GENERAL TERMS AND CONDITIONS (GTAC)

 

Release September 2019

 

 

1. scope of application

 

 

1.1 These General Terms and Conditions apply to all business relations between Ado Nolte and its customers, insofar as they are entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

 

 

1.2 These General Terms and Conditions regulate the provision or execution of all current and future services and deliveries of the contracting parties. They shall be deemed accepted upon placement of the order.

 

 

1.3 These General Terms and Conditions shall apply to future transactions in the version valid at the time the contract is concluded. The current version can be downloaded from the Internet at www.focusedmarketing.de .

 

 

1.4 The General Terms and Conditions of Ado Nolte shall apply exclusively to the contract; other purchase or other customer terms and conditions shall not become part of the contract, even if Ado Nolte does not expressly object. Verbal collateral agreements do not exist. Subsequent agreements which amend or cancel these GTC must be made in writing. A verbal waiver of the written form is excluded.

 

 

2. offers, conclusion of contract, form

 

 

2.1 All offers made by Ado Nolte are subject to change, unless other individual agreements are made.

 

 

2.2 Orders shall be placed at least in text form (e.g. e-mail) and by the customer. The contract is not concluded until Ado Nolte has accepted the order. This can take place expressly, in particular by sending an order confirmation, or in accordance with § 151 BGB without an express declaration, in particular by commencing order processing.

 

 

2.3 Ado Nolte is entitled to subcontract the execution of orders.

 

 

3. cooperation services of the customer

 

 

3.1 The customer has the obligations to cooperate expressly stated in the offer and supports Ado Nolte in the performance of its contractual obligations. If the offer results in further acts of cooperation on the part of the customer which are not expressly listed in the offer, but which are incumbent upon the customer by the nature of the matter and are recognisable to the customer, these shall be treated in the same way as expressly stated duties of cooperation. The customer's obligations to cooperate shall include at least the timely provision of information, materials, data and content by the customer which are necessary for the performance of the contractual services by Ado Nolte.

 

 

3.2 Upon Ado Nolte's request, the customer shall also be obliged to release drafts and intermediate results, insofar as these can be judged to be meaningful. The release shall at least take place in text form (e.g. e-mail). Requests for changes after release represent a change in performance.

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4. changes in services

 

 

4.1 Updates and subsequent changes to offers and orders require the consent of both parties at least in text form (e.g. e-mail). The parties may not withhold their consent in an unfaithful manner. The service changes become part of the contract between Ado Nolte and the customer as an additional agreement.

 

 

4.2 All contractual services provided by Ado Nolte up to the time of the change in performance shall be remunerated in accordance with the agreement valid up to the time of the change in performance, irrespective of whether the customer can actually use these services. This obligation to pay remuneration for the part of the service that cannot be used by the customer shall not apply if Ado Nolte was requested to change the service and this change in service has rendered the previous service useless for the customer.

 

 

5. benefits and breach of obligations

 

 

5.1 The individual services to be provided by Ado Nolte are set out in the description of services in the offer. If the contractual agreement, whether express or natural, contains the preparation of drafts or concepts which require the customer's opinion, the preparation of these drafts or concepts shall be contractually remunerated appropriately, unless a contractually agreed and appropriate remuneration rate can be found. Ado Nolte has the freedom to provide its contractually owed creative services. Unless otherwise agreed in the offer, a maximum of two (2) drafts or concepts shall be contractually owed.

 

 

5.2 Ado Nolte is not responsible for delays in performance due to circumstances within the sphere of responsibility of the customer, in particular due to missing or delayed fulfilment of the customer's obligations to cooperate, or due to force majeure. Ado Nolte shall notify the customer immediately of any delays in performance due to force majeure. Cases of force majeure shall also include industrial action by third parties (strike, lockout) and non-delivery by the upstream supplier for which Ado Nolte is not responsible. If the customer is in default of acceptance or culpably violates other obligations to cooperate, Ado Nolte shall be entitled to demand compensation for the damage incurred. Ado Nolte reserves the right to assert further statutory claims or rights. In particular, Ado Nolte reserves the right to withdraw from the contract after setting a reasonable grace period. In such cases, Ado Nolte shall be entitled to the contractual remuneration accrued up to the time of rescission, irrespective of whether the customer actually uses or can use the services provided up to that time. Furthermore, in such cases Ado Nolte shall be entitled to reimbursement of expenses already incurred in reliance on the existence of the contract for its performance. The same applies to the indemnification of third party claims against which Ado Nolte has entered into obligations in reliance on the existence of the contract for its performance.

 

 

6. remuneration

 

 

6.1 If a fixed remuneration has been agreed, Ado Nolte shall be entitled to invoice partial payments for self-contained and independently usable parts of the agreed service.

 

 

6.2 If remuneration is agreed according to time expenditure, invoicing shall be made monthly. In case of doubt, the remuneration based on time spent shall also apply to journeys by Ado Nolte to the customer or to places designated by the customer.

