Tos

GENERAL TERMS AND CONDITIONS IN THE COMMERCIAL ENVIRONMENT

by Michael Schmitt Ltd., 27 Old Gloucester Street, London, WC1N 3AX, UK

– hereinafter referred to as “Michael Schmitt Ltd.

1 Conclusion of contract

1.1 For contracts with Michael Schmitt Ltd. only these terms and conditions apply. Deviating regulations in the general terms and conditions of the customer are therefore expressly contradicted.

1.2 Offers made by Michael Schmitt Ltd. in brochures, advertisements etc. are – also with regard to prices – subject to change and non-binding, unless a binding assurance is expressly given.

1.3 Michael Schmitt Ltd. carefully researches and calculates for her work. This sometimes takes some time. The customer is therefore bound to his order for 14 days. If Michael Schmitt Ltd. does not reject the acceptance within seven days after receipt of the order, the confirmation is considered to be given.

1.4 Oral collateral agreements are invalid. Changes to the conditions must be made in writing.

1.5 Compliance with a performance deadline depends on timely delivery to us.

2 Scope of services

2.1 Michael Schmitt Ltd. offers the following services:

– Creation, adaptation and maintenance of website

– Setup and maintenance of content management systems (CMS)

– Website Optimization (SEO)

– Hosting

– other graphic services

– Consulting in usability and accessibility

– Trainings

2.2 Michael Schmitt Ltd. provides its services according to the wishes and specifications of the customer. Installation, configuration, instruction and training are only part of their service obligations if this has been agreed. Michael Schmitt Ltd. only has to consider change and extension requests if they are necessary for technical reasons in order to achieve the purpose of the contract.

2.3 Insofar as Michael Schmitt Ltd. provides additional services and performances outside the contractual agreement free of charge, these can be discontinued at any time. A claim for reduction or compensation by the customer or a right of termination does not result from this.

2.4 In the event of a significant change in the contractual obligations of Michael Schmitt Ltd. for the purpose of adapting them to the interests of the customer, Michael Schmitt Ltd. may charge the customer for the additional work required. This also applies to an extensive examination of whether and under what conditions the change or extension is feasible, provided Michael Schmitt Ltd. has pointed this out in writing.

2.5 Michael Schmitt Ltd. is entitled to make partial deliveries as long as these are not unreasonable for the customer.

2.6 Michael Schmitt Ltd. is entitled to change, reduce or supplement the range of services resulting from the contract as well as to cancel access to individual services if and to the extent that the fulfilment of the purpose of the contract concluded with the customer is not or not significantly impaired. The customers are to be informed about this in good time.

2.7 The customer is advised that the operation of a website is accompanied by legal obligations, the non-observance of which may result in civil and criminal consequences. These are in particular:

– the imprint obligation (provider identification) according to § 5 TMG
– Duty to inform according to § 312c BGB (distance contracts)

– Information duties according to § 312e BGB (electronic business transactions)

– Obligations to check for links

– Obligations to check the contents of forum discussions, blogs and chat rooms

– Obligation to observe media law regulations

– Obligation to respect the copyright and trademark rights of third parties (see also rights of use)

2.8 The customer alone is responsible for compliance with these obligations. Should Michael Schmitt Ltd. suffer damages because the customer violates the above mentioned obligations, Michael Schmitt Ltd. is entitled to claim damages.

2.9 Michael Schmitt Ltd. offers its services 24 hours a day, 7 days a week. Necessary service interruptions for preventive maintenance work are announced as early as possible. Michael Schmitt Ltd. will eliminate malfunctions of the technical equipment as quickly as possible within the scope of the existing technical and operational possibilities.

3 Prices and payment

3.1 The list prices at the time of delivery or shipment shall apply. Fixed prices shall only apply if the price agreement in an individual case, e.g. on the basis of an offer, contains neither the possibility of a price increase nor a time limit for the fixed price agreement.

3.2 The prices do not include the legal sales tax, as this is not charged (gross-net invoices). In accordance with paragraphs 1 and 3 of the English Value Added Tax Act 1994, no value added tax is included in the invoice amount shown. Shipping costs, installation, training and other additional services are not included in the price, unless otherwise agreed.

