General terms and conditions

of
Fiebak Medien – Agentur für digitale Lösungen
Sebastian Fiebak
Arnold-Sommerfeld-Ring 2
52499 Baesweiler

– hereinafter: Fiebak Medien –

  1. General
    1. These general terms and conditions (GTC) apply to all contracts concluded between Fiebak Medien and the customer.
    2. Fiebak Medien offers the customer, among other things, services in the field of website and software creation and development (including service and maintenance). The specific scope of service is part of individual agreements between Fiebak Medien and the customer.
    3. Fiebak Medien does not conclude any contracts with consumers or private individuals.
    4. Fiebak Medien is entitled to subcontract the necessary services in its own name and on its own account to subcontractors, who in turn may also use subcontractors. Fiebak Medien shall remain the customer’s sole contractual partner in this respect. Subcontractors shall not be used if it is obvious to Fiebak Medien that their use is contrary to the legitimate interests of the customer.
    5. The contracting parties undertake to each name a contact person who will accompany the respective order and who is authorized to issue legally binding declarations of intent.
    6. Fiebak Medien does not accept any terms and conditions used by the customer that differ from these terms and conditions – subject to express consent.
  1. Customer’s duties to cooperate
    1. If the customer provides Fiebak Medien with texts, images or other content, he must ensure that this content does not violate the rights of third parties (e.g. copyrights) or other legal norms. In this context, it should be noted that Fiebak Medien is not entitled by law to provide legal advice to the customer. In particular, Fiebak Medien is not obliged and legally not in a position to check the business model of the customer and / or the works (layouts, texts, graphics, etc.) created or acquired by the customer itself for their compatibility with the applicable law. In particular, Fiebak Medien will not conduct any trademark researches or other property right collision checks with regard to the works provided by the customer. Insofar as the customer issues certain instructions with regard to the work to be produced, he shall be liable for this himself.
    2. The customer is obliged to provide complete and correct information, data, works (e.g. the data for the imprint, graphics, etc.) and accesses provided by him for the purpose of fulfilling the order. He shall also ensure that the instructions he issues are in compliance with applicable law.
    3. The customer is responsible for the procurement of the material for the design of the website (e.g. graphics, videos) and provides this to Fiebak Medien in time. If the customer does not provide this and does not make any further specifications, Fiebak Medien may, at its own discretion, use image material of common providers (e.g. stock photo service providers) or provide the relevant parts of the website with a placeholder, in compliance with the copyright labelling requirements.
    4. Insofar as the conclusion of a contract processing agreement pursuant to article 28 GDPR is required for individual contract components, both contracting parties undertake to conclude such an agreement – to be provided by Fiebak Medien – prior to the commencement of the provision of services.
    5. Für Verzögerungen und Verspätungen bei der Umsetzung von Projekten, die durch eine verspätete (notwendige) Mit- bzw. Zuarbeit des Kunden entstehen, ist Fiebak Medien gegenüber dem Kunden in keinerlei Hinsicht verantwortlich.
    6. If the customer fails to comply with his obligations under this clause, Fiebak Medien may charge the customer for any additional expenses (e.g. costs for stock photos and time spent searching for them).
  1. Website creation with the help of agile methods
    1. If no individual agreements have been made, the website creation is based on agile methods. The subject of website creation contracts between Fiebak Medien and the client is basically the development of new websites or the extension of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the client’s technical and / or design specifications. Website creation contracts concluded between the parties are contracts for work and services according to §§ 631 et seq. BGB.
    2. The services agreed upon in detail result from the contract concluded individually between Fiebak Medien and the customer. For this purpose, the customer first submits an inquiry to Fiebak Medien with a description as precise as possible of the website content desired by him (creative content such as images, layouts, logos, etc. are to be determined and provided by the customer). This request constitutes an invitation to submit an offer by Fiebak Medien. Fiebak Medien will examine the customer’s ideas described in the inquiry to the best of its knowledge and belief as to completeness, suitability, unambiguity, feasibility and freedom from contradictions and will prepare an offer based on the wishes arising from the customer’s inquiry. Only by the acceptance of the offer by the customer a contract between Fiebak Medien and the customer is concluded.
    3. The customer can access the development side at any time and introduce customer requests, as far as these are covered by the originally agreed scope of services. Such adjustments shall become part of the original contract if both contracting parties agree in text form (i.e. e.g. by email, fax, or similar). Apart from that, Fiebak Medien is only obliged to produce the functions / positions listed in the contract or to provide the agreed service (e.g. maintenance).
      Any services above and beyond this must be agreed and remunerated separately.
    4. The offer of Fiebak Medien usually contains a “sample page” or an “online design proposal“, the format and contents of which are selected by Fiebak Medien at its own discretion; there is no claim to specific design elements or functions. If an agreement based on the “sample page” or the “online design proposal” is not possible, no contract shall be concluded; in this case the potential customer shall have no claim to the surrender of the “sample page” or the “online design proposal” or the associated source codes, copies or the like. Any copies remaining with the customer shall be deleted or surrendered to Fiebak Medien.
