General Terms and Conditions of wirDesign communication AG

1.1 Our GTC apply to all services provided by us to our customers/clients, both for current and future orders. Deviating agreements made for individual cases shall only apply to the respective contract and not to future agreements.

1.2 Our services and the client’s obligations for a specific order are based on any framework agreement concluded and our cost estimates or individual orders (hereinafter also referred to as ‘CE’).

1.3 The following order of precedence of provisions shall apply: 1. the CE; 2. the framework agreement; 3. these GTC. In the event of conflicting provisions, the overriding provision shall apply.

1.4 An order shall only be deemed to have been placed once our CE and/or the framework agreement has been confirmed in writing. The written form according to these GTC shall also be deemed to have been complied with in text form – for example, in the case of an email or fax in accordance with section 126b of the German Civil Code (Bürgerliches Gesetzbuch – BGB).

1.5 In the absence of any other provisions, we shall be bound by our CE for 30 working days from the date of dispatch

1.6 All amendments, supplements, ancillary agreements, in particular also information and commitments by employees involved in the order and by third parties engaged by us regarding orders, must be made in writing and, in the case of commitments by third parties, require our authorisation/approval. This also applies to the waiver of the written form requirement. 

1.7 The contractual relationship to be concluded is governed solely by our General Terms and Conditions. It is important to us that the contract is only concluded under these terms and conditions. We expressly do not recognise any provisions that contradict these GTC. Anything to the contrary shall only apply if we agree to this in writing in individual cases.

The development of conceptual and/or design proposals by us in the context of presentations, pitches or competitions shall take place without the transfer of rights of use, notwithstanding any provisions to the contrary in individual cases. Irrespective of the agreement of a design and/or presentation fee, a separate fee shall be payable for the transfer of rights of use, which we shall agree with you on a case-by-case basis.

3.1 Unless we expressly agree otherwise, we shall calculate our compensation according to daily rates or hourly rates in accordance with our calculation bases valid at the time of the order (price list, framework agreement) or as stated in the CE. The final prices calculated there are thus only estimated final prices.

3.2 As a matter of principle, we do not work free of charge. If no fee has been expressly agreed upon up front, we calculate our compensation in accordance with the calculation basis (price list) valid at the time of the order, according to the work incurred.

3.3 Reasonable expenses (e.g. costs for out-of-town travel) shall be reimbursed by the client against receipt. We shall calculate these costs according to our calculation bases (price list) valid at the time of the order.

3.4 Unless otherwise agreed in writing,
•    25% of the expected total compensation after the order is placed
•    50% of the expected total compensation after the service(s) owed have been sent/rendered
•    the remaining amount three weeks after delivery/performance of the service(s) owed or their acceptance
shall be due for payment after a corresponding invoice has been issued.

3.5 Our invoices are due on the date specified in the invoice; if no date is specified, payments are due ten working days after the invoice date.

3.6 We shall be entitled to demand interest on outstanding payments in accordance with section 288, point 2, of the BGB after expiry of the agreed payment deadline. Further claims for damages due to default shall remain unaffected.

3.7 We are entitled to issue interim invoices to a reasonable extent. Monthly invoicing for the work incurred in the previous month shall always be deemed reasonable.

3.8 We are entitled to retain all documents (including the documents that you have provided to us for the fulfilment of the order) until full payment of all remuneration claims.

4.1 Your cooperation is required so that we can provide our services as agreed. We therefore ask you to provide us with all facts, information, data, documents, specialist literature, preliminary versions, background texts, etc., relevant to the performance of our services free of charge, as soon as possible and in a legible form (digital or printed).

4.2 If the customer fails to cooperate even after a reminder setting a deadline and the order cannot be carried out as a result, we may terminate the order without notice. In the event of such termination, the clause given under section 10 of these GTC shall apply accordingly to our remuneration; this shall not apply if the customer is not at fault for the failure to cooperate.

4.3 Insofar as there is no reason to do so, taking into account the respective circumstances of the individual case, or if our agreement expressly includes this, we will not check the information, data, reports, etc., provided to us for completeness and accuracy. 

4.4 Please inform us as soon as possible of all events and circumstances that could be of significance for the execution of the order.

4.5 You guarantee us that you hold all rights to the documents, data and information provided by you that are necessary for the execution of the order. This includes in particular the rights of reproduction, processing and publication (also in edited form).

5.1 We are obliged to make the service available to the customer in such a way that it can be used within the scope of the purpose of the contract. Unless expressly agreed otherwise, the customer shall not be entitled to receive the services in a specific form or in a specific manner.

5.2 The customer has no claim to the provision of interim work results.

5.3 The acceptance of our works or the acceptance of deliveries and partial deliveries is a primary obligation of the customer. If acceptance is refrained from or refused without justification, the customer shall be in default of acceptance without further reminder. This shall apply accordingly if we send the customer interim work results for approval.

5.4 Deliveries are made at the customer’s expense and risk.

We describe the compatibility for digital services and products commissioned by the client (e.g. websites, apps, web apps) in our appendix entitled ‘Compatibility and specifications for digital products from wirDesign communication AG’ or we expressly agree upon this in the CE.

