General terms and conditions
§ 1 General terms and conditions
(1) The following General Terms and Conditions (hereinafter referred to as “GTC”) shall apply exclusively to entrepreneurs, legal entities under public law and special funds under public law.
(2) Vollcom Digital GmbH (hereinafter also referred to as “Vollcom Digital”) shall deliver goods or provide services exclusively under the following terms and conditions or on the basis of the individual contractual provisions, the content of which shall be determined by the parties and which shall take precedence over these General Terms and Conditions to that extent. Vollcom Digital does not recognize any conflicting general terms and conditions. These can only exceptionally become part of the contract if Vollcom Digital has expressly agreed to their validity, i.e. in text form.
(3) No verbal collateral agreements have been made by the contracting parties. Subsequent supplements or amendments to the concluded agreements require text form.
§ 2 Services of Vollcom Digital and conclusion of contract
(1) Vollcom Digital provides services for (web/software) projects, in particular in the areas of web development, online marketing and web analytics, including (web) design and online marketing measures, supplies standard software and adapts it, creates or develops custom software and provides services in the areas of consulting, maintenance, web analytics and digital marketing on the basis of these GTC. The details of the contractual services shall be specified between the parties in a separate contract and, if necessary, by means of service specifications. Insofar as the subject of the order is the delivery of third-party standard software or open source software, the delivery shall be made, if applicable, supplementary and primarily on the basis of the separate (license) conditions of the third parties or the applicable open source software licenses.
(2) Orders shall come into effect with the inclusion of these GTC either with the acceptance of the offer by the customer (hereinafter “Customer”) or the acceptance of the Customer’s order by Vollcom Digital.
(3) We reserve the right to make technical and/or design deviations from descriptions and information in brochures, catalogs or other documents as well as model, design or material changes.
§ 3 Services of the Client
(1) The Customer will be obliged to provide appropriate cooperation. Prior to the start of the execution of the order, he will appoint a responsible person who will be the first contact person for Vollcom Digital for all questions and who will have all decision-making powers and authority necessary for the purposes of the execution of the order.
(2) The customer will be responsible for the software and hardware to be provided by it and will ensure its proper operation, if necessary by means of (maintenance) contracts with third parties. He will enable Vollcom Digital to use the services to be provided by third parties in accordance with these (maintenance) contracts, insofar as this is necessary or expedient for the purposes of executing the order.
(3) In the event of defects occurring, the customer will support Vollcom Digital in the search for the cause of the defect.
(4) The Customer will provide the information, data and documents required for the performance of the services in due time in the form determined by Vollcom Digital in coordination with the Customer.
(5) The Customer will grant persons named by Vollcom Digital to the Customer the access authorizations required for the provision of the services, in particular to buildings and rooms as well as to technologies and (IT) systems, and will grant or have granted the media required for this purpose (e.g. code cards, ID cards, user names and passwords).
§ 4 Delivery, obligation to inspect and give notice of defects, acceptance
(1) The product or service including the documentation shall be delivered either in printed or electronic form or on data carriers, at Vollcom Digital’s discretion.
(2) When supplying standard software, Vollcom Digital shall deliver it in the object code version current at the time of conclusion of the contract. The product description valid at the time of conclusion of the contract shall be exclusively decisive for the quality of the software. When adapting standard software, Vollcom Digital shall adapt the version of the standard software current at the time of conclusion of the contract in accordance with the order and shall deliver the adapted standard software in object code. The product descriptions of the standard software valid at the time of conclusion of the contract and the requirements agreed upon for the adaptation shall be exclusively authoritative for the quality of the adapted software.
(3) The provision of services shall be governed by what has been agreed between the parties, in particular by the specifications in the respective bill of quantities, insofar as such a bill of quantities has been drawn up.
(4) The Customer will immediately inspect the delivered product to ensure that it is free of defects and will immediately notify Vollcom Digital of any existing defects. Section 377 of the German Commercial Code (HGB) shall apply.