    5. Once the website is completed, Fiebak Medien will ask the customer to accept the website.
    6. A prerequisite for the activity of Fiebak Medien is that the customer provides Fiebak Medien with all data required for the implementation of the project (texts, templates, graphics, etc.) in a complete and suitable form before the start of the order. If the customer fails to comply with this obligation, Fiebak Medien may charge the customer for the time spent on this.
    7. After completion and acceptance of the website and / or individual parts thereof, the customer shall receive from Fiebak Medien – if available and agreed upon in an individual contract – immediately by email all graphics, source codes, if applicable documentation and / or manuals of (third party) modules used as well as development documentation, if applicable.
    8. The remuneration for the website creation is part of an individual contractual agreement between the parties. In all other respects, the statutory provisions shall apply.
  1. Web hosting and domain registration
    1. Fiebak Medien also offers hosting and domain registration services to the customer – in particular as an additional option within the scope of website creation. The specific scope of services (domain registration, storage space, certificates, etc.) is part of individual agreements between the parties. Fiebak Medien is entitled to use third parties in any form in connection with the execution of hosting services.
    2. Unless otherwise agreed, Fiebak Medien will take over the administration and management of the data in case of an assignment as hoster. In principle, the customer does not get access to the administration backend of the hosting system.
    3. The availability of the servers used by Fiebak Medien for hosting purposes is at least 99% on an annual average. Excluded from this are those times during which the servers are not accessible due to events beyond the control of Fiebak Medien (force majeure, actions of third parties, technical problems, etc.).
    4. Unless otherwise agreed, the customer shall not be entitled to the assignment of a fixed IP address for his internet presence. Technical or legal changes are possible at any time and are reserved.
    5. The customer is obliged not to disclose his passwords and other access data – insofar as such have been provided to him by Fiebak Medien – to third parties and to change them regularly. The customer is responsible for any misuse by third parties insofar as he is responsible for this.
    6. The customer is obliged to make regular backups of his hosted data. If the customer is not able to do so, he shall commission Fiebak Medien or other third parties professionally suitable for this purpose to make backups. The customer is liable for any data loss that occurs due to insufficient data backup.
    7. If the customer makes use of domain registration services of Fiebak Medien, the following shall apply in addition:
      1. The contractual relationship required for the registration of the respective domain is established directly between the customer and the respective domain issuing authority or the respective registrar. Fiebak Medien acts only as an intermediary in the relationship between the customer and the registry, without having any influence on the allocation of the domain.
      2. The customer bears full responsibility for ensuring that the domain he wishes to use does not infringe the rights of third parties. A verification of the domain is not owed.
      3. For the registration of domains, the respective terms and conditions of the individual registries apply in addition. Fiebak Medien will point out any special features to the customer in case of intended registration.
  1. Print
    1. The subject of design contracts in the print sector (e.g. creation of print products or corporate designs) between Fiebak Medien and the customer is basically the development of the customer’s design specifications for print products (e.g. design of banners, post graphics, posters, flyers, vehicle or window stickers, textiles or logo designs). Design contracts concluded between the parties are contracts for work and services within the meaning of §§ 631 et seq. BGB. A deviating scope of services can be agreed between the parties in an individual contract.
    2. The services agreed upon in detail result from the contract concluded individually between Fiebak Medien and the customer. To this end, the customer first submits an inquiry to Fiebak Medien with as precise a description as possible of the design services he requires. This request constitutes an invitation to submit an offer by Fiebak Medien. Fiebak Medien will examine the customer’s ideas described in the inquiry to the best of its knowledge and belief as to completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), unambiguity, feasibility and freedom from contradiction and will prepare an offer based on the wishes arising from the customer’s inquiry. Only by the acceptance of the offer by the customer a contract between Fiebak Medien and the customer is concluded.
    3. After the contract has been signed, the customer’s requirements are discussed in a further briefing, if necessary, and the specifications are specified in more detail. At this point, customer requests can be introduced, provided they are covered by the originally agreed scope of services. If necessary, there is the possibility of a rebriefing before the production of the object of performance. Adjustments become part of the original contract if both parties agree in text form. Apart from that, Fiebak Medien is only obliged to produce the items listed in the contract. Any services above and beyond this must be agreed and remunerated separately.
    4. As soon as the agreed object of performance has been completed, Fiebak Medien will request the customer to accept the work.
    5. Unless otherwise agreed, the customer is entitled to two correction loops. Complaints regarding the artistic design are generally excluded. If the customer wishes further changes, he has to bear the additional costs.
