General Terms and Conditions of überdosis GbR
1. Validity of the general terms and conditions
The following terms and conditions apply to all contracts concluded between us and the client. They also apply to all future business relations, even if they are not expressly agreed upon again. Deviating conditions of the client, which we do not expressly recognize, do not become subject matter of the contract, even if we do not expressly contradict them.
2. Scope of services
2.1 The scope of the services to be rendered by us results from the offer and/or the service description on which the offer is based.
2.2 If we are commissioned by the Client with website support services, services in connection with SEO/SEA, usability tests, SLA are not the subject of the support to be provided by us.
2.3 Within the scope of the order, we shall have freedom of design. If the client wishes to make changes during or after the provision of services, he shall bear the additional costs.
2.4 We shall not be liable for the protectability or registrability under copyright, design, competition, trademark and/or patent law of the ideas, suggestions, proposals, concepts, drafts, communication measures and other services provided.
2.5 When preparing our services, we also do not owe the examination of any conflicting rights of third parties, unless expressly agreed otherwise. Therefore, we shall not be liable for the legal admissibility and/or usability of the ideas, suggestions, proposals, concepts, drafts, communication measures and other services provided by us, in particular with regard to competition, copyright, design, trademark and/or patent law. In particular, we shall only carry out design, design, patent or trademark searches after special, chargeable commissioning by the client. If the client requests such a design, patent or trademark search, this must be agreed in writing and paid for separately. However, we will inform the client of any legal risks, if they become known to us during the execution of the order.
2.6 We are not obliged to release so-called open files and data or source code. If the Client wishes us to provide him with open files and data or source code, this must be agreed in writing and paid for separately.
3. Cooperation obligations of the client / releases
3.1 The Client shall provide us with all data and documents required for the performance of our services at its own expense and risk. Data and files shall be provided to us in the following formats:
- Texts: (Word documents, .rtf or .txt)
- Pictures, graphics (incl. logos): (.jpg, .png, .tif, .eps, .svg)
- Videos: (.mp4)
Data and data carriers provided by the Customer must be free of viruses, Trojans and other malware; otherwise the Customer shall be obliged to compensate us for any resulting damage.
3.2 The client assures that he is entitled to use all templates provided to us and that these templates are free of third party rights. If, contrary to this assurance, he is not entitled to use them or if the templates are not free of third-party rights, the Client shall indemnify us internally against all third-party claims for compensation. The obligation to indemnify shall not apply if the Client proves that he is not at fault.
3.3 The client must keep backup copies of all data made available to us.
3.4 If the Customer fails to perform a required act of cooperation, we may set a reasonable deadline for the Customer to perform the act with the declaration that we will terminate the contract if the act of cooperation is not performed by the end of the deadline. Our claim for compensation in accordance with § 642 BGB shall remain unaffected by this. If we request releases from the customer for service components, concepts, design drafts, functional descriptions or decisions on the technical or organizational procedure, the customer shall notify us of any objection(s) in text form within a period of 14 days after the release request has been made available. We shall be entitled to perform the services as proposed by us if the Customer has not notified us of any specific objections within the period. We will inform the customer of this separately.
4.1 Delivery dates shall only be binding if they have been expressly confirmed by us in writing.
4.2 Agreed delivery times can only be met if the Customer has fulfilled its obligations (e.g. timely payment of an agreed down payment, complete submission of any documents to be provided, etc.). In the event of subsequent requests for changes or additions by the customer, the delivery period shall be extended accordingly. If we fail to meet delivery dates, the customer shall set us a reasonable grace period in text form, which shall commence upon receipt of the grace period by us. The customer shall only be entitled to withdraw from the contract after the fruitless expiry of the grace period.
4.3 Withdrawal by the Customer from the entire contract due to partial default or partial impossibility shall only be permissible if the partial performance already rendered is demonstrably of no interest to the Customer.
4.4 Even in the case of agreed deadlines and dates, we shall not be responsible for delays in delivery and performance due to force majeure. Force majeure shall be deemed to include, in particular, war, riots, interventions by higher authorities, measures within the scope of industrial disputes, strikes or lockouts, shortages of raw materials or energy as well as unavoidable operational or transport disruptions such as, for example, disruptions in the external data network including house connection at network operators, Internet access and/or service providers, power failure, fire, water ingress or weather conditions affecting transport. This shall also apply if the aforementioned conditions occur with our upstream suppliers or if we are not supplied by them through no fault of our own despite corresponding contracts which would have covered the requirements arising from the agreement with the customer. In this case, we shall be entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
4.5 We shall be entitled to make partial deliveries and render partial services at any time, provided that this is reasonable for the Customer.
5. External services
5.1 We shall be entitled to use third parties as subcontractors to fulfill our contractual obligations.
5.2 Insofar as contracts for third-party services are concluded in our name and for our account for the purpose of fulfilling the order, we shall charge the costs to the Principal. The customer shall indemnify us internally against all liabilities arising therefrom.
5.3 For orders placed with third parties in the name of and for the account of the Principal, we shall not assume any liability or responsibility towards the Principal for defects in the work, unless we are at fault for the selection. In these cases, we act merely as an intermediary. If we ourselves are the client of subcontractors, we hereby assign to the client all claims to which we are entitled for defects in the work, claims for damages and other claims arising from defective, delayed or non-delivery. The customer is obligated to first attempt to enforce the assigned claims against the subcontractor before making a claim against us.
6. Remuneration, payment and default in payment
6.1 The scope of the remuneration owed shall be based on our offer accepted by the Principal. Planning, drafting, design and concept services shall include two correction loops unless otherwise stated in the offer.
6.2 If remuneration has been agreed on a time and material basis, we will invoice for the time spent on a monthly basis at the end of each month. A monthly lump-sum payment shall be based on the hourly quota specified in the offer accepted by the Client. Hours which are not called up/performed from this quota cannot be carried over by the Client to the next month.