(5) Vollcom Digital informs the Customer of the acceptability of the service and provides the Customer with the service in a manner suitable for acceptance. Vollcom digital shall be entitled to demand partial acceptance if the partial services are self-contained. The client shall subject the services to professional and technical functional tests to determine readiness for acceptance; Vollcom Digital shall support the client in this respect. The parties shall draw up an acceptance protocol. Acceptance may not be refused due to insignificant defects. However, if a service is not ready for acceptance, Vollcom Digital shall be granted a reasonable period of time for subsequent performance. If a reasonable period set by the client for subsequent performance has expired unsuccessfully and subsequent performance finally fails after expiry of a second reasonable period set by the client, the client may reduce the remuneration.
§ 5 Defects, Warranty
(1) Vollcom Digital is liable for defects in accordance with the statutory provisions, unless otherwise stated below.
(2) If defects occur, the Customer will immediately report them to Vollcom Digital, stating the information useful for defect detection and elimination (e.g. information about affected users, the system and hardware environment, simultaneously loaded/used other software, etc.). If Vollcom Digital sets up a defect management system (e.g. a ticket system), the Customer shall use it.
(3) Vollcom may initially advise the Client by telephone. Vollcom Digital allows the use of these services from Monday to Friday from 10:00 AM to 6:00 PM except on Saturdays, Sundays, legal holidays of the state of Bavaria and on the 24th and 31st of December of each year. Vollcom Digital analyzes defects reported by the client as quickly as possible, provided that the defects are reproducible, and provides warranty within a reasonable period of time by remedying the defects.
(4) If a material defect is detected, Vollcom Digital will, at its own discretion, either provide the customer with a new, defect-free item or rectify the defect; rectification of the defect shall also be deemed to have taken place if Vollcom Digital shows the customer reasonable possibilities to avoid the effects of the defect.
(5) In the event of defects of title, Vollcom Digital will, at its own discretion, provide the Client with a legally flawless possibility of use or modify the product in such a way that it no longer has any defects (e.g. by supplying a new product).
(6) The liability for defects in title and quality expires if the client or third parties make changes to the products which Vollcom Digital has not expressly agreed to beforehand. Anything to the contrary shall only apply insofar as the client proves that any defect is not attributable to the modifications and that these modifications have not impeded the identification, analysis and elimination of the defect.
(7) If it turns out that a defect reported by the Client does not actually exist or is not attributable to services provided by Vollcom Digital, Vollcom Digital may demand compensation from the Client for the expenses incurred in connection with the analysis and other processing, provided that the Client acted intentionally or with gross negligence when reporting the defect.
(8) The limitation period for all claims for defects is one year. Claims of the Buyer due to material defects shall become time-barred one year after handover/delivery of the object of purchase to the Customer. Excluded from this are claims for defects of consumers as well as claims for damages due to injury to life, body or health and/or claims for damages due to gross negligence or intentional damage caused by Vollcom Digital. In this respect, the statutory limitation periods shall apply.
§ 6 Remuneration, Offsetting
(1) The Client shall be obliged to pay the agreed remuneration for the services rendered by Vollcom Digital in accordance with the order. All prices stated in an order and in the respective valid price list of Vollcom Digital are exclusive of statutory value-added tax, if applicable.
(2) Time fees are recorded and charged in time units of quarter hours (15 minutes) or part thereof. Vollcom Digital is obligated to record the time spent in a timely and clear manner. If the client additionally requests the recording of the time spent in his system, Vollcom Digital may demand additional remuneration for this.
(3) Vollcom Digital is entitled to demand reasonable advances or payments on account.
(4) In addition to the remuneration, the Client must claim from Vollcom Digital the expenses incurred in connection with the provision of the services, in particular travel expenses, postage and telecommunication costs), which shall be shown separately.
(5) The remuneration shall be due for payment within fourteen days after receipt of the invoice. The statutory provisions shall apply to the default.
