General Terms and Conditions of Business
Scope, subject matter of the contract
- Our General Terms and Conditions of Business (Terms and Conditions) apply exclusively; we shall not recognise any terms and conditions that conflict with or deviate from our Terms and Conditions unless we have expressly agreed to the validity thereof in writing. Our Terms and Conditions shall also apply if we execute the contract for the customer without reservation in the knowledge that the terms and conditions of the customer conflict with or deviate from our Terms and Conditions.
- Our Terms and Conditions shall only apply to transactions which we conclude with companies (Section 14 German Civil Code), but not with consumers (Section 13 German Civil Code).
- All (special) agreements made between us and the customer for the purpose of executing a contract shall be recorded in writing and deemed to be functional and requirement specifications. The content of our order is always defined in the written offer/written order confirmation (if the term “in writing” or “written” is used, text form is sufficient, Section 126 b German Civil Code) but not in verbal agreements.
- Our Terms and Conditions shall also apply to all future business transactions with the customer.
Offer and conclusion of contract, offer documents
- The customer’s order represents a binding offer, which we may accept within two weeks by sending an order confirmation or by handing over the ordered work. Previously submitted offers or cost estimates by us are subject to change without notice.
- We reserve the property rights and copyrights to illustrations, drawings, calculations, source codes and other documents. This also applies to written documents marked as being confidential. The customer requires our express written consent to pass these on to third parties.
- In the discussions held with the customer prior to the offer, an agreement must be reached with the customer on the basic style of the performance results, which shall also be set out in the offer and/or in the order confirmation and which the customer must adhere to.
Rights of use, copyright, contractual penalty
- The scope of the rights of use granted shall be defined in terms of subject matter, territory and time. Unless otherwise defined in writing in the order, the customer shall be granted simple, non-transferable, irrevocable rights of use without limitation in terms of time, territory and content for all types of use known at the time of the conclusion of the contract and for types of use still unknown in respect of all performance results provided in accordance with the respective contract. As a basic rule, our performance results may not be modified without our prior written consent. Even in the event that the customer receives an exclusive right of use to the performance results by means of a separate written contractual agreement (beyond the Terms and Conditions), we are entitled to use the performance results for appropriate self-advertising, in particular in the area of the social media, on our website and for promotional purposes.
- We reserve the copyright as well as the right to contents, descriptions and proposals contained in concepts, manuscripts, source codes and presentations, regardless of the form thereof. Any imitation, even of parts, is not permitted. A breach of this provision entitles us to demand a reasonable contractual penalty, which shall be determined by us and reviewed by the customer through the competent court.
- When using our performance results, we are entitled to be named as the originator in a manner to be determined by us at our reasonable discretion in accordance with standard industry practice.
- The prices agreed in the contract are authoritative.
- Unless otherwise agreed in the special contract between the customer and us, 50% of the agreed remuneration is due for payment upon conclusion of the contract. The remaining remuneration is payable within seven days of acceptance. The statutory provisions concerning the consequences entailed in payment default shall apply.
- In accordance with statutory provisions, we may demand a payment on account in the amount of the value of the work performed for self-contained parts of the performance.
- The customer is only entitled to rights of set-off if its counterclaims have been established as legally binding, are undisputed or have been recognised by us in writing. A right of retention is excluded, unless the counterclaim of the customer originates from the same contractual relationship and is undisputed or legally binding.
Period of performance, content of performance
- As a basic rule, the execution or completion deadlines we specify are not binding fixed dates, but merely “approximate” dates within which we will deliver, unless expressly agreed otherwise. In the event of strikes and cases of force majeure, execution or completion deadlines shall be automatically extended for the duration of the delay.
- Every offer we make contains a maximum of one revision per item at our discretion (example: the price for three songs includes one revision per song or for a game character with four animations one revision per animation).
- Performance results produced by us shall only be tested on commonly known standard browsers as a basic rule.
- Until payment in full, we on principle only hand over our performance results with a watermark (or in the case of music/sound effects, with background noise), which is only deleted once the order has been paid in full.
The customer’s obligations to cooperate
- The customer is obliged to provide all the necessary cooperation, in particular all the contents and materials to be included in the respective performance result, the inclusion of which is requested by the customer, in a form or quality suitable for implementation in the programming owed in each case in accordance with the agreements made or deliver these immediately on request and immediately make available on request all other information, documents and data required for the performance, including access data and suitable test data.
- We shall inform the customer immediately if it fails to comply with its obligations to cooperate, fails to do so in good time or fails to do so completely and if, in our opinion, this has consequences for the provision of the contractual performance.
- If the customer fails to comply with its obligation to cooperate, fails to do so in good time or fails to do so completely, any agreed completion deadlines shall be extended accordingly and we shall not be responsible for the delay in performance.
- The customer is solely responsible for ensuring that the contents/materials provided by it do not violate any laws or rights of third parties. If we gain knowledge that contents/materials provided violate laws or rights of third parties, we are entitled to stop the work. We shall then inform the customer accordingly. Should claims be filed against us based on possible legal violations, the customer shall be obliged to indemnify us from any liability and reimburse us for any expenses and damages incurred by us as a result, including the costs of legal defence.
- The customer shall ensure that we are provided with the names of staff authorised to make decisions for the necessary coordination discussions and that they are available for such discussions.
