General Terms and Conditions (DM – Agency)
DigitalMeister Dienstleistungen, Karl-Ziegler-Straße 5,12489 Berlin (hereinafter: DM)
Tax number:
36/203/04612
VAT ID:
VAT identification number according to Section 27a of the VAT Act:
DE454050948
§ 1 Scope
(1) The following general terms and conditions apply to all contracts between DigitalMeister Dienstleistungen, Karl-Ziegler-Straße 5,12489 Berlin, – hereinafter referred to as DM – and its clients.
(2) Any conflicting or deviating terms and conditions of the client will not be accepted unless their validity is agreed to in writing. This also applies if DM does not expressly object to them.
(3) DM’s offers are aimed at entrepreneurs. An entrepreneur (Section 14 of the German Civil Code) is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their independent professional or commercial activity. By concluding the contract, the customer confirms that they are an entrepreneur.
(4) The general terms and conditions in the version valid at the time of the respective order apply.
§ 2 Subject matter of the contract, scope of services
(1) The scope of the service owed by DM is based exclusively on the service description in the respective offer from DM, but not on general advertising information on the Internet or other media.
(2) DM provides services, particularly in the area of
(3) If no individual performance period has been agreed, the initial term shall be 12 months.
(4) If targets are agreed for a performance-related participation, these are not legally binding and in particular are not guaranteed, but solely serve as the basis for calculating the relevant remuneration.
(5) DM may employ third parties as subcontractors to provide services owed under the contract.
§ 3 Conclusion of Contract
(1) Services generally offered by DM do not constitute a legally binding offer to conclude a contract. They merely invite the client to make a binding offer to DM.
(2) The contract between DM and the client is concluded when both parties agree and declare this unanimously. The declarations do not require any special form. The contract can therefore be concluded, for example, in a video conference, via chat, telephone, email, fax or in writing. The customer agrees that DM records the telephone call, video conference or chat for evidence and documentation purposes. In the case of a video conference or telephone call, the contract is concluded during the conversation.
(3) The contract can also be concluded in an online shop if the customer clicks an order button there after placing certain products in the virtual shopping cart. DM confirms receipt of the order by email. Such an email does not constitute a binding acceptance of the order unless it also confirms receipt and also declares acceptance. This can happen in particular if the customer is granted direct access to the purchased services (e.g. access to the password-protected participant platform).
§ 4 Remuneration, Set-off
(1) The amount of the remuneration owed by the client is stated in DM’s offer. If the client commissions DM without a prior offer, the remuneration shall be determined according to DM’s current price list, or in the absence of a price list, according to the usual market remuneration. All prices stated are net plus VAT.
(2) The Client may only offset the fee claim and the claim for reimbursement of expenses with undisputed or legally established claims.
(3) DM may demand reasonable advances on remuneration and reimbursement of expenses and make the performance of the owed service dependent on the full satisfaction of its claims.
(4) Multiple clients for the same contract shall be jointly and severally liable for the remuneration.
§ 5 Payment, Invoice
(1) Payment is generally made by SEPA direct debit. When placing the order, the client issues DM a SEPA direct debit mandate in writing or – using a form provided by DM – in text form. The direct debit authorization granted is valid for all claims by DM against the client arising from the business relationship until revoked.
(2) DM may use external payment service providers to process payments and may also commission third parties to conclude the contract with the client in their own name. Further details are set out in the terms and conditions of the payment provider, which are available to the client before the contract is concluded. The client may only request payment via other payment methods if this has been expressly agreed.
(3) Payments are due immediately and without deduction after invoicing.
(4) In case of non-payment, the Client shall owe DM, even without a separate reminder, default interest of 9 percentage points above the base interest rate from the 14th day after the due date and receipt of the invoice.
(5) Objections to invoices from DM must be raised within two weeks of receipt at the latest.
(6) In the event of late payment, in the event of a direct debit being returned and in the event of unjustified objections raised by the client against a payment to the respective payment provider, the client is obliged to pay DM compensation in accordance with the terms and conditions of the payment provider, which are available to the client before the contract is concluded. This does not apply if the client is not at fault.
§ 6 Obligation of the Client to cooperate
(1) The customer must always fully provide the necessary and incumbent cooperation within the reasonable period set by DM. If the customer fails to provide cooperation and thereby prevents DM from providing the service, DM’s claim to remuneration remains unaffected (default in acceptance). In the case of continuing obligations, the customer bears the risk of using DM’s service, whose claim to remuneration remains independent of the fault of the client for the failure to provide cooperation, provided that the reasons for preventing DM from providing the service originate from the client’s sphere of influence.
