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.