- The customer is responsible for creating sufficient backups.
- Where relevant, the customer undertakes on behalf of its third contractual partners to pay in a correct and timely manner all copyright royalties arising in connection with the exploitation of the performance results to authors, music publishers and/or collecting societies (GEMA, GVL etc.).
- Where available, the customer is obliged to immediately approve the specifications, the basic concept and/or the detailed structure in text form, insofar as these largely correspond to the requirements on which the contract is based.
- Upon completion, the customer is obliged to accept the work, provided that the performance result is largely produced in conformity with the contract.
- Acceptance shall be deemed to have been granted if the customer does not give notice in text form of any material defects within a period of three weeks (test phase) after notification of completion by the contractor. In the notification of completion, we shall inform the customer that acceptance shall be assumed after expiry of the period.
Rights based on defects, duty to inspect and give notice of defects
- Rights based on defects are excluded insofar as the defect is based on material/content provided by the customer or other specifications of the customer. The same applies if the customer modifies our performance result or has it modified by third parties, unless it proves that a modification will not significantly complicate our analysis and processing efforts and the defect was already inherent in the performance result at the time of acceptance.
- When producing the performance result, we ensure to the best of our knowledge and belief that we do not violate rights of third parties. However, we cannot assume any liability in this connection. Instead, the customer is responsible for having our performance result checked before using it to ensure that no rights of third parties are violated. The customer is also obliged to ensure that all material/contents it provides to us do not violate any rights of third parties.
- The following applies specifically to video games created by us: We assume no liability for the game causing damage to the customer’s terminal device. We would like to point out that the excessive use of a video game can lead to physical or psychological disadvantages/harm to the user; the video game should thus only be used to a reasonable extent. It is not possible to guarantee that the video game will function on every conceivable terminal device. Even the terminal devices recommended by us (e.g. smartphones) are merely a recommendation without any guarantee.
- In all other respects, the following applies: For defects, we shall, at our discretion, provide a warranty either by remedying the defect or by supplying a new production. If we seriously and finally refuse performance or if we refuse to remedy the defect and render subsequent performance on the grounds of disproportionate costs or if this has objectively failed, the customer may, at its discretion, only demand a reduction of the remuneration (lowering of the purchase price) or rescission of the contract (withdrawal).
- Performance results provided by us must be inspected immediately after delivery by the customer, insofar as this is feasible in the normal course of business. Defects that are not recognisable during the inspection must be notified immediately after the discovery thereof. Any defects must be notified in writing. The defect is deemed to have been notified without delay if such notification is given within ten days. If the customer fails to notify the defect, any claims for defects shall be excluded.
- Claims and rights arising from defects become statute-barred twelve months after delivery. Notwithstanding the foregoing, the statutory limitation periods for claims for damages due to loss of life, physical injury or damage to health shall apply. The statutory limitation periods also apply to claims for other damage based on an intentional or grossly negligent breach of duty by us or our vicarious agents.
- Our liability for contractual breaches of duty as well as for tort is limited to intent and gross negligence as well as to compensation for typically occurring damage. This shall not apply in the event of loss of life, physical injury or damage to the health of the customer, claims based on a breach of cardinal obligations, i.e. obligations which arise from the nature of the contract, and any breach of which endangers the achievement of the purpose of the contract and compensation for damage caused by delay (Section 286 German Civil Code). In the event of damage caused by delay, we shall be liable for any degree of fault, whereby in the event of a delay in delivery, liability shall be limited to 0.5% of the gross delivery value for each completed week of delay as part of a lump-sum compensation for delay, but not more than 5% of the gross delivery value. In the event of a breach of material contractual obligations, liability shall be limited to the damage that is normally foreseeable.
- The aforementioned exclusions of liability also apply to negligent breaches of duty by our vicarious agents.
- Insofar as liability for damages that is not based on loss of life, physical injury or damage to the health of the customer is not excluded for slight negligence, such claims shall become statute-barred within one year beginning once the claim arises.
- Claims under the German Product Liability Act remain unaffected.
Limitation of own claims
Our claims for payment of the remuneration for work performed shall become statute-barred after five years, in deviation from Section 195 of the German Civil Code. With regard to the commencement of the statutory limitation period, Section 199 of the German Civil Code shall apply.
Confidentiality, data protection
- We shall treat as confidential any information we receive from the customer before and during the contract concluded. We shall only make it available internally to those employees who need it in order to carry out their tasks in the course of the performance of the contract. After acceptance of the performance results and payment in full of the remuneration, we shall either return or destroy the information, insofar as it is in physical form, unless it is still required by us for warranty, liability or maintenance purposes.
- If we have access to personal data of the customer (or its customers) in the course of our performance of the contract, we shall observe the principles of proper data processing, in particular those under Art. 5 EU General Data Protection Regulation.
Form of declarations, place of performance, choice of law, place of jurisdiction
- Legally relevant declarations and notifications which the customer is required to submit to us or a third party must be made in writing.
- Unless otherwise stated in this contract, the place of performance and payment is our registered office. Legal provisions regarding places of jurisdiction shall remain unaffected, unless otherwise stated in the special provision set out in paragraph 3 below.
- This contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- The exclusive place of jurisdiction is the court responsible for our registered office.