3.3 Additional services that are not included in the price list or the offer shall be remunerated separately. This applies in particular to additional expenditure as a result of

– the presentation of data in non-digitised form

– of necessary and reasonable use of services of third parties

– of expenses for license management

– commissioned testing, research and legal review services

– services provided outside business hours

3.4 If the customer is in default of payment, he must reckon with default interest of 8% above the base rate. The interest on arrears shall accrue even without a reminder if the payment period is exceeded.

3.5 The customer must expect that Michael Schmitt Ltd. will initially credit payments against older debts. If costs of legal action such as reminder costs have already been incurred, Michael Schmitt Ltd. can credit payments made by the customer first against these costs, then against the interest and finally against the main service.

3.6 Michael Schmitt Ltd. is entitled to demand an advance payment of half of the total order value for web design or programming services.

3.7 The customer can only offset against the claims of Michael Schmitt Ltd. with undisputed or legally established claims. The customer is only entitled to the assertion of a right of retention because of such counterclaims that result from the same contractual relationship as those claims that are countered by the right of retention.

3.8 If a disruption of the Michael Schmitt Ltd. services, which is considerable, lasts longer than one week and if an actual downtime period of more than one working day is reached, the customer is entitled to reduce the monthly fees and charges accordingly from the time of the occurrence until the removal of the disruption. A significant impediment exists if

– the customer is no longer able to access the Michael Schmitt Ltd. infrastructure for reasons for which the customer or third parties are not responsible, and therefore can no longer use the services listed in the contract and

– the use of these services as a whole is made considerably more difficult or the use of individual services listed in the contract becomes impossible or comparable restrictions exist.

3.9 In the event of a failure of services due to a disturbance outside the area of responsibility of Michael Schmitt Ltd. The same applies to the failure of services due to necessary interruptions of operation according to 10 of the AGB.

4 Dates, deadlines and obstacles to performance

4.1 Delivery dates or periods, which can be agreed upon binding or non-binding, must be in writing.

4.2 If the cooperation of the customer is necessary or agreed upon for the service of Michael Schmitt Ltd., the delivery time is extended by the time the customer has not fulfilled this obligation.

4.3 In case of delays due to

– Changes in the requirements of the customer

– insufficient requirements in the application environment (hardware or software deficits), as far as they were not known or should not have been known to Michael Schmitt Ltd.
– Problems with third-party products (e.g. software from other computer manufacturers)

the delivery or service date shall be extended accordingly.

4.4 If Michael Schmitt Ltd. is unable to provide its contractual services or cannot provide them on time as a result of industrial action, force majeure or other circumstances that are unavoidable for it, Michael Schmitt Ltd. shall not suffer any adverse legal consequences.

4.5 If the customer orders changes or additions that are not only minor in scope, dates and deadlines that are based on the original subject matter of the contract shall lose their validity.

5 Approval

5.1 The customer will accept the services of Michael Schmitt Ltd. immediately as soon as Michael Schmitt Ltd. announces the readiness for acceptance.

5.2 The services of Michael Schmitt Ltd. are deemed to have been accepted if the company has notified the readiness for acceptance, pointing out the significance of the omission of the acceptance declaration

– and the customer thereupon does not declare acceptance or refuse acceptance, stating defects to be detailed to the best of his ability, within a period of time which allows him to detect substantial defects during the required careful inspection, but at the latest after 20 working days,

– or the customer places the website or parts of it on the Internet accessible to third parties without further examination or commissions Michael Schmitt Ltd. to do so, unless the non-acceptance is not due to a significant defect in the services provided by Michael Schmitt Ltd.

5.3 If readiness for acceptance is not notified, the time at which the customer should reasonably have become aware of the services shall apply instead of the time of notification.

6 Duty to cooperate

6.1 The customer shall provide necessary data, especially contents to be entered for the websites in a timely manner and in digital form.

6.2 Insofar as Michael Schmitt Ltd. provides the customer with drafts and/or test versions, specifying a reasonable period of time for checking their correctness and completeness, the drafts and/or test versions are deemed to have been approved upon expiry of this period, unless Michael Schmitt Ltd. receives a request for correction.

