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General Terms and Conditions

1 Scope of the General Terms and Conditions

The following terms and conditions apply to all orders between ZENKER DESIGN (hereinafter referred to as the Contractor) and the Client (hereinafter referred to as the Client only). The offer is aimed exclusively at entrepreneurs. By placing an order, the client expressly accepts the following general terms and conditions. The Contractor shall only recognize any terms and conditions of the Client that conflict with or deviate from the General Terms and Conditions if the Client has given its express prior written consent.

2. scope of services and binding nature of offers

2.1 The agreed fee shall exclusively include the scope of services specified by the Contractor in the offer within a mutually recognized briefing. As a rule, coordination is based on a text manuscript with two correction runs as well as a layout and a final layout with a briefing-compliant correction phase. The one-off creation of PDF files in accordance with the X3 standard when print files are handed over is included in the fee. Further corrections will be charged additionally at the applicable hourly rates.

2.2 Corrections that lead to changes in the scope shall subsequently invalidate the corresponding parts of the offer and their commissioning. The fees and expenses shall then be recalculated by the contractor or charged according to the work involved. The offer shall remain valid for four weeks.

3. copyrights and rights of use

3.1 The Contractor's drafts and final artwork may not be altered either in the original or in reproduction without the Contractor's written consent. Any imitation - including of details - is not permitted. In the event of a breach of this provision, the Client shall pay the Contractor a contractual penalty amounting to 100 percent of the remuneration due for the design service in addition to the remuneration due for the design service.

3.2 The Contractor shall transfer to the Client the rights of use required for the respective purpose. Unless otherwise agreed, only the simple right of use shall be transferred. Even if the exclusive right of use has been granted, the copyright and use for the purposes of self-promotion in all media shall remain with the Contractor. The rights of use shall not be transferred to the client until the remuneration has been paid in full.

3.3 The granting of rights of use to third parties requires a written agreement between the Contractor and the Client.

3.4 If the client has acquired co-authorship, he waives his rights under Section 8 (2) to (4) UrhG.

3.5 Unless otherwise agreed, the Contractor shall always be named as the author in the event of duplication, distribution, exhibition and public reproduction of the designs, in the case of web projects in particular also by means of a reference with a link to its own website. If the Client violates or refuses the right to be named, it shall be obliged to pay the Contractor a contractual penalty of 100 percent of the remuneration owed in addition to the remuneration owed. This shall not affect the Contractor's right to claim higher damages in the event of a specific calculation of damages.

3.6 The Contractor's written consent is required in the event that the Client wishes to apply for formal property rights to be entered in an official register with regard to the designs, final artwork or other work.

3.7 Any renewed use of the drafts and/or final artwork shall require the prior written consent of the Contractor. The same applies to uses that go beyond the originally agreed or intended scope.

3.8 The designs are created to the best of our knowledge and belief, but are not checked for similarity with registered trademarks - this legal service must be provided by a lawyer, for example, if required.

4. remuneration and cancellation

4.1 The amount of the remuneration is set out in the cost estimate or the offer or the agreed hourly rate. The agreed prices are net amounts, payable plus statutory VAT and without deduction.

The Contractor may demand additional remuneration for any additional services requested by the Client.

4.2 Payment shall be due immediately upon receipt of the invoice. For offer amounts of EUR 1,000.00 or more, the invoice shall be issued in two parts, unless otherwise agreed: The first half shall be invoiced when the order is placed. The second half shall be invoiced after the end of the project with the final invoice.

4.3 The Client shall pay a contractual penalty amounting to 100 percent of the remuneration for each new or additional use made without the Contractor's consent, in addition to the remuneration appropriate for the use in question.

4.4 The Contractor shall be entitled to invoice separately for any additional costs incurred for which the Contractor is not responsible and which were not foreseeable when the order was placed despite due care, provided that they are linked to an objectively justified reason, are clearly recognizable to the Client and are sufficiently specific. This shall also apply if the client is not responsible for these costs.

