General Terms and Conditions

of

kairoweb
Oberbruchstrasse 141
47807 Krefeld

- hereinafter referred to as the Contractor -

 

Part 1 – General Provisions

1.1 General

1.1.1 The Contractor offers the Client various agency services. The specific scope of services is subject to individual agreements between the Contractor and the Client.

1.1.2 The Contractor does not enter into contracts with consumers or private individuals.

1.1.3 The Contractor is entitled, in its own name and for its own account, to subcontract the required services to subcontractors, who may in turn engage further subcontractors. Unless otherwise agreed, the Contractor shall remain the Client’s sole contractual partner. Subcontractors shall not be engaged if it is apparent to the Contractor that their engagement would conflict with the Client’s legitimate interests.

1.1.4 If, in addition to these General Terms and Conditions, further contractual documents in text or written form have become part of the contract, the provisions of such further contractual documents shall take precedence over these General Terms and Conditions in the event of any conflict.

1.1.5 General terms and conditions used by the Client that deviate from these General Terms and Conditions shall not be accepted by the Contractor unless expressly approved.

1.2 Client’s Duties to Cooperate

1.2.1 If the Client provides the Contractor with texts, images or other content for the performance of the commissioned services, the Client must ensure that such content does not infringe the rights of third parties (e.g. copyrights, trademark rights, etc.) or violate any other legal provisions. In this context, it is expressly pointed out that the Contractor is not legally authorised to provide legal advice to the Client. In particular, the Contractor is neither obliged nor legally in a position to review the Client’s business model and/or works created or acquired by the Client itself (layouts, graphics, texts, etc.) for compliance with applicable law. In particular, the Contractor will not carry out trademark searches or any other checks for conflicts with intellectual property rights in relation to works provided by the Client. Where the Client gives specific instructions regarding the work to be created, the Client shall bear responsibility for such instructions.

1.2.2 The Client is obliged to provide the Contractor completely and correctly with all information, data, works (e.g. data for the legal notice, graphics, logos, etc.) and access credentials required for the performance of the order. The Client must also ensure that the instructions it provides comply with applicable law.

1.2.3 Unless otherwise agreed individually, the Client is responsible for procuring the material required for the provision of the agency services (e.g. graphics, videos) and shall provide such material to the Contractor in good time. If the Client does not provide such material and does not give any further instructions, the Contractor may, at its own discretion and in compliance with copyright attribution requirements, use image material from common providers (e.g. stock photo providers) or insert placeholders in the relevant parts of the website.

1.2.4 If, for individual components of an order, the conclusion of a data processing agreement pursuant to Art. 28 GDPR is required, both parties undertake to conclude such an agreement, to be provided by the Contractor, before the commencement of the services.

1.2.5 The Contractor shall not be responsible in any respect towards the Client for delays in the implementation of projects caused by delayed necessary cooperation or input from the Client; the provisions under the heading “Liability/Indemnification” shall remain unaffected.

1.2.6 If the Client fails to fulfil its duties to cooperate under this clause, the Contractor may charge the Client for the additional expenditure resulting therefrom (e.g. costs for stock photos and time spent searching for them).

1.3 Use of Artificial Intelligence (AI)

1.3.1 The Contractor is entitled to use artificial intelligence technologies (AI tools) in the performance of its services for the creation of content (e.g. text, images, audio or video). Unless otherwise agreed, all AI-generated content will be reviewed by a natural person after creation and adjusted where necessary. AI tools will not be used where it is apparent to the Contractor that their use would conflict with the Client’s legitimate interests. If the Client does not wish AI technologies to be used for certain projects or parts thereof, the Client must notify the Contractor of this independently in text form.

1.3.2 The Contractor warrants that content created wholly or partly using AI does not infringe the rights of third parties. If exclusive rights of use are to be transferred in respect of content created wholly or partly with the assistance of AI, the Contractor shall ensure that such transfer of rights is possible (e.g. by modifying AI-generated works to such an extent that they reach the required level of originality and therefore qualify for copyright protection).