6.3 The customer is responsible for sufficient resources and information within the scope of his duty to cooperate. He shall ensure the availability of the required number of competent employees from a professional and IT point of view and sufficient computer capacities such as memory, processor power and line capacities.

6.4 If Michael Schmitt Ltd. deems it necessary, the customer shall provide a test environment (hardware with current software status, in particular the operating system and server software corresponding to the later conditions of use).

6.5 As soon as errors or impairments of the functionality of the services of Michael Schmitt Ltd. occur, such as e.g. a website, the customer shall immediately inform Michael Schmitt Ltd. of this, stating the time and error specification as well as the name and telecommunication data (telephone, e-mail) of the reporting and responsible employee.

6.6 The customer is responsible for the trouble-free operation of the equipment for remote maintenance and servicing, especially stable data lines and interfaces.

6.7 The customer is obliged to use the services of Michael Schmitt Ltd. in a proper manner. In particular he is obliged to,

1. 1. a) to inform Michael Schmitt Ltd. immediately of any changes in the contractual basis;

• b) not to misuse the access possibilities to the Michael Schmitt Ltd. services and to refrain from legal and/or illegal actions In particular, the customer is forbidden

– to use the services of other participants of the Michael Schmitt Ltd. services without authorization,

– to use services not agreed upon in the contract between Michael Schmitt Ltd. and the customer without authorization,

– read or change passwords, e-mails, files or similar of other participants of the Michael Schmitt Ltd. services or the system operator to decrypt,

– to distribute individual applications of licensed application software via the Michael Schmitt Ltd. services without authorization,

– to interrupt or block communication services, e.g. by overloading, insofar as the customer is responsible for this,

– to disseminate or make available criminal contents of any kind via services of Michael Schmitt Ltd.,

– This applies in particular to pornographic content that glorifies violence or content that is directed against the free democratic basic order or the idea of international understanding, as well as to propaganda material and symbols of unconstitutional parties and associations or their substitute organisations,

– to obtain pornographic content for himself or herself or for third parties that involves the sexual abuse of children.

– In the event of a breach of contract (in particular against the above-mentioned points) the customer shall reimburse Michael Schmitt Ltd. for any material and personnel expenses incurred as well as for any out-of-pocket expenses.

• c) to ensure the fulfilment of legal regulations and official requirements, insofar as these are or will be relevant for participation in the Michael Schmitt Ltd. network;

• d) to take into account the applicable provisions of data protection and the recognised principles of data security and to comply with them;

• e) to notify Michael Schmitt Ltd. immediately of any recognisable defects or damage (fault reports) and to take all measures which enable the defects or damage and their causes to be determined or which facilitate and accelerate the elimination of the fault;

• f) to reimburse Michael Schmitt Ltd. for the expenses incurred by the inspection of his equipment after a fault report has been submitted, if and insofar as the inspection reveals that a fault was within the customer’s area of responsibility (outside the defined scope of the contract and services).

• g) If the customer violates the above-mentioned obligations, Michael Schmitt Ltd. is entitled to terminate the contractual relationship without notice and, if necessary, to block access to the services resulting from the scope of services immediately and in other cases after unsuccessful warning.

• h) Details of the interaction between the users can be agreed upon in partnership by means of a user regulation.

7 Rights of use

7.1 Michael Schmitt Ltd. grants the customer a simple [exclusive / with the exception of Michael Schmitt Ltd. exclusive] and [non-] transferable right of use. If Michael Schmitt Ltd. provides services for the design of the customer’s internet presence, the purpose of use of the website and/or its components is limited to use on the internet. The customer acquires this right upon full payment of the services of Michael Schmitt Ltd.

7.2 Upon request, the customer is obliged to provide Michael Schmitt Ltd. with written information about the scope of use.

7.3 Michael Schmitt Ltd. assumes when using the customer’s templates that these are not encumbered with the rights of third parties or that the customer has the right of use required for the order.

7.4 Michael Schmitt Ltd. also makes use of the rights of third parties (third-party licence material) for the website, which can only be transferred to the customer with restrictions – especially in terms of time. The limited transfer can, among other things, lead to the fact that third-party licence material is no longer available or is available at significantly changed conditions over which Michael Schmitt Ltd. has no influence. In this case, Michael Schmitt Ltd. will make every effort to use similar material.