7.1 Unless expressly agreed otherwise, our services are only intended for the client and may only be provided to third parties with our consent.

7.2 Should the customer pass on our services to third parties without our consent, they shall indemnify us against all third-party claims based on the unauthorised passing on. The indemnification shall in particular also include our necessary and reasonable costs for legal defence.

8.1 Delivery deadlines are given to the best of our knowledge and belief, but unless we expressly agree otherwise, they can only ever be estimated delivery dates. They do not constitute a binding assurance.

8.2 If a binding delivery date cannot be met due to force majeure or for other reasons for which we are not responsible, we shall be entitled to demand a reasonable grace period from the customer. Further rights – in particular, claims for damages – are excluded in such cases.

9.1 If you do not notify us in writing of shortcomings within ten days of receipt of our work or other work results, giving a specific description of the shortcoming in question (assertion of the claim for subsequent performance), the respective work/our respective service (or the partial work or partial service) shall be deemed to have been accepted. If you are of the opinion that a longer inspection period is necessary (e.g. due to the considerable scope of the work), you must notify us of this in writing within three working days of receipt of the work. In this case, the inspection period shall be extended by a further 14 days, calculated from the date of receipt of the work.

9.2 A hidden defect must be reported immediately, at the latest within five working days of becoming aware of it.

9.3 We shall remedy the defect within the agreed period – if none has been agreed, then within a reasonable period. We have the right, at our own discretion, to rectify our services twice or to provide new ones. Withdrawal due to such shortcomings is excluded if the value or suitability of the service is only insignificantly reduced by the defect.

9.4 The right to subsequent fulfilment shall lapse if and insofar a defect is due to a breach of your duty to cooperate.

9.5 Warranty claims are subject to a limitation period of 12 months from the start of the statutory limitation period.

10.1 Unless we expressly agree otherwise, the customer may terminate a placed order at any time without notice.

10.2 In the event of termination of an order until completion of the services, we shall be entitled to demand the agreed compensation; however, we shall be entitled to deduct any expenses we have saved as a result of the termination of the contract or which we have acquired or maliciously failed to acquire through other use of our labour.

10.3 The agreed compensation shall (also) be the anticipated compensation if we have agreed compensation on a time and material basis (e.g. according to daily or hourly rates) in the framework agreement or CE.

11.1 Any employee with the appropriate qualified training is
authorised to process the respective order.
We may also use carefully selected third parties. If you do not wish us to do so, please inform us in writing before the contract is finalised. Insofar as you may incur additional costs as a result, we will agree this cooperation with you in advance. We are only liable for the careful selection of third parties.

11.2 We may also use carefully selected third parties. If you do not wish us to do so, please inform us in writing before the contract is finalised. Insofar as you may incur additional costs as a result, we will agree this cooperation with you in advance.

11.3 If you intend to commission third parties within the scope of our agreement, with whom we are to work together to carry out the order, please inform us before commissioning them. We will then coordinate the further execution of the order with you; in particular, we will check whether a trusting and productive collaboration is possible. If this is not the case, we are entitled to terminate the order without notice, unless this would represent an unacceptable hardship for you.

We communicate with you in various ways, in particular via the internet (and there, for example, via communication platforms such as Redmine), by mail, by email and by telephone. Unless we expressly agree otherwise, we may use any of these forms of communication. We cannot accept any responsibility for risks arising from the use of these communication channels. Please inform us in writing if you only wish to communicate via certain (possibly encrypted) communication channels.

13.1 We have the right to use our services as a reference in our self-representation if these have been published by the customer. This right also includes the presentation of the services or parts thereof even within the customary advertising framework. We inform our customers about this.

13.2 For services not published by the customer, naming as a reference requires the client’s consent.

13.3 We have the right to label our services, in particular designed advertisements and websites, with our full name, registered office and a link to our website to an appropriate extent – for example, on a website designed by us in the customer’s legal notice.

13.4 If our services are changed by the customer or by third parties, we can demand not to be named (any more).

14.1 The careful and conscientious handling of the information that comes to our knowledge through the order is very important to us. We will maintain confidentiality about all facts that become known to us in connection with our work for you, unless they become public through a third party. The information obtained will only be passed on if you consent to this in writing or if we are, on the basis of a law or an official/judicial order, obliged to pass it on.

14.2 We will also impose the above confidentiality obligation on third parties that we use to perform our services.

14.3 When texts and data are transmitted electronically between the customer and us, we cannot guarantee absolute confidentiality due to the possibility of external intervention. If stricter confidentiality obligations are to be observed when processing certain documents, the customer is obliged to explain these requirements to us in detail in writing when placing the order and, if necessary, to provide the programs, codes and passwords to be used.

15.1 Unless we expressly agree otherwise or unless otherwise provided for in the provisions of these GTC (e.g. those given under section 2), the customer shall, in case of doubt, receive simple rights to use all our services in accordance with the purpose of the contract, for an unlimited period of time, limited to the territory of the European Union and not transferable to third parties. The right to edit requires our separate consent.

15.2 Until full payment of all claims arising from the respective order, a delivered work shall remain our property or all rights of use, and exploitation shall remain with us, unless we have expressly agreed otherwise.