1.3.3 Separate labelling of AI-generated content shall only be required if and to the extent that such labelling is required by law or if, at the time the service is provided, it is already foreseeable that a labelling obligation will be legally required in the near future (e.g. due to provisions of the AI Regulation). The same applies to notifications stating that certain work results were created with the assistance of artificial intelligence.

Part 2 – Online Presence and Technology

2.1 Website Creation (Agile)

2.1.1 Unless otherwise agreed individually, the creation of new websites or the extension of existing websites or web components (hereinafter referred to as “Website Creation”) shall be carried out on the basis of agile methods. The remaining provisions of these General Terms and Conditions shall remain unaffected.

2.1.2 Website creation contracts between the Contractor and the Client generally concern the development of new websites or the extension of existing websites (e.g. integration of new interfaces or programming of new online applications), taking into account the Client’s technical and/or design specifications. Website creation contracts concluded between the parties constitute contracts for work and services within the meaning of Sections 631 et seq. of the German Civil Code (BGB).

2.1.3 The services agreed in detail are determined by the individual contract concluded between the Contractor and the Client. For this purpose, the Client shall initially submit an enquiry to the Contractor containing as precise a description as possible of the desired website content (design-related content such as images, layouts, logos, fonts and similar elements shall, unless otherwise agreed, be specified and provided by the Client). This enquiry constitutes an invitation to the Contractor to submit an offer. The Contractor shall review the Client’s ideas described in the enquiry to the best of its knowledge and belief with regard to completeness, suitability (excluding legal suitability, particularly with regard to third-party rights), clarity, feasibility and consistency and shall prepare an offer based on the wishes expressed in the Client’s enquiry. A contract between the Contractor and the Client shall only come into existence upon the Client’s acceptance of the offer.

2.1.4 The Client may submit additional requests at any time, provided these are covered by the originally agreed scope of services. Such adjustments shall become part of the original contract if both parties agree in text form (e.g. by email). Otherwise, the Contractor shall only be obliged to produce the functions/items listed in the contract or to provide the agreed service. Services beyond this scope must be agreed and remunerated separately.

2.1.5 Once the website has been completed, the Contractor shall request the Client to accept the website.

2.1.6 A prerequisite for the Contractor’s work is that all data to be provided by the Client and required for implementation of the project (e.g. texts, templates, graphics, fonts) and/or system environments are made available to the Contractor in good time and in a suitable form. The Contractor shall not be responsible in any respect towards the Client for delays in the implementation of projects caused by delayed necessary cooperation or input from the Client.

2.1.7 The examination or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics tools) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if expressly agreed in an individual contract. Unless expressly agreed otherwise, the Client shall have no claim to the surrender of graphics, source code, (development) documentation, manuals or other additional documentation.

2.1.8 Unless otherwise agreed, the websites created are optimised for the current versions of the Chrome, Safari, Firefox and Edge browsers (in each case the latest two versions of the browser). Search engine optimisation (SEO) shall only be owed if expressly agreed.

2.1.9 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services relating to the websites. However, the Contractor is neither obliged to make such an offer nor is the Client obliged to use the Contractor’s additional service offers. Corresponding agreements shall exclusively be the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Client alone shall be responsible after acceptance for the technical maintenance and up-to-date status of the websites. The Contractor shall not be liable to the Client for any security vulnerabilities resulting from outdated third-party software being exploited for unlawful purposes (hacking).

2.2 Website Creation (Requirements Specification and Functional Specification)

2.2.1 If the parties agree that the creation of new websites or the extension of existing websites or web components (hereinafter referred to as “Website Creation”) is to be carried out on the basis of a requirements specification and functional specification, the order shall be processed in accordance with this clause.

2.2.2 Website creation contracts between the Contractor and the Client generally concern the development of new websites or the extension of existing websites (e.g. integration of new interfaces or programming of new online applications), taking into account the Client’s technical and/or design specifications. Website creation contracts concluded between the parties constitute contracts for work and services within the meaning of Sections 631 et seq. BGB.