7.5 Michael Schmitt Ltd. may invoice the customer for the costs of third party licence material by presenting the licensor’s invoice with a service charge of 5 €. Any further identification of components of the website encumbered with third-party rights will not be made.

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7.6 The customer may only use third-party license material in connection with and within the scope of the website. If a claim is made against Michael Schmitt Ltd. by the licenser because the third-party licence material was not used accordingly, the customer is liable to compensate Michael Schmitt Ltd. for any resulting damage.

7.7 The customer is obliged to inform Michael Schmitt Ltd. about any unlawful use of the licence material that becomes known to him, as well as to take legal action against an infringer of industrial property rights or to support Michael Schmitt Ltd. in doing so.

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7.8 If the customer becomes aware of violations of rights of use through the services of Michael Schmitt Ltd. e.g. through warnings from third parties, he will inform Michael Schmitt Ltd. immediately.

7.9 A direct or immediate use of the Michael Schmitt Ltd. services by third parties is not permitted. The customer may not use the services for his own purposes, resell or sublet them. The customer must properly instruct third parties in the use of the services. The customer is responsible to Michael Schmitt Ltd. for the compliance with the contractual provisions by the third party in the same way as he himself would be responsible for their compliance.

7.10 The Customer shall also pay the fees that have arisen from the access and use of the services provided to him by third parties. The same applies in case of unauthorized use of the services by third parties, unless the customer proves that the unauthorized use was caused by circumvention or removal of the security measures of Michael Schmitt Ltd. without being responsible for this.

8 Copyright notices and references

8.1 The customer grants Michael Schmitt Ltd. the right to include the logo of Michael Schmitt Ltd. in the imprint of the customer’s website and to link it to the website of Michael Schmitt Ltd. The customer will adopt all protective notices such as copyright notices and other legal reservations unchanged. This applies in particular to the references to the originator in the program code.

8.2 The client agrees that Michael Schmitt Ltd. may display the graphics, websites etc. created for the client as a reference in his public galleries on the homepage if required or use them in other advertising material as proof of his work. A publication of the URL of the website edited by Michael Schmitt Ltd. is permitted. The client allows Michael Schmitt Ltd. to place a link to his own homepage in the footer as well as on the imprint page and the client is not entitled to remove it without the written consent of the web designer. Any infringement of the right to be named shall entitle the client to compensation. The amount of compensation is 50% of the agreed fee for the creation of the website. The right to claim higher damages upon proof remains unaffected.

9 Warranty

9.1 Defective deliveries or services will be repaired or replaced by Michael Schmitt Ltd. within the warranty period of 12 months, which begins with the date of delivery or acceptance, after appropriate notification by the customer. Michael Schmitt Ltd. will remedy the defects free of charge or provide the customer with a corrected release version (modified version that no longer contains the defect complained about) free of charge. Any additional expenses will be charged according to expenditure.

9.2 The customer shall immediately implement the measures to remedy the defects (e.g. install new releases) and in doing so observe the duties of notification (§ 6).

9.3 Under unfavorable circumstances, multiple corrections may be necessary. Defects are deviations of the created website elements from the agreed design and functionality, as far as these deviations affect the suitability for the agreed use.

9.4 Claims for defects do not exist if the defect is only insignificant, i.e. in particular if it does not have a significant effect on the agreed use.

9.5 If the subsequent performance fails within a period set by the customer for subsequent performance, the customer may demand the cancellation of the contract or a reduction of the purchase price.

9.6 Obvious defects that are easily noticeable to an average customer must be reported in writing by the customer to Michael Schmitt Ltd. within 10 working days of delivery. Defects that are not obvious must be reported to Michael Schmitt Ltd. within 10 working days after detection. Otherwise claims arising from these defects cannot be asserted. The defects, in particular the error messages that have occurred, are to be reproduced in detail to the best of our ability (e.g. through error logs).

10 Liability

10.1 Michael Schmitt Ltd. has unlimited liability for defects of title and guarantees. The liability according to the product liability law remains unaffected.

10.2 For intentional or grossly negligent breaches of duty Michael Schmitt Ltd. This also applies to legal representatives and vicarious agents of Michael Schmitt Ltd.