16.1 We would like to point out that we do not provide legal advice within the scope of all orders placed and are not obliged to provide our services according to legal criteria. In particular, we do not check whether the results of our services infringe (older) third-party rights (e.g. trademarks, design rights, copyrights), comply with applicable competition law, or whether our services can be registered as property rights by the customer. We expressly recommend that our customers seek legal advice.

16.2 The client is obliged to check or have verified the results of our services to the extent customary in the market to ensure that they are free from third-party rights and comply with competition law. If and to the extent that the customer culpably breaches an obligation in this respect under they shall indemnify us on first demand against all third-party claims asserted against us because the use of our service results by us or the customer infringes third-party rights or other legal provisions. Further statutory claims for damages shall remain unaffected.

17.1 Subject to the exceptions stated under section 17.2 of these GTC, our liability for contractual breaches of duty and for tort shall be limited to intent or gross negligence; in the absence of a guaranteed characteristic, we shall be liable for all damage attributable thereto.

17.2 We shall be liable without limitation in the event of slight negligence in the event of injury to life, limb or health or in the event of a breach of a material contractual obligation. If we are in default of performance due to slight negligence, if performance has become impossible or if we have breached a material obligation, liability for property damage and financial loss attributable thereto shall be limited to the foreseeable damage typical of the contract. A material contractual obligation is one whose fulfilment is essential for the proper execution of the contract, whose breach jeopardises the achievement of the purpose of the contract and on whose compliance the customer may regularly rely. This includes in particular our obligation to fulfil the contractually owed main service, which is defined in the framework contract and/or CE.

17.3 As we only act in relation to you, we exclude any liability for damages suffered by third parties and asserted against you, unless mandatory statutory provisions to the contrary exist or something else has been agreed in writing. If a violation of the legal interests of third parties has occurred or is to be expected, you must inform us immediately and comprehensively and do everything necessary to minimise our liability and indemnify us as far as possible.

17.4 We maintain a business liability insurance for damages caused by us; this covers damages up to a sum of 500,000 euros (for financial losses) or ten million euros (for personal injury and property damage, maximum compensation for a single person is three million euros). Before accepting an order, we will assess our liability risk with all the means at our disposal. If you are able to recognise that our liability risk exceeds our insurance sum, please inform us immediately. In order not to jeopardise the existence of our company, we will then subject the order to a further review and, if necessary, adjust our sum insured or our agreement or reject the order.

17.5 We shall only be liable for damage caused by a delay in performance for which we are responsible up to the amount of the foreseeable damage, but at most up to the amount of our sum insured specified under section 17.4 of these GTC.

17.6 We cannot accept any liability for delays in performance and/or damages resulting from your failure to comply with your obligations to cooperate within the meaning given under section 4 of these GTC.

17.7 We cannot accept any liability for delays and/or damage caused by force majeure or unavoidable events.

17.8 We also accept no liability for damage caused by events for which we are not responsible (e.g. server errors and failures at third parties, line and transmission faults). This exclusion of liability does not apply if we are at fault for the selection of third parties.

Our salaried and freelance employees may not be employed, engaged or commissioned, either directly or indirectly, for up to 24 months after completion of the client’s last order without our approval; nor may they be made an offer for such activities either verbally, in writing or in any other way.

We may work for the client’s competitors. However, an exclusion of competition can be expressly agreed in return for guaranteed revenue.

You may only offset counterclaims if they have been legally established or are undisputed. A right of retention can only be asserted if it is based on the same matter. The claims to which you are entitled from the contractual relationship are not transferrable without our prior written consent.

21.1 We are entitled to store documents and other work results created by us or by you or by a third party in a central system (including online) for the duration of the respective order, in addition to storing them in paper form, in order to provide the team working for you with easy access to the required information. We ensure that the data is protected against access by unauthorised third parties using the latest and appropriate security mechanisms.

21.2 You will receive back any original documents provided to us after the end of the contractual relationship, subject to section 3.8 of these GTC. Unless we agree otherwise, we are entitled to retain copies of the original documents.

21.3 The customer has no claim to the safekeeping of documents with us.

22.1 We are entitled to amend less important provisions of these GTC at our discretion for certain or all customers to a reasonable extent with effect for the future, provided that this amendment does not lead to a reorganisation of the contractual structure as a whole.

22.2 The amended terms and conditions shall be notified to the customer concerned by email at least two weeks before they come into force. If the customer does not object to the validity of the new GTC within two weeks, the terms and conditions shall be deemed to have been accepted. We will inform the customer separately in the notification email of the significance of this two-week period, the right of objection and the legal consequences of silence. If the customer objects to the amended terms and conditions within the aforementioned period, we shall be entitled to terminate the contract extraordinarily without notice.

23.1 If you are a merchant or a legal entity under public law or a special fund under public law, the place of jurisdiction for all claims arising from our business relationship shall be our registered office at the time the action is filed. However, we are also entitled to assert our claims at your general place of jurisdiction.

23.2 The law of the Federal Republic of Germany shall apply exclusively – to the exclusion of the UN Convention on Contracts for the International Sale of Goods.