Terms and Conditions

diesdas.digital GmbH

Oranienstraße 6

D-10997 Berlin

[☞ Here you will find the German Version]

1. Definitions, General

1.1 This agreement shall serve as the basis for the cooperation of the parties in the areas of activity of diesdas.digital GmbH.

1.2 The party who performs the principal service and who shall receive the remuneration is the “contractor” or “agency;” in the present case this is diesdas.digital GmbH. The party who receives the principal service and who must pay the remuneration is the “principal.” The contractual relationship between the two parties is the “order”.

1.3 For all orders regarding services between the agency and the principal, the following General Terms and Conditions (GTC) shall apply exclusively. They are deemed agreed upon unless the principal objects them immediately after receipt. They are also deemed agreed upon for all subsequent legal transactions upon acceptance of an order by the agency. They apply even if the principal uses General Terms and Conditions and if such contain provisions that conflict with or deviate from the provisions cited in the GTC listed herein. Exceptions from such require a clear written confirmation by the agency. An acknowledgement by the principal while referring to its General Terms and Conditions is hereby expressly objected to.

1.4 The following GTC apply independent of whether the agency acts on his own behalf or on behalf of a third party and independent of whether the agency acts for its own account or for the account of a third party.

2. Subject matter of the Contract, Scope of Services, Obligations of the Principal

2.1 The agency shall perform its services on the basis of orders that must be commissioned separately. The subject matter, the scope and the details of the order are based on the specifications of the agency as outlined in the order that in turn are based on the provisions of these GTC. With the approval of a proposal/cost estimate submitted by the agency the services described therein are deemed agreed upon. The agency does not owe any services that were not expressly agreed upon individually. The handing over of so-called »open« files is in general not owed.

2.2 The principal shall cooperate actively with the agency and is obligated to provide to the agency all documents that are required for the fulfillment of the order in due time and in the agreed upon and required scope as well as provide any and all other assistance in due time and free of charge. He is liable for the fact that he is authorized to provide to the agency the documents to be used by the agency and in this regard shall indemnify the agency from claims for compensation of third parties. The agency is not obligated to verify the correctness of information. If inaccurate, incomplete, amended or missing information of the principal influence the work of the agency in that work must be repeated or is delayed in part or as a whole, the principal shall bear any loss arising from such.

2.3 Suggestions and instructions of the principal do not constitute any co-copyright and have no influence on remuneration.

2.4 A review of the lawfulness of the work result is only owed by the agency if this is expressly agreed upon between the parties. Arising costs and fees are to be borne by the principal. This also applies for the commissioning of third parties (for example attorneys at law or patent attorneys) at market rates. Unless otherwise agreed upon, a service is deemed performed according to the contract even if it is not registrable or patentable.

2.5 The agency is authorized to use third parties as subcontractors for the performance of services. The agency shall provide to the principal the name of any third party. The principal is only authorized to reject a third party to the extent that he has objected within a period of one week in writing and if an important reason is given in regard to the third party.

2.6 If the principal terminates the contract prematurely, Section 649 BGB [German Civil Code] shall apply in regard to remuneration.

3. Deadlines, Acceptance regarding Work Performance, Payment Date of Remuneration, Delays

3.1 If deadlines and delivery dates are not expressly agreed upon in a fixed fashion, they are to be seen as non-binding guidance.

3.2 If the agency owes a certain work result, i.e. a customizable work, the principal is obligated to accept. Acceptance is deemed executed if it is not declared or refused within seven days after delivery or provisioning and notification via email to the principal to the extent that the work result essentially corresponds to the made agreements. Acceptance must not be refused on the basis of insignificant defects. Insignificant defects are those that neither cancel the usability of the service nor significantly impair such usability. If there are major deviations, the agency shall remedy such deviations in an appropriate amount of time and shall resubmit the work result for acceptance. At the latest with payment or utilization of the work acceptance is deemed executed. Acceptance must not be refused on the basis of design reasons. In line with the order, there is freedom of scope.

3.3 Complaints regarding obvious defects must be asserted within 14 days after delivery of the work in writing with the agency. Dispatch in due time of the notice of defect is sufficient to comply with the time limit.

3.4 Remuneration is due upon delivery of the work if such work was performed in accordance with the contract.

4. Remuneration, Travel Expenses

4.1 All services the agency performs for the principal require payment unless express agreed upon otherwise. Owed remuneration can be deduced from the offer. To the extent that no remuneration is determined for a service, the valid price lists of the agency are deemed agreed upon, alternatively relevant market prices.