2.2.3 The scope of services to be provided by the Contractor is determined, on the one hand, by individual contractual agreements between the parties and, on the other hand, by a detailed requirements specification prepared by the Client and the functional specification based thereon. The Contractor shall review the Client’s ideas described in the requirements specification to the best of its knowledge and belief with regard to completeness, suitability (excluding legal suitability, particularly with regard to third-party rights), clarity, feasibility and consistency. If the Contractor recognises that the requirements contained in the requirements specification are unsuitable for the creation of a website, the Contractor shall notify the Client without delay and submit an appropriate proposal for supplementing and/or adapting the requirements specification. The Client must comment on any proposals made by the Contractor regarding the requirements specification within a reasonable period in writing or in text form and shall ultimately confirm the contents of the requirements specification to the Contractor in a binding manner in writing or in text form. If the parties agree on the requirements specification, its contents shall become part of the contract.

2.2.4 On the basis of the requirements specification, the Contractor shall prepare a functional specification describing in particular the technical and/or design implementation of the requirements contained in the requirements specification. After completion, the Contractor shall submit the functional specification to the Client for acceptance. The Client shall be entitled to reject the functional specification prepared by the Contractor and communicate requests for changes or adjustments. In this respect, the Contractor undertakes, taking into account the Client’s wishes, to submit a maximum of two alternative proposals. If the Client ultimately does not agree with the Contractor’s final proposal, either the Client or the Contractor may, to the extent legally permissible, terminate the contractual relationship for cause or withdraw from the contract. In this case, the fees and/or expenses incurred by the Contractor in connection with the requirements specification and/or functional specification shall be reasonably remunerated or reimbursed by the Client.

2.2.5 If the functional specification is accepted by the Client, the services described therein shall be deemed finally agreed between the parties. Any deviations from the contents of the functional specification accepted by the Client require an express individual agreement between the parties. The Contractor shall not provide services exceeding those described in the functional specification accepted by the Client. Likewise, the Contractor shall generally not provide reduced services compared with those described in the functional specification accepted by the Client. Following acceptance of the functional specification by the Client, the Contractor shall develop and programme the websites in accordance with the agreed specifications.

2.2.6 In addition to the functional specification, the Contractor shall provide the Client with a schedule and work plan. The contents and specifications of this schedule and work plan shall become part of the contract unless the Client objects without undue delay. The Contractor undertakes to hand over the completed website or parts thereof to the Client by the final date stated in the schedule and work plan on a suitable data carrier and/or send them by email and/or upload them to a server specified by the Client. The details of the handover or upload of the completed websites shall otherwise be subject to individual contractual agreements between the parties.

2.2.7 A prerequisite for the Contractor’s work is that all data to be provided by the Client and required for implementation of the project (e.g. texts, templates, graphics, fonts) and/or system environments are made available to the Contractor in good time and in a suitable form. The Contractor shall not be responsible in any respect towards the Client for delays in the implementation of projects caused by delayed necessary cooperation or input from the Client.

2.2.8 Once the website has been completed, the Contractor shall request the Client to accept the website. If necessary, a test phase may be agreed prior to acceptance. If the Client identifies errors before acceptance or during an agreed test phase, the Client shall notify the Contractor of such errors in writing or in text form. The Contractor shall endeavour to correct the errors professionally. For this purpose, the Contractor may provide temporary workarounds.

2.2.9 The examination or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics tools) or certificates (e.g. SSL/TLS) shall only be owed by the Contractor if expressly agreed in an individual contract. Unless expressly agreed otherwise, the Client shall have no claim to the surrender of graphics, source code, (development) documentation, manuals or other additional documentation.

2.2.10 Unless otherwise agreed, the websites created are optimised for the current versions of the Chrome, Safari, Firefox and Edge browsers (in each case the latest two versions of the browser). Search engine optimisation (SEO) shall only be owed if expressly agreed.

2.2.11 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services relating to the websites. However, the Contractor is neither obliged to make such an offer nor is the Client obliged to use the Contractor’s additional service offers. Corresponding agreements shall exclusively be the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Client alone shall be responsible after acceptance for the technical maintenance and up-to-date status of the websites. The Contractor shall not be liable to the Client for any security vulnerabilities resulting from outdated third-party software being exploited for unlawful purposes (hacking).