10.3 Michael Schmitt Ltd. and its vicarious agents are only liable for slight negligence within the scope of the violation of essential obligations (obligations whose violation endangers the achievement of the purpose of the contract) and for the violation of so-called cardinal obligations (obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies), but in each case only for the foreseeable damage typical for the contract. Michael Schmitt Ltd. is not liable for the slightly negligent violation of other obligations.

10.4 The above-mentioned limitations of liability do not apply in the event of injury to life, body or health, for a defect after the assumption of a guarantee for the quality of the product and for fraudulently concealed defects. The liability according to the product liability law remains unaffected.

10.5 The liability for loss of data is limited by the typical recovery effort. This is measured according to the damage that would have occurred if reasonable security measures had been taken (such as making backup copies).

10.6 Claims for damages due to delivery and service disruptions are excluded, as long as Michael Schmitt Ltd. is not responsible for them due to intent or gross negligence.

10.7 If the liability of Michael Schmitt Ltd. is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents.

10.8 The customer is liable for all consequences and disadvantages that arise for Michael Schmitt Ltd. or third parties due to the improper or illegal use of the Michael Schmitt Ltd. services or due to the customer not fulfilling his other obligations.

11 Obligation of the customer to backup data

The customer is obliged to protect himself adequately against data loss. Since the new installation of software, but also the modification of the installed software entails the risk of data loss, the customer is obliged to take precautions against data loss by means of comprehensive data protection before new installation or modification of the installed software.

12 Data protection and confidentiality

12.1 Michael Schmitt Ltd. stores the customer’s data (e.g. address and bank details) required in the context of the contract initiation and processing in electronic form.

12.2 Michael Schmitt Ltd. declares that its employees [freelancers, trainees, interns, etc.], who work within the scope of this contract, have been bound to data secrecy according to § 5 BDSG and that Michael Schmitt Ltd. has taken the technical and organizational measures required according to § 9 BDSG to ensure the execution of the regulations of the BDSG.

12.3 Connecting a network to the Internet creates the possibility of misuse of data. The customer must therefore protect sensitive data in particular from unauthorized access by means of his own security measures.

12.4 Both contracting parties shall treat confidentially marked information that they become aware of in the course of the contract. Software-related documents such as documentation and, above all, the source code must be protected against unauthorized access.

12.5 Michael Schmitt Ltd. points out that, according to the current state of the art, it is not possible to prevent the reproduction of works, in particular of graphics or other optical or acoustic design elements, which are placed online.

13 Termination

13.1 In the case of maintenance contracts, the customer may terminate the contract in an orderly manner at the earliest 12 months after conclusion of the contract. The contract is extended by 6 months in each case if it is not terminated in writing 3 months before the end of the contract.

13.2 The right to terminate for good cause remains unaffected. In particular in the case of a violation of § 7 and if the customer is in default with the payment of the remuneration by more than one month, Michael Schmitt Ltd. can terminate without notice.

14 Notifications

14.1 Insofar as the contracting parties communicate by e-mail, they acknowledge the unlimited validity of the declarations of intent transmitted in this way in accordance with the following provisions.

14.2 The e-mail must contain the name and e-mail address of the sender, the time of sending (date and time) and a reproduction of the name of the sender as the conclusion of the message.

14.3 Confidentiality cannot be guaranteed for data transmitted unencrypted over the Internet. At the request of the other party, each contracting party shall make available a coordinated encryption system, such as PGP, on its own site.

14.4 An e-mail received within the scope of the above provisions shall be deemed to have originated from the other partner, unless proven otherwise.

14.5 The binding nature of the e-mail and thus of the text form shall apply to all declarations that are made in the ordinary course of the contract. However, the text form is excluded in the case of a termination, measures for the initiation or execution of arbitration proceedings, as well as declarations that are expressly requested in writing by a contractual partner in deviation from this agreement.

15 Applicable law and place of performance

15.1 The contracting parties agree that English law shall apply to all legal relationships arising from this contractual relationship. English law shall also apply in cross-border transactions, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

15.2 The place of performance for all mutual services arising from the contract as well as the place of jurisdiction shall be the registered office of Michael Schmitt Ltd.