4.2 If the principal requests special or additional services during or after work performed by the agency, this results in an additional remuneration obligation. Additional effort of the agency is invoiced according to the agreed upon hourly rates. In particular, requests for changes and amendments of the principal represent additional effort, exceeding the scope agreed upon in the specifications.

4.3 If the execution of the order is delayed for reasons the principal is responsible for, the agency may request a suitable increase in remuneration.

4.4 Remuneration is a net amount that is to be paid plus statutory VAT. Additional fees, customs duties and other dues (for example artists' social security fund) are borne by the principal – even if collected retroactively.

4.5 Travel expenses and allowance for travel that is to be made in connection with the order and that was coordinated with the principal are to be reimbursed by the principal.

5. Payment, Invoice

5.1 The agency shall invoice their services after fulfillment of such services. Prices are net prices plus statutory VAT. Additional fees, artists' social security contributions, fees of GEMA [German Society for Musical Performing and Mechanical Reproduction Rights] or other collecting societies, customs duties and other dues are borne by the principal – even if collected retroactively.

5.2 The agency is authorized to request advance payments and installment payments according to performed work. Partial performance may be invoiced after such performance. Expenses and costs are due as soon as invoiced.

5.3 Payment is carried out within 14 days after invoicing without deduction unless other payment terms were agreed upon. Complaints regarding invoices must be submitted to the agency in writing within a cutoff period of 14 days after receipt of the respective invoice.

5.4 If the principal uses the designs and services of the agency in a scope other than agreed upon, the principal is obligated to pay reasonable remuneration for the additional use. Determining such reasonable remuneration is the responsibility of the agency and may be reviewed by a court.

5.5 To the extent that contracts are entered into regarding external services in the name of and for the account of the principal, the principal is obligated to indemnify the agency between the parties from any and all liabilities that arise from entering into said contract, in particular from the obligation to pay for external services.

5.6 The agency is authorized to withhold the performance of services if the principal is in default regarding the acceptance of work performed or partial performance or payment of accepted work performed.

5.7 The principal is not authorized to offset reciprocal receivables inasmuch as the counter claim is not legally determined, ready for a decision or undisputed and inasmuch as it is not a claim for damages that is asserted against the asserted claim.

6. Copyrights, Exploitation Rights, Ancillary Copyrights

6.1 With full payment of the agreed upon remuneration, the principal acquires the simple exploitation right as well as the transferable authorization to publish work performed by the agency under this contract. If no contractual utilization period is agreed upon, the exploitation right is deemed agreed upon without a time limit. Without any other agreement, the exploitation rights are limited to the Federal Republic of Germany. The work of the agency must only be used for the agreed upon type of exploitation and the agreed upon purpose in the agreed upon scope. Without an express agreement, the purpose of the contract is the purpose indicated by the principal at the time the order was placed. Any exploitation exceeding the agreed upon scope of exploitation (in terms of time, location and content) must be compensated in any case by way of royalty payment.

6.2 The agency has the exclusive exploitation right regarding its designs even if they do not reach the level of creativity required for copyright protection. Any transfer of exploitation rights must be made in writing.

6.3 The work of the agency including the author's designation, be it in regard to the original or any reproduction - must not be edited or changed in view of content without approval. Any imitation, even in part, of a legally protected work result is prohibited.

6.4 All designs, conceptions and other works of the agency are entrusted to the principal in the sense of Section 18 Subsection 1 UWG [Act Against Unfair Competition]. Unauthorized exploitation or communication to third parties outside of the contractual agreement of the parties is prohibited. Any transmission or partial transmission of exploitation rights and any granting of sublicenses requires the prior written approval of the agency.

6.5 Repeated use (e.g. for reprints) or multiple use (e.g. for another project) must be compensated; such use requires the approval of the agency

6.6 In the event that for the creation or implementation of work results of the agency exploitation rights of third parties or the consent of third parties are required, the agency shall attempt to obtain such rights and/or the consent of such third parties in the name of and on behalf of the principal to the extent that this is possible. Obtaining of such rights is carried out, if not expressly agreed upon otherwise in the form of text, in the scope required for the fulfillment of the contractual purpose in terms of time, location and content. The principal shall bear additional claims pursuant to Sections 32/32a UrhG [German Copyright Act].