6.3 The Client shall bear the travel expenses incurred in connection with the provision of the services owed under this contract. We shall agree the travel expenses with the Client in advance. We shall settle these monthly at the end of each month.
6.4 The remuneration due to us shall be payable without deduction within 14 days of invoicing.
6.5 All prices are net prices and do not include the respective statutory value added tax.
7. Acceptance and deemed acceptance
7.1 In the case of contracts for work and services, the Customer shall be obliged to accept the work. In the event of significant deviations from the work owed, we shall remedy these within a reasonable period and resubmit the work for acceptance.
7.2 If we notify the Customer in text form of the completion of a work performance and the Customer does not report any more than insignificant defects within a period of 4 weeks after notification of completion, the work performance shall be deemed accepted. Acceptance shall be deemed to have taken place at the latest upon unconditional payment or use of the work.
8. Material defects and defects of title
8.1 Any defects that may occur shall be documented by the customer in a manner that is comprehensible to us and shall be reported to us in writing and without delay after their discovery.
8.2 We shall be entitled to remedy the defect within a reasonable period of time either by repair or by new delivery, at our discretion, depending on the severity of the defect. The customer may demand a new delivery or rectification of the defect within a reasonable period of time if the respective other form of supplementary performance is unreasonable for him.
8.3 If it turns out that a defect reported by the Customer does not actually exist, we shall be entitled to charge the Customer accordingly for the expenses incurred in connection with the analysis and other processing, insofar as the defect is one which the Customer could have recognized as originating from its sphere of influence.
8.4 The right to withdraw from the contract and to claim damages in lieu of the entire performance shall only exist in the event of significant defects.
8.5 Claims for material defects and defects of title shall become time-barred one year after acceptance. This shall not apply in the case of fraudulent intent on our part or in the case of the provision of a guarantee.
9. Faultlessness of software
The configuration of the hardware or software as well as the particularities of individual interfaces of third parties lead to the fact that software does not always function error-free. We cannot assume liability for error sources caused by third parties. Therefore, software is considered to be error-free if it functions according to the agreed specification on the EDP system used by us. For the acceptance the complete system has to be provided fully functional on the defined staging system.
10. Rights of Use, References
10.1 The granting of rights of use does not require that the work enjoys legal protection, for example, under copyright, design, trademark or patent law or the law against unfair competition. We shall only transfer the rights of use that are required for use by the Client in accordance with the contract.
10.2 The granting of rights of use and exploitation shall be dependent on full payment of our claims. If we permit or tolerate the use of the service(s) rendered by the Client prior to payment in full, and if the Client defaults on payment of the remuneration, the Client undertakes to cease use of the service(s) immediately upon our request and to refrain from their exploitation (reproduction, dissemination, making available to the public, editing, modification) immediately upon our request.
10.3 We shall transfer the rights of use to released and paid work results of subcontractors (freelancers or similar) or other third parties, for example photographs, illustrations, music, as well as the ancillary copyrights of third parties, for example actors, speakers, to the Client to the extent necessary for the contractual use by the Client and as remunerated by the Client in accordance with our offer. If, in individual cases, these rights are limited in terms of time, space, content and with regard to certain types of use or advertising media and the transfer is therefore not possible to the aforementioned extent, we shall inform the Client of this and proceed in accordance with the Client's further instructions; any additional costs incurred as a result shall be borne by the Client.
10.4 The services delivered by us shall remain our property until full payment of all claims arising from an order.
10.5 Insofar as the Client does not accept design proposals presented by us, the copyright rights of use to the design proposals shall remain with us. The same shall apply to the ownership of the relevant templates.
10.6 The inclusion of the work results in our self-presentation (online, print, offline) is permitted within the scope of the usual presentations (e.g. on a website, in presentations, annual reports, press releases, other publications of any kind or through participation in competitions or tenders). Furthermore, we are allowed to name the client as a reference in our self-portrayal and to use the client's logo for this purpose.
11. Retention, set-off
11.1 The client may not assert any right of retention against us from other orders.
11.2 The Customer shall only be entitled to set-off if its own claim is legally binding or acknowledged or if it entitles it to refuse performance.
11.3 These restrictions shall not apply to any additional costs of completion and/or rectification of defects to which the Customer is entitled against us.
We shall be liable without limitation in the event of injury to body, life and health as well as in the event of intent and gross negligence. In the event of a breach of material contractual obligations and in the event of impossibility, we shall also be liable in the event of slight negligence, but then limited to compensation for the foreseeable damage typical for the contract. Otherwise, we shall not be liable in the event of slight negligence. Essential contractual obligations (cardinal obligations) are contractual obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which the customer regularly relies and may also rely. Typical, foreseeable damages are those which are subject to the protective purpose of the contractual norm violated in each case. Excluded from this are claims arising from injury to life, body or health if we are responsible for the breach of duty and other damages based on an intentional or grossly negligent breach of duty by us. The above limitations of liability shall also apply to our vicarious agents and persons employed in performing an obligation, insofar as claims are also made against them personally.
13. Final provisions
Place of performance is Berlin. If the customer is a fully qualified merchant, a legal entity under public law or a special fund under public law, our place of business shall be agreed as the place of jurisdiction for both parties for any disputes arising from the contract and any legal relations in connection therewith. Unless otherwise agreed, German law shall also apply to contractual relationships with foreign clients. The application of the Uniform UN Sales Convention, the Uniform Law on the International Sale of Goods (EKG) and the Uniform Law on the Conclusion of Contracts for the International Sale of Goods (EKAG) is excluded.
If these Terms and Conditions are translated into any other language the German language version shall prevail.
Updated at: September 2021