1. General
The following general terms and conditions (T&Cs) are an integral part of all contractual agreements (whether in written or electronic form) between Demodern GmbH (hereinafter referred to as “Demodern”) and its clients. Any terms and conditions of the client that differ will not be recognised – unless explicitly agreed in writing – and will therefore not form a part of this contractual agreement. Subsidiary agreements will only be binding if they were confirmed in writing by post or e-mail. Any verbal statements are as a matter of principle not binding.
2. Offers
All offers made by Demodern are subject to change and are without obligation. All prices quoted are net prices excluding the statutory rate of VAT unless otherwise indicated.
3. Order placement
Orders must be placed in writing or by e-mail. Orders placed by the client will be accepted by Demodern with a written order confirmation sent by e-mail, fax or post. Demodern has freedom of scope for the execution of the order. Should the client desire changes to be made during or after execution of the order, he must bear any additional costs incurred by this. If the execution of the order is delayed for reasons for which the client is responsible, Demodern will be entitled to assert a claim for compensation in the event of intent or negligence.
4. Terms of payment
Unless otherwise agreed, all invoices issued by Demodern are payable within 14 days of their date of issue without deduction. When the period allowed for payment is exceeded, Demodern will be entitled to charge interest on arrears. This will not preclude any claims for additional compensation for arrears and the possibility of instituting legal proceedings. The fee to be paid by the client to Demodern is due after a project has completed and the invoice has been issued. Should a project last longer than one month, Demodern is entitled to invoice the client on a monthly basis for the services it has rendered. Demodern’s entitlement to payment becomes due when the invoice is issued. If sketches, drafts and other works (websites, scripts, programmes, graphics etc.) are re-used, or used to a greater extent than originally intended, the client will be obliged to pay a fee for the additional use.
5. Property and data
Sketches, drafts and other works (websites, scripts, programmes, graphics etc.) and all associated rights remain the property of Demodern. In the event of damage to or loss of the sketches, drafts and other works (websites, scripts, programmes, graphics etc.), the client must reimburse Demodern for the costs that are necessary to restore them. The right to assert claims for further compensation remains unaffected by this. Demodern is not obliged to hand over data media, files and data. Should the client wish Demodern to supply data media, files and data, it must be agreed in writing and reimbursed separately. If Demodern has supplied data media, files and data, they may only be modified with Demodern’s consent. The client must bear the risk and cost of the online or offline transfer of data media, files and data. Demodern will only be liable for defects in data media, files and data in the event of intent or gross negligence. Demodern’s liability is excluded for errors in data media, files and data that arise when data is imported into the client’s system.
6. Intellectual property rights and copyright
6.1 Intellectual property rights / rights of use
Sketches, drafts and other works (websites, scripts, programmes, graphics etc.) created by Demodern may not be modified, either in the original or in reproduction, without Demodern’s explicit consent. Any complete or partial imitation is prohibited. In the event of an infringement, the client must pay Demodern a contractual penalty of 200% of the agreed fee. Demodern retains the sole copyright for sketches, drafts and other works (websites, scripts, programmes, graphics etc.) created by Demodern and published. Demodern only transfers the rights of use, but no form of property right, to the client that are required for the relevant designated purpose. Unless otherwise agreed in writing, only a simple right of use is transferred. The client will only receive the rights of use for all sketches, drafts and other works (websites, scripts, programmes, graphics etc.) on full payment of the fee, unless otherwise agreed in writing. Even when the right of use has been granted to the client, Demodern will retain the right to use all sketches, drafts and other works (websites, scripts, programmes, graphics etc.) for its own promotional purposes. Any transfer of rights of use to third parties requires the written agreement between Demodern and the client.
Demodern is entitled to be named as copyright holder on all reproductions (hard and soft copies). Should the client infringe Demodern’s right to be named, he will be obliged to pay Demodern a contractual penalty of 100% of the agreed fee. This does not affect Demodern’s right to assert claims for higher compensation based on a calculation of the actual damage.
6.2 Third-party copyright
Demodern will render individual performance for each order and for each project. Typical layout styles (lines, gradients, colours etc.) and individual graphical elements (icons, buttons etc.) and coding (html language, css files etc.) are inevitably always used repeatedly by Demodern when performing individual commissions, meaning that the client explicitly does not acquire an exclusive right even after the acquisition of a right of use for the aforementioned services.
Should Demodern in individual cases use graphics or fonts from freely usable collections of graphics or designs, the possibility cannot be excluded that individual design components used by Demodern for an order will be used by other users of these collections. This does not give rise to the possibility of any claims being asserted against Demodern. Furthermore, Demodern expressly reserves the right to multiple use provided that the licensing provisions allow this. It is of course possible to use “exclusive” material; in this case, the necessary licence fee and the cost of acquisition must be reimbursed by the client or handled by him directly. The client acknowledges these points explicitly when placing the order.