6.7 For the creation of software, the agency uses licensed software of third-party providers. The agency shall indicate to the principal – at the discretion of the principal – the licenses to be obtained or shall obtain the corresponding licenses for the principal at the expense of the principal. Furthermore, the agency uses software in part that is under a Creative Commons license and that is offered for use free of charge. Regarding such software components, in the first instance, the agency shall check whether the software is licensed for commercial use. A deeper review regarding additional instances will not be carried out.

6.8 The agency is entitled to receive information regarding the scope of use towards the principal.

6.9 The agency is authorized to use work results and advertising means created, designed or conceptualized by the agency for an indefinite period of time for its own advertising purposes for its internet presence (including social networks) as well as on data carriers or print products created by the agency for its own advertising purposes. This also includes publication in magazines, on websites of any kind, in videos as well as the right to participate in competitions. The authorization also extends to freelance employees used by the agency.

6.10 If the principal rejects designs or work results or does not execute them, any exploitation rights for such remain with the agency. This also applies in particular to services of the agency that do not fall under any legal protection.

7. Liability, Warranty

7.1 The agency is only liable in the event of intent and gross negligence for damage caused by the agency or its vicarious agents. In addition, the agency is only liable in the event of slight negligence to the extent that an obligation is violated whose observance is of special importance for the fulfillment of the purpose of the contract (cardinal obligation). Such liability is limited to predictable or typical damage.

7.2 Liability for warranty claims for defects is limited to 12 months after delivery.

7.3 Liability limitation as well as reduced warranty do not apply for a lack of guaranteed features, fraudulent intent, harm to body, life or health or liability pursuant to the Product Liability Act.

7.4 Liability is excluded for damage that occurs as a result of refutation by the agency due to honest mistakes or misprints or transmission errors.

7.5 For orders awarded to third parties in the name of and for the account of the principal, the agency is not liable in any event towards the principal. In such cases, the agency is merely a broker.

7.6 The agency is not liable in any event for statutory claims of authors regarding the retroactive increase of remuneration pursuant to Sections 32, 32a UrhG; the principal shall indemnify the agency from such claims on first demand.

7.7 The principal is responsible for the release for production or publication. If, in exceptional cases, the principal delegates such a release in part or as a whole to the agency, the principal shall indemnify the agency from any liability.

7.8 The principal shall inspect work results in view of potential defects and release them if applicable.

7.9 The principal is obligated to inspect in an independent fashion the work created by the agency in terms of its functional efficiency and realizability in production. The agency is liable for damage caused by its design, its concept, its strategy as well as its programming or by the construction proposed by the agency only in the event of intent or gross negligence.

7.10 The principal is obligated to review independently and diligently the lawfulness of the designs and other works before using the designs and other works in business transactions. Unless in the event of intent and gross negligence, the agency is not liable for the lawfulness of its designs and other works. This particularly applies in the event that advertising measures violate the provisions of competition law and industrial property rights including copyright. The agency is not obligated to any legal consultation. It shall point out to the principal any legal concerns to the extent that such concerns are known to the agency. Any further liability of the agency is waived for work to be reproduced and released by the principal.

7.11 Sending and returning of work and templates is done at the risk and on behalf of the principal.

7.12 After announcing provisioning, the principal must accept and take over the development result at the agency or at another location. If the principal is in default regarding acceptance, any risk is transferred to the principal after this point in time.

7.13 If the agency complies with its obligation to remedy any defects, the principal does not have the right to demand a reduction in remuneration or the cancelation of the contract unless the rectification of any defects has failed.

7.14 The principal guarantees that he is authorized to use all templates provided to the agency. In the event that he should not have such authorization contrary to any guarantee given by the principal, the principal shall indemnify the agency from any and all claims for damages of third parties.

7.15 The agency is not obligated towards the principal to archive or retain the created files beyond any measure required to fulfill any contractual obligations. With handing over the recordings to be created, the risk of loss is transferred to the principal to the full extent.

7.16 The contractual liability claim lapses after one year pursuant to the beginning of the statutory limitation period. This does not apply in the event of intent and negligence of the agency, for its legal representatives or vicarious agents as well as harm to life, body or health. In such cases, statutory limitation shall apply.

8. Property, Obligation to return, Surrender of Data

8.1 For work results only exploitation rights are granted, however, property is not transferred unless otherwise agreed upon or in the event that the purpose of the contract determines otherwise. The originals must be returned to the agency at the latest three months after delivery without any defects unless otherwise agreed upon in writing.