(6) The Customer may only set off undisputed or legally established claims.
§ 7 Liability
(1) Vollcom Digital is liable for intent and gross negligence as well as in case of personal injury. Liability for negligence shall be limited to liability for breach of material contractual obligations, so-called cardinal obligations. Liability shall be limited to the damage typical for the contract, the occurrence of which Vollcom Digital must have expected at the time of conclusion of the contract due to the circumstances foreseeable at that time. In addition, Vollcom Digital shall be liable for damages provided for by mandatory legal regulations. The limitations of liability shall also apply to vicarious agents.
(2) Any further liability of Vollcom Digital does not exist. In particular, Vollcom Digital shall not be liable for the contents posted by the contracting parties or services provided by third parties, such as storage space or accessibility of websites or in the event of force majeure.
(3) Unless otherwise agreed, the client is responsible for the regular backup of his data. In the event of loss of data by Vollcom Digital, Vollcom Digital shall in this respect only be liable for the costs of duplicating the data from the backup copies to be made by the client and of restoring the data that would also have been lost if the data had been properly backed up.
(4) The client indemnifies Vollcom Digital against all third-party claims asserted by third parties as a result of the use of Vollcom Digital’s products or services.
(5) A period of one year is agreed for the limitation of mutual liability claims. The limitation period shall commence at the end of the year in which the claim arose and the Customer becomes aware of the circumstances giving rise to the claim or should have become aware without gross negligence.
§ 8 Termination
(1) Orders placed with Vollcom Digital in the areas of (product/software) maintenance, web controlling and hosting constitute continuing obligations. Unless otherwise agreed individually, these shall initially be concluded for two years. Thereafter, the contractual relationship shall be extended by a further year if it is not terminated by one of the contracting parties three months prior to the expiry of the respective contractual period. The right to extraordinary termination for good cause remains unaffected.
(2) The declaration must be made in text form.
§ 9 Rights of use
(1) All rights to works and services of Vollcom Digital, in particular copyrights, rights to property rights and inventions, which are not expressly granted to the client, are exclusively vested in Vollcom Digital.
(2) The client is not permitted to reproduce, distribute or edit these without Vollcom Digital’s prior written consent. Excluded from this are the cases of § 69 d para. 2 and 3 UrhG and § 69 e UrhG.
(4) Copyright notices with Vollcom Digital as the author are to be included in suitable places on or in the object or on movable data carriers on which the object is stored. The client is not entitled to change or remove these notices without the prior written consent of Vollcom Digital. Backup copies shall be marked as such and also provided with the corresponding copyright notice.
(5) Vollcom grants all rights of use to the copyrights and other industrial property rights held by Vollcom Digital exclusively to the client for the term of the contract. In particular, the granting of rights shall not be limited to use on the Internet, but shall also include use in other ways, e.g. in print versions. Vollcom Digital authorizes the client as the holder of the exclusive right of use during the term of the contract or cooperation to assert the rights granted to it against infringers at any time in its own name, e.g. to take action in its own name against any unauthorized use of the website.
§ 10 Granting of copyright, rights to names and trademarks
(1) Vollcom Digital holds the copyrights to the entire website, the individual sub-pages and any integrated elements. Vollcom Digital grants all rights of use for all known and unknown types of use exclusively and in full to the client without any restrictions in terms of content, space or time. In particular, the granting of rights is not limited to uses on the Internet, but also includes exploitation in other ways, e.g. on radio and television, on CD-ROM, in print versions and in all other possible ways. The rights of use shall remain with the client even after termination of the business relationship between the client and Vollcom Digital until the end of the statutory protection period. The granting of rights of use shall also apply to rights that subsequently arise due to new legislation or for other reasons. All rights are transferable by the client in whole or in part. However, the granting of rights shall only become effective in accordance with § 158 para. 1 BGB (German Civil Code) when the client has paid the remuneration owed to Vollcom Digital in full, including any expenses incurred to date. Vollcom Digital may provisionally permit exploitation of the website or individual elements prior to this point in time. A transfer of rights according to this paragraph does not take place thereby.