    6. A prerequisite for Fiebak Medien’s activities is that the client provides Fiebak Medien with all data required for the implementation of the project (texts, templates, graphics, etc.) in full and in a suitable form before the start of the order. Für Verzögerungen und Verspätungen bei der Umsetzung von Projekten, die durch eine verspätete (notwendige) Mit- bzw. Zuarbeit des Kunden entstehen, ist Fiebak Medien gegenüber dem Kunden in keinerlei Hinsicht verantwortlich. If the customer fails to comply with this obligation, Fiebak Medien may charge the customer for the time spent on this.
    7. The remuneration is part of an individual contractual agreement between the parties. In all other respects, the statutory provisions shall apply.
    8. Unless otherwise contractually agreed and not to be expected otherwise from the purpose of the contract, Fiebak Medien owes only the delivery of a print file (e.g. PDF, JPF or PNG) for the creation of print products in addition to the contractually agreed service items. The customer does not have the right to receive an editable file (e.g. Word).
  1. Video and photography
    1. Fiebak Medien creates professional videos and photographs for its clients. The services agreed upon in detail result from the contract concluded individually between Fiebak Medien and the customer. To this end, the customer first submits an inquiry to Fiebak Medien with as precise a description as possible of the services he requires. This request constitutes an invitation to submit an offer by Fiebak Medien. Fiebak Medien will check the Customer’s ideas described in the inquiry to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), unambiguity, feasibility and freedom from contradiction and will prepare an offer on the basis of the wishes arising from the Customer’s inquiry. Only by the acceptance of the offer by the customer a contract between Fiebak Medien and the customer is concluded.
    2. The customer’s specifications are taken into account to the best of our knowledge and belief. The contracting parties acknowledge that the creation of videos and photographs is a creative performance that requires a high degree of artistic freedom. Fiebak Medien therefore exclusively owes the creation of a work which, according to its own experience and assessment, corresponds to the wishes of the customer. Complaints regarding the artistic design are generally excluded.
    3. If the customer wishes further changes, he has to bear the additional costs.
    4. If the customer provides people for the creation of the video or photographs (e.g. his employees or professional models), he is solely responsible for ensuring that the people concerned have consented to the use of the images. In particular, he is responsible for concluding appropriate model release contracts and obtaining GDPR-compliant employee commitments.
    5. The contractual partner shall be in default of acceptance if he fails to accept the service at the agreed time and place or if the photographer’s performance of the service is delayed or rendered impossible. In this case, the photographer is authorized to withdraw from the contract or to insist on the fulfillment of the contract after a reasonable grace period of 14 days. If the contractual partner continues to violate essential obligations arising from the contract (obligations to cooperate, payment of the deposit or partial payments) despite a written warning and a grace period of 14 days, the photographer shall be entitled to withdraw from the contract. The contractual partner must compensate the photographer for any damage culpably caused by him.
    6. If there is a delay in acceptance the contractual partner shall bear any storage costs incurred as well as the costs for the unsuccessful delivery and collection. If he is at fault for the delay in acceptance he must also compensate the photographer for the damage caused by the delay. As far as the risk of storage is concerned the contractual partner is responsible here as well.
    7. In the event of a change of date (for example, due to weather conditions), a fee corresponding to the time spent or reserved in vain and all ancillary costs must be paid.
    8. As soon as the agreed object of performance has been completed, Fiebak Medien will request the customer to accept the work.
    9. Fiebak Medien may require that a suitable copyright notice will be placed in an appropriate location on the works created.
  1. SEO marketing and SEA campaigns
    1. Fiebak Medien offers the customer, among other things, services in the field of SEO marketing. Within the scope of the provision of services, Fiebak Medien shall exclusively owe the implementation of measures which, according to Fiebak Medien’s own experience, can positively influence the search engine ranking or which are expressly ordered by the client. This is a service within the meaning of §§ 611 ff. BGB. A specific result (e.g. sales figures), on the other hand, is only owed within the scope of SEO services if this has been expressly assured. Marketing services may be canceled by either contracting party with one (1) month’s notice.
    2. Fiebak Medien also offers the customer services in the field of SEA campaigns. Within the scope of the service provision, Fiebak Medien owes exclusively the submission of proposals regarding keywords with advertising effect and, after approval by the customer, the implementation of the measure (placement of advertisements). These are services according to §§ 611 ff. BGB. A specific result (e.g. a specific ranking in the Google hit list) is not owed within the scope of SEA services, unless this has been expressly assured. In addition to the claim to renumeration for the service, Fiebak Medien shall have a claim against the customer for reimbursement of expenses with regard to the advertisements to a charge. Fiebak Medien is not obliged to check the legality of keywords. Fiebak Medien makes suggestions to the customer regarding the booking of keywords. The legal examination, in particular with regard to the trademark rights of third parties and the release of the keywords, is the responsibility of the customer before the campaign is carried out.