(2) The client acknowledges that the achievement of its own goals and successes depends on its cooperation and is therefore of central importance. It therefore ensures, even without a specific request from DM, that all necessary information and data are made available to DM in a timely manner and that the necessary reliable, correct and complete information is provided. This also applies to all information, data, processes and circumstances that only become available or known during the consulting activity.
(3) The success of the cooperation also depends on the client making all decisions necessary to provide the agreed consulting services without delay and obtaining any necessary approvals (e.g. approvals from the group management, the supervisory board, the employees, the works council, etc.). The client therefore undertakes to make and communicate such decisions without delay.
(4) If the agreed consulting services are provided on the premises of the client, the client will provide the necessary office infrastructure free of charge and ensure that all organizational framework conditions are in place and that uninterrupted service provision is guaranteed.
(5) If the client violates his duty to cooperate or if there are other circumstances outside of DM’s sphere of influence that prevent DM from providing the agreed consulting services, an agreed schedule (milestones) will be postponed. In addition, DM is entitled to invoice the client for the additional costs caused by him (e.g. downtime of the employees deployed). DM’s claims due to delay in acceptance remain unaffected.
§ 7 Right of retention, default
(1) The Client may only demand that DM perform the contractually owed services once the agreed remuneration has been received, all requested data information has been provided completely and correctly and the required cooperation has been provided.
(2) If the Client is in arrears with payments due, DM may refuse to provide further services until the outstanding amount has been settled.
(3) DM has a right of retention to the documents provided by the client for the purpose of providing the services owed until its claims arising from the contractual relationship have been fully met. This right of retention does not apply if and to the extent that this would cause the client a disproportionate disadvantage, even taking into account DM’s interest in performance.
§ 8 Behavior and Consideration
(1) If DM and/or the customer rate each other publicly (e.g. with stars or comments), they express themselves favorably with regard to the joint collaboration and the respective contractual partner, even after the contract has ended. Statutory rights of expression remain unaffected by this.
(2) If the customer participates in communities and groups that are exclusively organized and managed by DM (e.g. on Facebook), he takes DM’s interests into account. If the customer violates or impairs DM’s interests within the group/community (e.g. by making statements that are damaging to the company), DM can temporarily or permanently exclude the customer from participating in communities and groups.
§ 9 Liability
(1) DM is liable for damages resulting from injury to life, body or health that are based on an intentional or negligent breach of duty by DM, its legal representatives or its vicarious agents. In addition, DM is liable for guarantees given and for damages that are covered by liability under mandatory statutory provisions, such as the Product Liability Act (ProdHaftG). Apart from that, DM is liable for other damages that are based on an intentional or grossly negligent breach of duty or fraudulent intent by DM, its legal representatives or vicarious agents.
(2) DM is liable for damages caused by simple negligence and not covered by sentences 1 and 2 of the previous paragraph, insofar as the negligence concerns the violation of contractual obligations, compliance with which makes the implementation of the contract possible in the first place and on whose fulfillment the client can therefore rely (cardinal obligations); however, liability towards entrepreneurs is limited to the foreseeable, contract-typical, direct average damage, so that indirect damages (e.g. loss of profit) and consequential damages are excluded. The amount of the damage is limited to the value corresponding to three times the value of the delivery.
(3) Any further liability is excluded regardless of the legal nature of the claim asserted.
§ 10 Prohibition of Solicitation
The Client undertakes not to actively poach, attempt to poach or have attempted to poach any employees of DM or any subcontractors of DM during or for a period of three years after termination of the respective contract.
§ 11 Limitation Period
All claims of the client against DM resulting from the contractual relationship expire after two years. Deviating from this, the statutory limitation period of three years applies if DM is guilty of intent.
§ 12 Early termination, compensation
(1) If the order ends before it has been fully completed, DM will receive a portion of the remuneration that corresponds to the scope of the work carried out by DM up until the end of the order. If the order is terminated prematurely for reasons for which the client is responsible, DM is also entitled to 90% of the remuneration to which it is entitled for the period from the termination of the order until the expiry of the agreed ordinary notice period. The contracting parties have the option of proving lower or higher damages.
(2) If the client is in arrears with more than one instalment due in the case of continuing obligations or installment payments, the client may terminate the contract extraordinarily and discontinue the services. In this case, DM is entitled to claim an amount equal to the total remuneration that would otherwise be due until the next regular termination date as compensation.