 

 

6.3 All prices for contractual services of Ado Nolte are net prices. In addition, the applicable statutory value-added tax and the expenses incurred in providing the contractual service such as travel costs, travel expenses, out-of-pocket expenses, etc. shall be invoiced unless otherwise agreed in the contract.

 

 

6.4 Ado Nolte shall not be liable for the correctness of cost estimates unless expressly agreed otherwise.  A significant exceeding of the estimate in the sense of § 650 of the German Civil Code (BGB) shall only exist if the estimate is exceeded by more than fifteen (15) percent.

 

 

6.5 The customer shall immediately pay any expenses which Ado Nolte has incurred for the customer in accordance with the order or which Ado Nolte is legally entitled to incur. Ado Nolte shall have a right of retention on the item purchased by the customer until full payment has been made.

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7. terms of payment

 

 

7.1 Receivables are due immediately. Unless otherwise expressly agreed, all services shall be rendered without discount within fourteen (14) days after receipt of the invoice. The statutory regulations shall apply with regard to the prerequisites and consequences of the delay.

 

 

7.2 The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or acknowledged by Ado Nolte.

 

 

8. intellectual and other property protection

 

 

8.1 Concepts, drafts, presentations and cost estimates (hereinafter: drafts) created by Ado Nolte and transmitted to the customer shall be deemed to be protected by copyright between the customer and Ado Nolte in favour of Ado Nolte even if the drafts do not have the level of creation required for legal copyright protection. The Customer may not make the templates accessible to third parties without the consent of Ado Nolte.

 

 

8.2 The transfer of contractually owed rights of use or ownership to the work results of Ado Nolte shall be subject to the condition precedent that the remuneration for the respective work results is paid in full. A remuneration paid on the basis of time spent shall apply to the work results completed within the invoiced period.

 

 

8.3 Notwithstanding the rights of use transferred by Ado Nolte to the Customer in respect of the contractual Work, Ado Nolte shall remain entitled to refer to its contractual Work in accordance with Clause 12 (Confidentiality Obligation), to name the Customer and to safeguard its legitimate interests in an appropriate manner and to archive the Work internally.

 

 

9. exclusion and limitation of liability

 

 

9.1 Ado Nolte shall not be liable for damage to property or financial loss caused by slight negligence. This shall not apply in the case of an obligation which is essential for the proper performance of the contract and on the observance of which the customer can regularly rely; in this case, Ado Nolte's liability for material damage and financial loss caused by slight negligence shall be limited to the foreseeable damage typical for the contract.

 

 

9.2 Liability pursuant to the Product Liability Act and the statutory distribution of the burden of proof shall remain unaffected by these provisions.

 

10. limitation of warranty claims

 

 

Warranty claims of the customer against Ado Nolte are subject to a limitation period of 12 months from the beginning of the statutory limitation period. This shall not apply to warranty claims in respect of buildings or an object which has been used for a building in accordance with its usual purpose and which has caused the building to be defective. The statutory limitation period shall also apply to works whose success consists in the provision of planning or monitoring services for buildings or in relation to a defect which Ado Nolte fraudulently concealed, or also in so far as Ado Nolte has assumed a guarantee for the quality of the work.

 

 

11. social media and other web contents

 

 

If Ado Nolte takes over the maintenance and updating of social media (facebook, twitter, etc.) or other websites for the customer, the customer or a third party commissioned by him remains the provider of this content responsible to the public and is named as such in the respective web imprint. During the term of the contract, Ado Nolte has the right to be named in the imprint under the provider details as the supporting agency with a link to the homepage of Ado Nolte. Ado Nolte is obliged to hand over the access data to the contractual web content to the customer at the end of the contract period.

 

 

12. confidentiality obligation

 

 

12.1 The contracting parties mutually undertake to keep confidential any internal information (in particular trade and business secrets, information recognisable as confidential or marked as such) provided by the other party during the initiation or execution of this contract.

 

 

12.2 The confidentiality obligation shall also apply to the internal information of the Customer (tender documents, strategy papers, business agendas, etc.) which is/became accessible to the parties within the framework of the initiation or execution of this contractual relationship.

 

 

12.3 The parties shall take appropriate measures to maintain secrecy, in particular to immediately destroy any internal information of the other party or the customer that is no longer required and to otherwise store such information secured against inspection by third parties.

 

 

12.4 The confidentiality obligation shall continue to apply beyond the term of this contract.

 

 

12.5 Such information is excluded from the above obligation to maintain secrecy,

- which were already in the possession of the other Party prior to notification by that Party,

- which were already publicly known at the time of the notification,

- which become generally known after their notification through publication or in any other way, unless this is due to a breach of the confidentiality obligation regulated in the present contract by one of the contracting parties.

 

 

13. place of jurisdiction, applicable law

 

 

13.1 The place of performance for the deliveries and services of Ado Nolte and for payments by the customer to Ado Nolte shall be the registered office of Ado Nolte at the time the contract is concluded. The place of jurisdiction shall be Hamburg.

 

 

13.2 The contract existing between Ado Nolte and the customer and the resulting legal relationships shall be governed by German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The German version of a contract text is authoritative.

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Translated with deepl.com/translator