General Terms and Conditions (GTC)
of Daniel Papcke (ConsultD), Eidelstedter Dorfstrasse 3e, 22527 Hamburg (hereinafter “ConsultD”)
As of: 22 November 2017
1. Services within the Website/Facebook Package
1.1 The structure and graphic design of the website customised for the customer as part of the so-called Website Package (hereinafter “Website”) are defined by the business website in the form of a modular system. Customisation of the Website is limited to the following modules:
Module 1: Company and contact details
Module 2: Brands, trade names, logos, etc.
Module 3: Product advertising banners
Module 4: Product advertising brochures
Module 5: Descriptive texts
The scope and content of the customisations to the business website modules in each individual case shall be determined by a separate written agreement between ConsultD and the customer.
1.2 All pages of the Website shall be created by ConsultD in a single language, German.
1.3 Upon the customer’s approval of the Website, ConsultD shall take the necessary measures to ensure that the Website can be accessed on the Internet for the entire duration of the contract and shall, in particular, arrange for the Website to be stored on a server. ConsultD is free to use the services of third parties (e.g. service providers) for this purpose. If the customer does not already have a second-level domain through which the Website is to be accessible, ConsultD shall, in consultation with the customer, register an available second-level domain with the competent registry in the customer’s name and use it for the Website. Where ConsultD legitimately engages the assistance of third parties to fulfil its own obligations, ConsultD’s performance obligation shall be subject to the proviso that the contractually obligated third party performs correctly and in a timely manner.
1.4 During the term of the contract, ConsultD shall update the current product advertising on the Website up to a maximum of 54 times per year (calculated from the date of contract conclusion) at the customer’s request and according to the customer’s specifications in accordance with Modules 3 and 4 (cf. Section 1.1).
1.5 Extensions to the website (text, software) shall remain the property of ConsultD or the respective author, unless expressly agreed otherwise. There is no obligation to operate them. All additions and extensions beyond the “basic service” are tied to the term of the “basic website service”. There is expressly no obligation to hand over, provide, operate or create backup copies.
2. Services within TheBox In-Store Video
2.1 Prices apply per Box (per media player) and cover the display on one screen per Box. Duplication requires the written consent of ConsultD.
2.2 All orders must be submitted (in terms of timing, content, quality, and required data) in a manner that allows processing without further queries.
2.3 Orders are executed without content review. No liability or uncaused corrections on the part of ConsultD.
2.4 Orders that do not comply with the specifications will not be accepted, without obligation to notify the customer.
2.5 Prices always apply for full months/quarters, even if the service ends earlier. Designs/slides added during a month will be billed on a pro-rata basis.
2.6 When placing an order, the period (from–to) must be specified. If a separate deletion request is submitted afterwards, the “Slide Deletion” price item will be charged.
2.7 Devices must be placed in open air (air cooling) and blown out with compressed air every 3 months. In heavily dusty environments, significantly more often. Devices that suffer heat damage (e.g. due to dust accumulation) will be repaired at the customer’s expense.
2.8 ConsultD receives 7.5% of local third-party advertisements (e.g. local car dealership) plus setup costs and any production costs. The customer shall notify ConsultD of such revenues without being asked.
2.9 All orders must be placed in electronic form using the prescribed format (web form) and with adequate lead time (minimum 5 business days).
2.10 Changes to the advertising structure must be communicated to ConsultD with at least 10 business days’ notice. Local advertising feeds can only be offered as long as the structure is coherent, group-wide, and standardised.
2.11 Offers are adopted from the respective headquarters (e.g. via a central website) without review or correction (as of the date of advertising change). No liability is assumed for errors by third parties.
3. Device Leasing
3.1 Unless otherwise agreed, devices (TheBox media players) shall be provided to the customer under an open-ended leasing agreement against a monthly fee.
3.2 Upon termination of the contract, the Box including all accessories (stand, Wi-Fi antenna, hard drive and RAM) and packaging must be returned to ConsultD without delay and at the customer’s expense.
3.3 Provided/leased devices (e.g. TheBox media players) may only be opened or operated by authorised representatives of ConsultD.
4. Additional Services
ConsultD is only obligated to perform additional listed services if ConsultD has separately confirmed in writing to the customer that such services will be performed. They will only be performed by ConsultD against separate remuneration (see Section 6.2 below).
5. Customer’s Obligations to Cooperate
5.1 The customer shall provide ConsultD with all information and materials (e.g. brands, logos) or shall ensure that ConsultD has permission to download them from databases on the customer’s behalf and use them within the scope of the order. The customer shall ensure the legal authority to use the information and materials provided, as well as their accuracy, and shall bear sole responsibility in this regard. The customer shall notify ConsultD without delay of any subsequent changes, particularly with regard to changes in company data.
5.2 The customer is obligated to approve the service by written declaration to ConsultD after its completion, provided it meets the contractually agreed requirements and no objections can be raised that are reasonable in consideration of the mutual interests.
5.3 If required, the customer shall support ConsultD in implementing the measures, in particular enabling ConsultD to use an existing Internet domain or creating the conditions for ConsultD to register a new Internet domain in the customer’s name, e.g. authorising ConsultD to take the necessary actions vis-a-vis third parties. The customer authorises ConsultD to make entries in Internet marketplaces, directories and the like in the customer’s name that ConsultD deems conducive to improved discoverability of the Website; any approvals or consents required for this purpose shall be granted by the customer to ConsultD upon conclusion of the contract. The same applies to entries in social media (e.g. Facebook) if ConsultD has been commissioned to do so by the customer. Upon termination of the contractual relationship or for legal considerations, ConsultD is entitled to remove created social media accounts.
