A. Subject matter of the contract
1. clicks digital GmbH – hereinafter referred to as clicks – provides services regarding the design and programming of websites and online shops.
2. The following General Terms and Conditions (GTC) apply exclusively to all contractual relationships between clicks and the client. Counter-confirmations by the client with reference to his own terms and conditions are hereby expressly opposed and will not be accepted. Deviations from these GTC are only effective if they are confirmed in writing by clicks.
B. Offer and conclusion of contract
1. Offers are subject to change and non-binding. Declarations of acceptance and orders by the client must be in written form; clicks must confirm these in writing or electronically to be effective.
2. Deliveries, services and offers shall be based on these GTC. Collateral agreements must be in writing.
3. The clients terms and conditions shall not become part of the contract, even if clicks does not expressly object to them and the contract is nevertheless executed.
4. clicks’ employees and/or agents cannot make any agreements that deviate from the service descriptions and tariffs or from these General Terms and Conditions.
C. Description of services
The included services are featured in the corresponding customer order.
D. Warranty and guarantee
1. clicks guarantees that the services can be used in accordance with the service description valid at the time the contract is concluded and that they essentially fulfil the functions described there.
2. clicks does not guarantee that third party services, in particular network services or other third party supplies are always available without interruption, error-free and secure.
3. Errors within the meaning of the warranty are exclusively reproducible errors whose cause lies in quality defects in the services provided by clicks. In particular, no defect is a functional impairment resulting from hardware defects, ambient conditions, incorrect operation, inadmissible or defective data, etc.
4. clicks can provide warranty by means of rectification of defects.
5. if the rectification of defects fails finally after three attempts despite a reasonable grace period set in writing, the client has the right to reduce the remuneration or to terminate the contract. Paragraph J applies to claims for damages. Other warranty claims are excluded.
6. the Principal must prove that he has notified clicks of defects in writing and that the defects are due to the services of clicks.
E. Copyright/copyright rights of use
1. clicks is entitled to all copyrighted rights of use of the pages and content created by it, unless expressly granted to the client by this contract.
2. clicks registers the pages in its own name, the client does not receive any automatic rights of use for the domain.
3. The costs for the reservation and hosting of additionally created domains shall be borne by clicks during the term of the contract.
4. if clicks registers a domain in the name of the Customer, the Customer hereby grants clicks the right to transfer the domain to his own name or to a third party name or to deregister it from the registry at any time in the event of default of payment under this contract or other reasons deemed important in the sense of this contract that entitle the Customer to terminate the contract.
F. Prices, payments, maturity
1. the prices are net prices to which the statutory value added tax is added. Invoices are due for payment without deductions at the latest 10 days after the invoice date.
2. the customer may only offset against undisputed or legally established claims.
3. one-off services will be invoiced after the service has been rendered. Regular services are invoiced monthly on the 01st of each month.
4. clicks can demand interest at a rate of 5 % above the respective base rate of the ECB from the date of default. The minimum interest rate shall be 7 % irrespective of this. The assertion of further damages caused by delay remains unaffected.
G. Notice of termination.
1. important reasons for an early termination of the contract by clicks are, among others, if:
a) the Principal ceases payment, insolvency or judicial composition proceedings are opened or rejected for lack of assets or out-of-court composition proceedings take place
b) claims of the client are attached and the attachment is not lifted within two weeks
c) the contractual partner violates essential contractual obligations, e.g. the obligation of secrecy.
2. an important reason is presumed if third parties attack the permissibility of the terms and page contents registered by the client.
H. Responsibility, exemption
1. clicks does not check whether the registered content or the client’s pages violate the rights of third parties. The client is solely responsible for the permissibility and freedom from rights of third parties of the contents of his pages registered by him, in particular with regard to copyright, competition law and criminal law.
2. clicks reserves the right to reject orders that are obviously illegal or violate business principles. However, Clicks does not carry out its own legal examination of the contents hosted/contained on the client’s pages.