2.3 Maintenance and Support of Websites / Shops

2.3.1 After completion of the websites and/or individual parts thereof, the Contractor may offer the Client maintenance and support services relating to the websites (hereinafter referred to as “Maintenance Agreements”). The Contractor may also offer maintenance of third-party websites. However, the Contractor is neither obliged to make such an offer nor is the Client obliged to use the Contractor’s additional service offers. Corresponding agreements shall exclusively be the subject of individual arrangements.

2.3.2 Maintenance Agreements shall include the remedy of functional disruptions as well as updates of the website, as required, for commonly used web browsers in their respective current versions. Additional services, such as regular maintenance, may be agreed individually where applicable.

2.3.3 The Contractor shall not be liable for functional disruptions and incompatibilities caused by unauthorised changes made by the Client or resulting from other errors outside the Contractor’s area of responsibility; the provisions under “Liability/Indemnification” shall remain unaffected.

2.3.4 Unless otherwise agreed, maintenance shall only include technical updates and not content-related updates of the website. In particular, unless otherwise agreed individually, the Contractor shall not be obliged to update the legal notice or privacy policy.

2.4 Web Hosting

2.4.1 The Contractor also offers the Client hosting of websites/shops created by the Contractor. For the performance of its services, the Contractor shall use servers operated by third-party companies. The Contractor shall inform the Client about the servers and third-party companies used before conclusion of the contract. The specific scope of services (domain management, storage space, email hosting, certificates, etc.) shall be subject to individual agreements between the parties.

2.4.2 The availability of the servers used by the Contractor for hosting purposes shall be at least 99 percent on an annual average. Excluded from this are periods during which the servers are unavailable due to events beyond the Contractor’s control (force majeure, actions of third parties, technical problems outside the Contractor’s sphere of influence, etc.).

2.4.3 The Client is responsible for regularly creating backup copies of its hosted data. If the Client is unable to do so, it must commission the Contractor or another appropriately qualified third party to carry out the backup. The Client shall be responsible for any data loss resulting from insufficient data backup.

2.4.4 No content may be stored on the provided storage space that is insulting, extremist, glorifies or trivialises violence, incites hatred, is right-wing extremist, discriminatory, hostile to the constitutional order, harmful to minors or pornographic, infringes the rights of third parties (e.g. trademark and copyright rights), violates any other applicable law or public morals (in particular criminal law and administrative offence law), or contains malicious code or malware. If the Contractor becomes aware that impermissible content within the meaning of this paragraph may have been stored on the provided storage space as part of the hosting, the Contractor shall proceed as follows:

2.4.4.1 The Contractor shall promptly carry out a summary review of the relevant content. If the summary review shows that impermissible content cannot be ruled out, the Contractor may, at its discretion, temporarily block such content or take other measures appropriate to the risk situation, up to and including deletion of the content. The Contractor shall request the Client to submit a statement and shall grant the Client a reasonable period for doing so.

2.4.4.2 Once the Client’s statement has been received, or if the Client has failed to submit a statement within the period granted, the Contractor shall make a final decision on how the content concerned is to be handled. In particular, the following measures may be considered: warning; indefinite blocking or permanent deletion of the content; temporary suspension of the Client (alternatively, partial suspension may also take place); ordinary or extraordinary termination of the contract; filing a criminal complaint or reporting the matter to the regulatory authority (where a criminal offence is suspected that may pose a risk to the life, physical integrity or safety of a person, the Contractor is legally obliged to report it). The Contractor shall only take the respective measure after a thorough and objective assessment and shall take into account in particular the seriousness of the infringement, the total number of infringements, potential effects on the services provided by the Contractor, its clients and other third parties, the overall conduct (e.g. the Client’s understanding of the infringement), fault (intent, negligence), the motives for the infringement (where identifiable) and the Client’s statement (if available).