§ 13 Contract term, termination
(1) The contractual relationship may be terminated by either party with one month’s notice up until the end of the agreed contractual term.
(2) If the contract is not terminated one month before the end of the term, the term shall be extended by a period equal to the length of the initial term.
(3) If the Client places a further order with DM for other services before the expiry of the contract term, the minimum term of the first contract shall be extended until the end of the further order, so that the terms shall end in parallel if they are not extended.
(4) After the end of the cooperation or if DM informs the Client in writing that all services owed have been provided in full, the Client may no longer demand the provision of further services unless he complains in writing of the incompleteness of the services provided within four weeks of receipt of the written declaration from DM.
(5) Any free right of termination of the customer is excluded. The mutual right to extraordinary termination remains unaffected.
(6) Any termination must be in writing to be effective.
§ 14 Copyright, Rights of Third Parties
(1) All documents and other media created and made available by DM for the purpose of providing the services owed are the intellectual property of DM. The client acknowledges DM’s exclusive rights to the documents, regardless of whether the documents are actually protected by copyright, trademark or competition law.
(2) DM grants the client a simple, worldwide right of use to the work and performance results created and made available by DM for the contractually agreed purpose for the duration of the contract term. This includes, for example, documents, evaluations, tables, infographics, videos, photos, designs, know-how acquired in the course of fulfilling the order, advertisements, advertising texts, drawings, materials, specifications, program drafts, data collections, software including associated documentation, manuals and IT systems in the form of source codes or in any other form. As long as work results are not completed, the corresponding partial results are considered work results within the meaning of this contract.
(3) The acquisition of rights pursuant to paragraph (2) above is subject to the condition precedent of full payment of the agreed remuneration; in the case of payment by instalments, therefore, with the last instalment.
(4) The Client may use the documents provided during and, to the extent that this results from the contract, after termination of the contractual relationship exclusively for those of its own business purposes that are covered by the contract and the specifically agreed scope of services.
(5) The passing on of work results to third parties and the processing of all work and performance results of DM require the written consent of DM, unless otherwise agreed. The client is under no circumstances entitled to change analyses, opinions, reports, etc. of DG.
(6) The client guarantees that the materials provided to DM (e.g. photos, videos and texts) are free of third-party rights and that all approvals requires DM against any claims by third parties, including reimbursement of necessary legal defense costs.
§ 15 Documents of the Client
§ 15 Documents of the Client
(1) DM is entitled to regard the information provided and documents handed over by the client as correct and complete. Unless expressly agreed otherwise, DM is not obliged to check for inaccuracies and to correct them.
(2) After satisfaction of its claims arising from the order, DM must, at the request of the client, hand over all documents that DM received from the client or for the client for the execution of the order. However, this does not apply to correspondence between DM and the client and to documents that the client already has in original or copy form. DM may make and retain copies of documents that are returned to the client.
(3) After completion of the contract, the contracting parties have the right to return the documents received from the other party or to destroy them. If these are originals, the consent of the other party must be obtained before destruction.
(4) There is no obligation to retain data unless this is stipulated by law.
§ 16 Confidentiality and secrecy
(1) The parties shall maintain confidentiality regarding all facts which come to their knowledge in connection with the performance of the contract, unless the client releases them from this obligation.
(2) The obligation of confidentiality does not apply to the client’s lending banks.
(3) DM undertakes to protect all business secrets of the Client and to comply with the statutory data protection regulations.
§ 17 Electronic Communication, Data Security
(1) Communication between DM and the client can also take place via email, chat messenger or direct messages. If the client does not wish to communicate via email or has special security requirements such as encryption of emails, the client will inform DM accordingly in text form.
(2) DM is entitled to send invoices to the client in electronic form. The client expressly agrees to DM sending invoices in electronic form.
(3) The Client assures that the applicable data protection regulations (in particular the GDPR and the BDSG) will be complied with when processing personal data.
(4) The customer shall indemnify DM against liability for violations of data protection law in the context of the performance of the contract, unless DM is responsible for these violations.
§ 18 Final Provisions
(1) Any subsidiary agreements, additions and changes as well as other agreements that deviate from these General Terms and Conditions are only valid if they have been agreed in writing or confirmed by DM. Individual agreements made with the client in individual cases always take precedence over these General Terms and Conditions.
(2) The contractual agreements between DM and the Client shall be governed by the law of the Federal Republic of Germany.
(3) If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising from or in connection with the contractual agreements is the registered office of DM. However, DM can also sue the customer at its place of business. The above does not apply if another – legally mandatory – exclusive jurisdiction exists.