3. The Principal hereby indemnifies Clicks from all claims of third parties arising from the fact that the Principal uses terms or content that are illegal or encumbered with the rights of third parties.
4. clicks shall be entitled to take the pages created in the name of its clients off the Internet in whole or in part, to change them so that they no longer infringe the rights of third parties or to issue required declarations of discontinuance if clicks is held liable by third parties for injunctive relief.
5. the contractor shall grant the client the exclusive right to the created services, unlimited in time, place and content, for all existing copyrights, ancillary copyrights and other industrial property rights under competition law, insofar as he is able to do so and no deviating contractual regulation exists.
I. Cooperation and acceptance
1. the Principal is obliged to provide all necessary cooperation so that clicks can perform the contractual service. In particular, he shall provide all information necessary for the execution of the contract.
2. the Principal is obliged to examine all services provided by clicks without delay and to notify clicks of any defects in writing with a detailed description. If clicks carries out the troubleshooting at the request of the Client and if it turns out that there are no errors or faults outside clicks’ area of responsibility, clicks may charge for the effort involved.
3. clicks shall be released from its obligation to perform if the Client does not comply with its obligation to cooperate. If clicks nevertheless performs, clicks shall invoice the expenditure in accordance with the valid prices.
4. If clicks is not granted FTP access on the part of the Principal, the Principal shall bear any costs arising from expenses incurred by a third party (e.g. Internet agencies or providers).
5. clicks is entitled to communicate this contractual relationship to the outside world on clicks’ websites after receipt of the order by the client. Clicks may sign the services it has developed appropriately, in the form of a footer link, and publish the order placed for self-promotion. The parties agree not to disclose details of the order such as the amount of the order volume etc.
6. upon completion of the service, the contractor shall notify the client in writing. The client has to check the service within 14 days and report any defects in writing. If no notification is received within 14 days, the service is considered to be accepted.
J. Liability
1. clicks is liable for any damages, regardless of the legal basis (e.g. non-fulfilment, subsequent impossibility, delay, warranty, culpa in contrahendo, breach of secondary obligations or tort) only in the case of intent or gross negligence. The liability for auxiliary persons is limited to intent.
2. clicks shall pay damages, regardless of the legal grounds (e.g. non-performance, subsequent impossibility, delay, warranty, culpa in contrahendo, breach of secondary obligations or tort) only to the following extent:
a) In the case of intent in the full amount.
b) In case of gross negligence and in the absence of a warranted characteristic in the amount of the typical damage that should have been prevented by the duty of care or the warranty of characteristics.
c) In other cases, only in the event of a breach of a duty so essential that the achievement of the purpose of the contract is endangered, due to delay and initial inability, and in all cases to compensation for the typical and non-removed damage, but limited:
in the case of deliveries and services, to the contract sum; in the case of recurring services, to an annual compensation for all damages per calendar year.
3. clicks shall not be entitled to claim damages if clicks cannot fulfil its obligations because the suppliers or service providers have not delivered properly without gross negligence on the part of clicks or because the software or network services delivered by them do not function properly.
4 The legal liability for personal injury and under the Product Liability Act remains unaffected.
5. clicks shall only be liable for the replacement of data if the Principal has ensured that this data can be reproduced with reasonable effort and expense from the machine-readable data stocks. This limitation of liability shall not apply in the event of intent or gross negligence.
K. Secrecy
The Principal undertakes to keep secret all business and trade secrets or information designated as confidential that he receives or becomes aware of during the execution of the contract by clicks or persons acting on behalf of clicks. This obligation also applies for two years after the end of the contract.
L. Applicable law and place of jurisdiction
1. amendments or additions to the contract including collateral agreements must be made in writing.
2. if one or more provisions of the contract including the general terms and conditions are or become invalid, the validity of all other provisions or agreements shall not be affected in case of doubt. Instead of the ineffective provisions, a provision shall apply which comes as close as possible to the economic sense and purpose of the ineffective provision in a legally permissible manner.
3 Exclusive place of jurisdiction is Dresden. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
Status: 16.10.2015