6. Completion Time
ConsultD shall complete the service within 10 business days of contract conclusion. The completion period shall be extended if the customer’s cooperation is delayed or if the refusal of approval results in unforeseen additional work.
7. Usage Rights
7.1 ConsultD operates the service on behalf of and in the name of the customer during the contract term and reserves all usage rights to the content created by ConsultD, the Website and the concepts underlying the Website. The customer does not acquire any rights to the Website or its underlying concepts and is not entitled, during or after the contract term, to reproduce, edit, redesign, distribute or otherwise use the Website without the consent of ConsultD.
7.2 ConsultD is entitled to place a discreet copyright notice on the Website.
8. Remuneration
8.1 The amount of remuneration to be paid by the customer for the services provided by ConsultD shall be determined by the price list of ConsultD valid at the time of contract conclusion.
8.2 Commissioned services not listed in the price list valid at the time of contract conclusion shall be billed by ConsultD on a time basis at an hourly rate of EUR 50.00 plus statutory VAT and any expenses. This also applies to additional costs arising from the customer’s failure to fulfil, fully fulfil or properly fulfil its obligations to cooperate pursuant to Section 3.
8.3 ConsultD shall invoice the customer monthly for the contractually owed remuneration. These invoices are payable immediately.
8.4 ConsultD reserves the right to change the remuneration, provided that ConsultD notifies the customer of such changes two months before they take effect; such notification may also be in the form of an email circular. If the customer does not object to the notified change within this two-month period, the change shall be deemed approved; ConsultD shall draw attention to this legal consequence in the notification.
8.5 Amounts are collected at the agreed intervals by direct debit.
9. Warranty
9.1 ConsultD warrants that the Website can be accessed on the Internet without disruption and errors during the contract term and, to the extent it is not based on materials or other specifications provided by the customer, is free from third-party rights.
9.2 ConsultD shall remedy disruptions and errors to the Website without delay. If this does not succeed within a period of 1 month, the customer retains the right, at its option, either to reduce the remuneration for the duration of the disruption or error, or to terminate the contract on an extraordinary basis. Further claims are excluded.
10. Liability
10.1 ConsultD shall only be liable in cases of gross negligence or wilful misconduct. This applies in particular to service interruptions or delays (e.g. server failures, failure of telecommunications equipment) due to force majeure or other events that temporarily or permanently make it impossible or unreasonably difficult for ConsultD to provide the contractually owed service. This exclusion of liability does not apply to claims for damages arising from a guarantee assumed by ConsultD or from the Product Liability Act, for damages resulting from injury to life, body or health, or in cases where this exclusion would restrict essential rights and obligations arising from the nature of the contract to such an extent that the achievement of the contractual purpose would be jeopardised.
10.2 The above limitations of liability shall also apply in favour of ConsultD’s employees, corporate bodies and vicarious agents.
10.3 The customer guarantees that the information and materials provided to ConsultD are free from third-party rights and, in particular, do not infringe any trademark, name or other intellectual property rights. The customer shall indemnify ConsultD against any claims in this regard and, if necessary, reimburse ConsultD for the costs of reasonable legal defence. The same shall apply if the customer breaches other notification obligations pursuant to Section 3.1.
11. Contract Term and Termination
11.1 The contract is concluded for an indefinite term.
11.2 The customer may terminate the contract with 3 months’ notice to the end of a month. Termination must be made by written declaration to ConsultD.
11.3 Upon expiry of the contract term, ConsultD is entitled to deactivate and delete the Website. ConsultD is further entitled, but not obligated, to delete the entries it has arranged (e.g. entries in social media, directories, marketplaces). The same applies to personal data of other participants and other interested parties lawfully collected in connection with the use of the Website or social media and the like.
12. Miscellaneous
12.1 The customer grants permission to be included in internal newsletters.
12.2 The customer grants ConsultD permission to use the company name and logo, owner name, image and video material for its own marketing across all channels, including Facebook and web, also within the framework of paid advertising.
12.3 All access credentials provided by ConsultD to the customer must not be shared. It is prohibited to grant third parties access to protected areas or to share access credentials.
12.4 ConsultD may visibly display the text “TheBox – successfully made by ConsultD.de” or similar to end customers.
12.5 ConsultD may display its own advertising, e.g. “TheBox – successfully made by ConsultD.de” or similar, visually to end customers.
12.6 Price adjustment clause: An annual price adjustment shall be made in accordance with the official inflation rate “Producer Price Index for Services” of the Federal Statistical Office, if the value is > 0% compared to the previous year’s value (calendar year).
13. Final Provisions
13.1 This contract contains all agreements made between the parties regarding the subject matter of the contract. No oral side agreements exist.
13.2 Amendments and additions to this contract, including this provision, require written form.
13.3 The place of jurisdiction is the registered office of ConsultD.
13.4 Should individual provisions of this contract be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by the valid or enforceable provision that comes closest to the economic intent of the invalid or unenforceable provision.