6.3 Client’s duties / liabilities
The client is obliged to inspect the material provided for orders for the possible existence of intellectual property rights and copyright and to obtain any necessary permissions for the use of such. The client affirms that he is entitled to use all materials and originals made available to Demodern, that he has carefully examined the content and that they are free from the rights of third parties.
Any claims with regard to infringements of intellectual property rights and copyright must be borne in full by the client. The client bears sole responsibility for any text content or other form of published material. The client will indemnify Demodern on first demand from claims brought by third parties against Demodern for a situation or for behaviour for which the client under the terms of the contract bears responsibility or liability. The latter will bear any costs associated with prosecution.
6.4 Ideas, drafts and sketches
The client may only use any ideas, drafts and sketches provided by Demodern for the purpose of viewing and inspection. The use of these on the client’s website, making them available to third parties or similar uses such as editing a sketch for his own presentation purposes are explicitly prohibited. Should client nevertheless make use of the ideas, drafts and sketches without acquiring the right of use, Demodern will be entitled to minimum compensation in an amount equal to twice the quotation price or twice the amount of the agreed fee.
6.5 Client list
Unless expressly prohibited by the client in writing, Demodern is entitled to publicise a list of selected clients as references on its website or in print projects.
7. Delivery period
Delivery periods require written agreement. The delivery period will be deemed to have been interrupted for the duration of any examination of sketches, demos and test versions by the client. The interruption will be calculated from the day of notification by the client until the day of receipt of his response. Should the client require changes to the order after the order has been placed that have an effect on the period of production, the delivery period will be extended correspondingly. In the event of a delay in delivery, the client will only be entitled to exercise legal rights after granting an appropriate extension of at least two weeks.
8. Correction / acceptance / objection
Corrections and changes are included in the agreed prices provided that they do not exceed 5% of the net effort. Should this amount be exceeded, Demodern will inform the client in advance and discuss the matter with him. Change requests must be made in writing. Demodern will not accept any liability for verbal agreements made either in person or by telephone. Acceptance must be made in the form of a written notification of acceptance. The project results (websites, scripts, programmes, graphics etc.) supplied will be deemed to have been accepted or approved if no detailed written notice of defects is received within a period of 14 days after the project results have been supplied. Periods of vacation do not suspend these arrangements. Notification of such must be given by both sides in good time. In good time is deemed to be a lead time of four weeks. Any objections must be made immediately on receipt of the work results.
9. Warranty & defects
As part of any order, Demodern undertakes to handle and store any originals, documents, samples etc. provided by the client with great care. Demodern undertakes to rectify any defective performance free of charge at its own discretion. The client may not assert any claims for compensation in the case that rectification is not feasible (e.g. as it is impossible), except in cases of intent or gross negligence.
10. Arrangement of storage and domain names
Insofar as the arrangement of storage and domain names (web hosting) is involved, the T&Cs of the relevant web hoster / provider will apply in addition. When procuring internet domains and providing data on servers (web hosting), Demodern will act only as a mediator between the client and the organisations issuing the domains and providing web hosting. Demodern has no influence on the issuing of domains and the provision of a data on servers (web hosting) and therefore accepts no warranty for the domains applied for by the client being free from the rights of third parties, being permanent and for the data provided on servers being accessible at all times. The client will indemnify Demodern from any claims brought by third parties for the unlawful use of internet domains or inaccessible server data on first request.
11. Liability
Demodern will be liable for damage that it or its agents may cause with intent or through gross negligence. The delivery and return of work and originals is effected at the risk and cost of the client. Demodern will accept no liability for the admissibility under competition or copyright law and the validity of registration of its drafts and its conceptual and programming work and any other design work.
12. Materials provided
Demodern will not accept any liability for data media, originals and other material that are not reclaimed within one month of completion of the order / project.
13. Data integrity
The client will indemnify Demodern from any claims brought by third parties regarding the data provided on first request. The client will make backup copies of any data transferred to Demodern in whatever form.
14. Severability
Should these T&Cs contain any invalid provision, all other provisions will retain their validity. The invalid provision must be replaced by a valid provision that corresponds most closely to the purpose of the wording in question.
15. General provisions
Should the client withdraw from a contract or a project for reasons for which Demodern is not responsible, it is agreed that compensation will be paid in the amount of the verifiable costs incurred by Demodern, however at least 25% of the net value of the order..
16. Exclusion of assignment
The client is not entitled to assign any claims arising against Demodern from the contractual relationship with Demodern without the latter’s consent.
17. Third-party services
Demodern is entitled to commission third parties to provided services required to meet the order. Insofar as contracts for external services are concluded with third parties in individual cases, the client is obliged to indemnify Demodern at the first request from all internal liabilities arising from the conclusion of the contract with the third party, especially from the obligation to pay the price of the third-party service.
18. Jurisdiction
These T&Cs are subject to German law only and exclude all international and supranational legal (contractual) systems. The exclusive place of jurisdiction is Cologne. Unless otherwise agreed, the place of fulfilment is Cologne.