4.5 Unless expressly agreed otherwise, the remuneration in the offers is stated in euros. If the offer expressly specifies a different currency, this shall be subject to exchange rate fluctuations in the period between the placing of the order and payment by the Client. If exchange rate fluctuations occur and the Contractor incurs additional costs as a result, which are not foreseeable at the time the contract is concluded, the Contractor has the right to pass these costs on to the Client. Additional costs must be notified to the Client by the Contractor in writing in due course and included in the next invoice.

4.6 Cancellation of an order is generally not permitted and requires the Contractor's consent. If the Contractor agrees to a cancellation, the Client shall be obliged to pay compensation. The compensation shall be calculated on the basis of the work performed to date in accordance with the offer or the hourly rate. This shall not affect the Contractor's entitlement to further compensation.

5. third-party, additional and technical ancillary costs

5.1 The Contractor is entitled to order the external services required to fulfill the order on behalf of the Client. Invoices for external services shall be forwarded to the Client and must be paid directly by the Client.

5.2 Insofar as contracts for third-party services are concluded in the name and for the account of the Contractor in individual cases, the Client shall be obliged to indemnify the Contractor internally from all liabilities arising from the conclusion of the contract, in particular from the obligation to pay the price for the third-party service.

5.3 Image research, image rights, photo shoots and the necessary organization, illustrations, image processing and all technical preliminary costs for production such as scans, proofs, colour prints, translations and editing, hosting and web addresses, user training, rental for external data sources, data dispatch, travel costs and courier services etc. are not part of the offer - unless otherwise stated in the offer - and will be charged by the contractor on a time and material basis. The final inspection of the media is the responsibility of the client; liability for graphic or text errors or general production errors after approval by the client is excluded, unless it is based on intent or gross negligence on the part of the contractor.

6. publication and provision of data

6.1 The Contractor is not obliged to hand over data carriers and data. If the client wishes to be provided with data carriers and data, this must be agreed in writing and paid for separately.

6.2 In the case of web projects, the Contractor shall provide the Client with all data required to update the website and edit the content. The data format and the type of data carrier shall be determined by mutual agreement between the parties. If no provision is made, the Contractor may choose a suitable data format and a suitable data carrier.

6.3 If the Contractor has provided the Client with data carriers and data, these may only be changed with the consent of the Contractor.

6.4 The client shall bear the risk and costs of transporting data carriers and data online and offline.

6.5 The Contractor shall not be liable for errors in data carriers and data that occur during data import onto the Client's system, unless they are due to intent or gross negligence on the part of the Contractor.

6.6 The Client undertakes to provide the Contractor only with templates such as photos, texts or other work materials that have been approved for publication or reproduction. If, contrary to this obligation, the Client is not authorized to use them or if the templates are not free of third-party rights, the Client shall indemnify the Contractor internally against all third-party claims for compensation. The Contractor shall not be liable for any statements contained in the designs about the Client's services or products.

7 Delivery and delay

7.1 The deadlines described in the offer shall apply to the delivery of the results or partial deliveries. If services are not provided on time for reasons for which the Contractor is responsible, the Client may set a reasonable grace period with a threat of refusal.

7.2 If the Client is late in providing the information required for the provision of the service or in providing the necessary documents, the Contractor shall not be obliged to comply with agreed delivery and performance deadlines.

7.3 If the Client fails to fulfill its obligations to cooperate despite the Contractor setting a reasonable grace period, the Contractor shall be entitled to terminate the contractual relationship for good cause and to claim damages.

7.4 In the event of non-compliance with agreed delivery deadlines due to delays caused by force majeure, riots, strikes, sovereign measures, lockouts or operational disruptions for which the Contractor is not responsible, including at a subcontractor, the performance period shall be extended by the period until the disruption has been rectified. The Contractor shall inform the Client of the beginning and end of the disruption.

7.5 In the event of permanent operational disruptions due to force majeure or permanent operational disruptions for which the Contractor is not responsible, the Contractor shall have the right to terminate the contractual relationship for good cause, excluding any claims for compensation.