(2) With regard to any types of use not covered by this grant of rights of use, Vollcom Digital grants the client an option on reasonable terms and conditions as well as a right of entry into any contract between Vollcom Digital and a third party with regard to the contractual website and any works created for it on the same terms and conditions.
(3) The client is entitled to evaluate the website that is the subject of the contract, also in connection with other works, to edit it, to change it subsequently, to supplement it, to expand it, to exchange or delete it in whole or in part, to redesign it himself or through other web designers, to disassemble it, to reassemble it or to translate it into other languages. The web designer will not claim any protection against defacement with regard to the website or individual web pages, unless there is a gross violation of his moral interests. In case of doubt, Vollcom Digital may request that he not or no longer be mentioned in connection with the modified website. With regard to elements of the website created by Vollcom, such as texts, images or interactive elements, Vollcom Digital shall only claim protection against defacement in cases of gross infringement of its moral interests, unless the client has no legitimate interest in their unrestricted usability.
(4) Vollcom Digital is non-exclusively entitled to use the contractual website at any time for demonstration purposes or as a reference for its work. For this purpose, Vollcom Digital may, among other things, make copies of individual parts of the website (e.g. thumbnails), in particular the start page, show the website in public, exhibit it, demonstrate it, broadcast it or exploit it in any other way. In doing so, however, he must always take the rights of the client into consideration, refer to them and name them. The right extends to the contractual website in the version delivered by Vollcom Digital as well as to later versions, provided that the original design content has not been completely eclipsed by the changes.
(5) Vollcom Digital hereby irrevocably authorizes the client as the holder of the exclusive rights of use to assert the rights transferred to it against infringers at any time in its own name, in particular to take action in its own name against any unauthorized use of the website, individual web pages or individual elements. The right of Vollcom Digital itself to take action against such unauthorized uses is excluded.
(6) Vollcom Digital is entitled to have its name mentioned as the author in the form of a copyright notice on every web page it creates. Vollcom Digital may place this copyright notice itself and the client shall not be entitled to remove it without Vollcom Digital’s consent. In the event of subsequent changes to the website that go beyond its mere updating, the client shall update the copyright notice accordingly and draw attention to the subsequent change.
(7) All rights to the name, title and trademark rights arising from the website or individual parts thereof or from use on the website are held by the client.
(8) Vollcom Digital is obligated to provide the client – against payment of additional remuneration – with the source code of those elements of the website programmed by Vollcom Digital for which it cannot be directly read or reconstructed from the completed website. The remuneration is to be agreed individually, in writing and depending on the project volume.
§ 11 Secrecy, reference
The parties undertake to treat the information provided within the framework of the contractual relationship as confidential even after conclusion of the contract and to maintain secrecy in this respect. This confidentiality agreement shall not apply insofar as the information is obviously known in advance or is subsequently demonstrably made available to the other party by a third party without breach of this confidentiality obligation. The parties further undertake to impose this confidentiality obligation also on their subcontractors.
Vollcom Digital is entitled to name the Customer as a reference customer; the Customer is entitled to name Vollcom Digital as a reference service provider. Each contractual partner may revoke the authorization at any time.
§ 12 Data privacy
The parties undertake to comply with the statutory provisions.
§ 13 Final provisions
(1) Contracts between Vollcom Digital and the client are governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The contractual language is German.
(2) The place of jurisdiction for all disputes arising from contractual relationships between Vollcom Digital and the client is Munich, insofar as the client is an entrepreneur.
(3) Should individual provisions of this Agreement be invalid in whole or in part, the validity of the remaining General Terms and Conditions shall not be affected. The ineffective points shall be replaced by the corresponding statutory provisions, if any.