  1. Prices and renumeration
    The remuneration for orders of all kinds is part of an individual contractual agreement between the parties and is generally based on the offer.
  1. Acceptance
    Insofar as a work performance has been agreed upon, Fiebak Medien may demand that the acceptance be made in writing; the written acceptance shall only be owed if Fiebak Medien requests the customer to do so. The acceptance provisions of the German Civil Code shall otherwise remain unaffected. The acceptance period according to § 640 section 2 page 1 BGB is set at 2 weeks from notification of completion of the work, unless in individual cases a longer acceptance period is required due to special circumstances which Fiebak Medien will notify the customer of separately in this case. If the customer does not comment within this period or does not refuse acceptance due to a defect the work shall be deemed accepted.
  1. Warranty for defects
    An insignificant defect shall not constitute grounds for claims based on defects. The choice of the type of subsequent performance lies with Fiebak Medien. The limitation period for defects and other claims shall be one (1) year; this reduction of the limitation period shall not apply to claims resulting from intent, gross negligence or injury to life, limb or health by Fiebak Medien. The limitation period shall not start again if a replacement delivery is made within the scope of liability for defects. In all other respects, the statutory warranty for defects shall remain unaffected.
  1. Contractual term for continuing obligations
    Subject to deviating provisions within and outside of these terms and conditions, continuing obligations (e.g. maintenance contracts) shall have a minimum term of 12 months. The notice period is 3 months. If the contract is not terminated in due time at the end of the term it is automatically extended for another 12 months. The right to extraordinary termination for good cause remains unaffected.
  1. Granting of rights, self-promotion and right of mention
    1. Fiebak Medien grants the customer – after after full payment of the order by the customer – in principle a simple right of use to the corresponding work results and / or the respective source codes at the time of their creation. Further rights can be agreed between the parties by means of an individual contractual agreement.
    2. Unless otherwise agreed, the customer expressly grants Fiebak Medien permission to present the project to the public in an appropriate manner for the purpose of self-promotion (references / portfolio). In particular, Fiebak Medien shall be entitled to advertise with the business relationship to the customer and to refer to itself as the author on all advertising material produced and in all advertising measures, without the customer being entitled to any remuneration for this.
    3. Furthermore, Fiebak Medien is entitled to place its own name with a link in an appropriate manner in the footer and in the imprint of the website(s) created by Fiebak Medien, without the client being entitled to any remuneration for this.
  1. Confidentiality
    Fiebak Medien will hold in strict confidence all business transactions coming to Fiebak Medien’s attention, including, not limited to, print materials, layouts, storyboards, figures, drawings, tapes, images, videos, DVDs, CD-ROMs, interactive products and such other materials containing films and / or radio plays and / or other copyrighted materials of the customer or its affiliates. Fiebak Medien undertakes to impose the obligation of secrecy on all employees and / or third parties (e.g. suppliers, graphic designers, programmers, film producers, sound studios, etc.) who have access to the aforementioned business transactions. The obligation to maintain secrecy shall apply indefinitely beyond the term of this agreement.
  1. Liability / indemnification
    1. The liability of Fiebak Medien for all damage is limited as follows: In case of a slightly negligent breach of an essential contractual obligation (“cardinal obligation”) Fiebak Medien’s liability shall in each case be limited to the amount of the damage foreseeable at the time of the conclusion of the contract and typical for the contract. Cardinal obligations are obligations the fulfillment of which makes the proper execution of the contract possible in the first place and on the fulfillment of which a party may regularly rely. This limitation of liability shall not apply in the event of gross negligence or intentional acts or in the event of mandatory statutory liability, in particular in the event of assumption of a guarantee or in the event of culpable injury to life, limb or health. The above liability provision shall also apply with regard to the Fiebak Medien’s liability for vicarious agents and legal representatives.
    2. The customer shall indemnify Fiebak Medien against any claims of third parties asserted against Fiebak Medien due to violations of these terms and conditions or of applicable law by the customer.
  1. Final provisions
    1. The contracts concluded between Fiebak Medien and the customers are subject to the substantive law of the Federal Republic of Germany excluding the UN convention on contracts for the international sale of goods.
    2. If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the parties agree that the place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of Fiebak Medien; exclusive places of jurisdiction shall remain unaffected.
    3. Fiebak Medien is entitled to amend these terms and conditions for factually justified reasons (e.g. changes in jurisdiction, legal situation, market conditions or business or corporate strategy) and subject to a reasonable period of notice. Existing customers will be notified of this by email no later than two weeks before the change takes effect. If the existing customer does not object within the period set in the notice of change, his consent to the change shall be deemed to have been given. In case of objection Fiebak Medien is entitled to terminate the contract extraordinarily as of the effective date of the change. The notification of the intended amendment to these terms of use will indicate the deadline and the consequences of the objection or its absence.

Status: September 2020