7.6 In the event of late payment, the Contractor shall be entitled to charge interest on arrears at a rate of 9 percentage points above the respective base interest rate. The Contractor also reserves the right to withhold the services in the event of late payment.

8. correction and production monitoring

8.1 Corrections shall be agreed with the Contractor prior to execution of the reproduction or online placement. Once the design has been approved for production, reproduction or online placement, the client shall no longer be entitled to the implementation of further corrections. With the acceptance of the work and/or the release of drafts, final artwork or technical implementations, the client assumes responsibility for the correctness of the text and image, with the consequence that the liability of the contractor shall lapse in this respect.

8.2 The Contractor shall only undertake production monitoring if it has expressly agreed to this in advance. In the case of production supervision (without the presence of the Client), the Contractor shall decide at its own discretion and issue corresponding instructions.

8.3 The client can only have a say in the production result (e.g. in the case of print products) if it is present during production. This can be agreed in advance with the contractor. If the client is absent during production, the production result cannot be rejected due to production fluctuations, such as reasonable color variations or slight format changes.

9. sample document

The Client shall provide the Contractor with two flawless samples of all reproduced work free of charge as specimens.

10 Liability and warranty

10.1 With the exception of injury to life, limb and health and the breach of essential contractual obligations (cardinal obligations), the Contractor shall only be liable for damages that are attributable to intentional or grossly negligent conduct. This also applies to indirect consequential damages such as, in particular, loss of profit. An essential contractual obligation is one whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.

10.2 Except in the case of intentional or grossly negligent behavior or in the case of damages resulting from injury to life, body and health and the breach of essential contractual obligations (cardinal obligations), liability shall be limited to the damages typically foreseeable at the time of conclusion of the contract and otherwise to the amount of the agreed remuneration. This also applies to indirect consequential damages such as, in particular, loss of profit.

10.3 The limitation of liability in paragraphs 1 and 2 shall also apply mutatis mutandis in favor of the Contractor's employees and vicarious agents.

10.4 Claims of the Client arising from a breach of duty by the Contractor shall become time-barred one year after the statutory commencement of the limitation period. Excluded from this are claims for damages based on an intentional or grossly negligent breach of duty by the Contractor and claims for damages due to injury to life, limb or health, even if they are based on a slightly negligent breach of duty by the Contractor; the statutory limitation periods shall apply to these claims for damages.

10.5 The Contractor shall not be liable for the copyright, design or trademark protection or registrability of the drafts and design work provided to the Client for use. Design, patent or trademark searches must be carried out by the client himself and at his own expense.

10.6 Under no circumstances shall the Contractor be liable for the legal admissibility of the intended use, in particular under competition and trademark law. However, it shall be obliged to inform the client of any legal risks if it becomes aware of them during the execution of the order.

10.7 The Client is obliged to inspect the work performed by the Contractor within a reasonable period of time after receipt and to notify the Contractor of any defects. Notification of obvious defects must be made in writing within two weeks of delivery of the work; notification of non-obvious defects must be made within two weeks of the defect being discovered. Timely dispatch of the complaint shall suffice to comply with the complaint period. In the event of a breach of the obligation to inspect and give notice of defects, the contractor's work shall be deemed to have been approved with regard to the defect in question.

10.8 Unless otherwise agreed, administrative activities such as security-relevant server settings, data backup and updating when setting up a content management system in web projects after handover are the responsibility of the client. Despite careful execution of the work, it is not possible to completely rule out external attacks. The client is informed of this and indemnifies the contractor in this respect.

11. freedom of design and templates

Within the scope of the order, the contractor has freedom of design within the scope of the order. If the client wishes to make changes during or after production, he must bear the additional costs.

12. final provisions

12.1 These Terms and Conditions and all legal relationships between the Contractor and the Client shall be governed by the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

12.2 If the user is a merchant within the meaning of the German Commercial Code, a special fund under public law or a legal entity under public law, Bremen shall be the exclusive place of jurisdiction for all disputes arising from the contract of use and these GTC.

12.3 Should any provision of these GTC be invalid, this shall not affect the validity of the remaining provisions.

Status: 01.06.2020