the customer is entitled to reduce the purchase price or cancel the contract.
(5) The customer must notify Designomo within 10 working days of delivery by registered letter of any obvious defects which are immediately apparent to the average customer. Non-obvious defects must be reported to Designomo within 10 working days of their discovery, otherwise no claims can be asserted for these defects. All defects, including obvious error messages, must be reproduced in detail to the best of our ability. This can be done, for example, by means of a protocol of the errors or a detailed description of the error.
§ 11 Liability
(1) Designomo has unlimited liability for guarantees and defects of title, but liability under the Product Liability Act remains unaffected. Designomo is liable for grossly negligent or even intentional breaches of duty. This also applies to legal vicarious agents and representatives of Designomo. In the event of minor negligence, Designomo and its vicarious agents shall only be liable to a limited extent for the foreseeable damage typical of the contract.
(2) The liability for data loss is limited by the typical effort of restoration. This is measured according to the damage that would have occurred if reasonable measures had been taken to secure the data (e.g. production of back-ups).
§ 12 Data protection obligation of the customer
The customer is obliged to protect himself against loss of data. Since a new installation of plugins/website contents/software, but also the modification of the installed software (e.g. WordPress, Typo3) entails a risk of data loss, the customer is obliged to take comprehensive precautions in the form of backups against the loss of data prior to modification or new installation of the existing software.
§ 13 Data protection and secrecy
(1) The customer is aware and agrees that all personal data, which are stored by Designomo on data media/data clouds for the execution of the required contract and which may be passed on to affiliated companies within the framework of the execution of the order, are stored by Designomo on data media/data clouds. The customer expressly agrees to the processing, use and collection of his personal data.
(2) All stored personal data will of course be treated confidentially by Designomo. For the purpose of credit checks, data may be transmitted by Designomo to agents and to carefully selected business partners.
(3) The processing, use and collection of personal data is carried out in compliance with the TMG (Telemedia Act) and the DSGVO (Basic Data Protection Ordinance).
(4) The customer has the right at any time to revoke his consent with effect for the future. Designomo is thereby obliged to immediately delete the personal data of the customer. In the case of all current user relationships, the deletion shall only take place after termination of the contract.
(5) The customer and Designomo will treat confidentially marked information, which becomes known to them by the contract, confidentially. The source code and the software of the relevant documents and documentations are to be protected against unauthorized access.
(6) Designomo points out that, according to the current state of technology, it is not possible to prevent copies or duplications of works, including other optical or acoustic design means as well as graphics that are available online.
§ 14 Termination
(1) Unless otherwise agreed, maintenance and servicing contracts have a term of 6 months. Either party may terminate the contract with 14 days’ notice before the end of the contract. If no notice is given, the contract is extended by a further 6 months.
(2) The right to termination for good cause remains unaffected. Designomo reserves the right to terminate without notice in particular in the event of a violation of § 8 – rights of use – or if the customer is more than one month in arrears with payment for the service rendered.
(3) The termination must be made in writing.
§ 15 Foreign language, place of jurisdiction and applicable law
(1) The customer and Designomo agree to the application of German law with regard to all legal relationships arising from this contractual relationship. German law shall also apply to cross-border transactions to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The place of jurisdiction shall be Hanau if the customer is a merchant or entrepreneur or a legal entity under public law or a special fund under public law is a contractual partner.
(4) Should individual provisions of this contract be impracticable, partially or completely invalid or become invalid or impracticable after conclusion of the contract, this shall not affect the validity of the remainder of the contract.