8.2 In the event of damage or loss, the principal shall reimburse the costs required for recreation. Claiming additional damage remains unaffected.

8.3 Data and files created in fulfillment of the contract remain the property of the agency. The agency is not obligated to surrender data carriers, files and data. If the principal wants for the agency to make available to him data carriers, files and data, this must be agreed upon in writing and must be compensated separately.

8.4 The agency is not obligated to surrender data carriers, files and data. If the principal wants for the agency to make available to him data carriers, files and data, this must be agreed upon in writing and must be compensated separately.

8.5 If the agency has made available data carriers, files and data to the principal, such may only be amended and changed with the consent of the agency and the employee or subcontractor performing work on behalf of the agency.

8.6 Unless in the event of intent and gross negligence, the agency is not liable for defects caused to data carriers, files and data. Liability of the agency is excluded regarding defects to data carriers, files and data occurring during data import to the system of the principal.

8.7 Risk and costs of the transport of data carriers, files and data online and offline shall be borne by the principal.

9. Specimen Copies and Author Credit

9.1 The agency is entitled to the surrender of images of the items or digital products that are produced with the help of its designs, even for the transfer of the exclusive exploitation rights.

9.2 Unless otherwise agreed upon in writing, the agency has the right to be named as author and to be given credit in publications pertaining to the product. Its author's designation is, as stated by the agency, to be indicated on the products that were produced according to its designs if and to the extent that this is technically feasible.

10. Confidentiality, Data protection

10.1 The parties must maintain strict confidentiality regarding all information, knowledge and experiences they gained knowledge of in connection with the execution of the contract, such as in particular company secrets, documents, know-how acquired from others as well as all corporate and business matters and other information (e.g. tasks, business processes, experiences and knowledge) of the disclosing party, his customers or end customers towards unauthorized third parties, and must not process such information nor have third parties process such information; furthermore, access must not be given to third parties regarding such information.

10.2 Exempt from this obligation is confidential information that

a) was already demonstrably known to the recipient at the time the contract was entered into or that become known afterwards by way of a third party without violating a confidentiality agreement, statutory regulations or directives from authorities;

b) is publicly known at the time the contract is entered into or that is made public afterwards to the extent that this is not based on a violation of this contract;

c) must be disclosed on the basis of statutory regulations or at the order of a court or authority. To the extent that it is permissible and possible, the recipient obligated to disclose shall inform the respective other party beforehand and shall give said party the opportunity to object to such disclosure.

d) is released in writing by both parties to the contract or by one of the parties to the contract, however, at the latest five years after the notification unless a longer obligation to maintain confidentiality results from the nature of the information.

10.3 The obligation to maintain confidentiality also includes the time after the end of collaboration of the parties.

10.4 Mentioning of or advertising with the company of the principal in publications of the agency as well as the submission of work results to competitions by the agency is permitted. The aforementioned applies, amongst others, for studies, reference and customer lists as well as advertising material in a printed or electronic form published by the agency during the term of this contract.

10.5 The principal confirms that personal data transmitted by the principal or by third parties at the request of the principal to the agency was collected and processed according to the relevant provisions of data protection, that for example the required consent of data subjects is on hand and that the use of such data by the agency in line with the placed order does not violate any of these provisions nor exceed the scope of granted consent.

10.6 The principal agrees that personal data and other information such as point in time, quantity and duration of the connections, access passwords, uploads and downloads are stored by the agency for the term of this contract to the extent that such is required or helpful for the fulfillment of the contract.

10.7 The principal shall secure data and programs respectively prior to handing them to the agency to enable recovery in the event of data loss.

11. Termination of Contract

If the principal terminates the contract prematurely, the agency shall receive the agreed upon remuneration; however, the agency must give credit for saved expenses or executed or maliciously foregone replacement orders (Section 649 BGB).<br>

12.Final Provisions

12.1 If one of the provisions of this GTC is invalid in part or as a whole, the validity of the remaining provisions remains unaffected. In place of the invalid provision a valid provision is deemed agreed upon that comes closest in the economic sense to the one agreed upon by the parties.

12.2 Place of fulfillment and exclusive place of jurisdiction for all legal disputes arising between the parties from or in connection with this contract is the place of business of the agency.

12.3 The laws of the Federal Republic of Germany shall apply, excluding United Nations Convention on Contracts for the International Sale of Goods.

12.4 Only the [German version](https://www.diesdas.digital/de/legal/terms-and-conditions) of this contract shall be binding; the English version only serves informational purposes.