2.4.4.3 The Contractor shall inform the Client of the assessment, its result and the measures decided upon, unless legal reasons prevent this.

2.4.4.4 The Contractor shall not proactively review stored content and, unless otherwise stated, shall not carry out automated reviews of stored content. However, the Contractor shall take action as soon as it identifies such content itself or is informed of such content by third parties. If the Client becomes aware of such content, it may of course contact the Contractor at any time using the contact details provided in the legal notice.

Part 3 – Marketing

3.1 SEO Marketing

The Contractor offers the Client, among other things, services in the field of SEO marketing. As part of the provision of services, the Contractor shall only be obliged to implement measures which, based on the Contractor’s own experience, may positively influence search engine rankings or which are expressly instructed by the Client. This constitutes a service within the meaning of Sections 611 et seq. BGB. A specific result (e.g. a particular ranking in search engine results) shall only be owed as part of SEO services if expressly guaranteed.

3.2 SEA Campaigns

The Contractor offers the Client services in the field of SEA campaigns. As part of the provision of services, the Contractor shall only be obliged to submit suggestions regarding advertising-effective keywords and, following approval by the Client, to implement the measure (placement of advertisements). These are services within the meaning of Sections 611 et seq. BGB. A specific result (e.g. sales figures) shall not be owed as part of SEA services unless expressly guaranteed. The Contractor shall not be obliged to review the legality of keywords. The Contractor shall submit suggestions to the Client regarding the booking of keywords. The legal review, in particular with regard to third-party trademark rights, and approval of the keywords prior to implementation of the campaign shall be the responsibility of the Client. The fee agreed for the services described herein does not include the costs of placing paid advertisements; unless otherwise agreed, these costs shall be borne by the Client.

3.3 Placement of Advertisements

3.3.1 The Contractor supports the Client in placing advertisements on social media platforms, search engines and other media (“Advertisements”).

3.3.2 The Contractor advises the Client on how to design its Advertisements so that they achieve the highest possible visibility. Specific results (e.g. sales figures, leads) are not owed.

3.3.3 The Contractor also supports the Client in developing the texts and images for the Advertisements. However, the selection of content for the Advertisements (images, texts, videos, legal notices, etc.) shall be the sole responsibility of the Client. The Contractor shall not review such content, nor the Advertisements as a whole, for substantive or legal correctness. In this respect, it is expressly pointed out that the Contractor is not authorised to provide legal advice to the Client. If, in individual cases, the Contractor nevertheless identifies that content provided by the Client and/or the Advertisements violate applicable law, the Contractor may refuse to publish such content or create the Advertisements.

3.3.4 All content must be approved by the Client and shall then be uploaded by the Contractor to the respective advertising channels, whereby the Contractor shall only be obliged to carry out the technical upload of the content and shall only be responsible for this; the provisions under “Liability/Indemnification” shall remain unaffected.

3.3.5 The fee agreed for the services described herein does not include the costs of placing paid advertisements; unless otherwise agreed, these costs shall be borne by the Client.

Part 4 – Other Provisions

4.1 Prices and Remuneration

The remuneration for the Contractor’s services shall be subject to an individual contractual agreement between the parties and shall generally be based on the offer.

4.2 Acceptance

If a work performance has been agreed, the Contractor shall request the Client to accept the work. The acceptance period within the meaning of Section 640(2), sentence 1 BGB shall be set at 2 weeks from the request for acceptance, unless, due to special circumstances in an individual case, a different acceptance period is required, which the Contractor shall communicate separately to the Client in such case. If the Client does not respond within this period or does not refuse acceptance due to a defect, the work shall be deemed accepted.

4.3 Warranty for Defects

An insignificant defect shall not give rise to any claims for defects. The choice of the type of subsequent performance shall be at the Contractor’s discretion. The limitation period for defects and other claims shall be one (1) year; this reduction of the limitation period shall not apply to claims arising from intent, gross negligence or injury to life, body or health caused by the Contractor. The limitation period shall not restart if subsequent performance is provided within the scope of liability for defects. In all other respects, the statutory warranty provisions shall remain unaffected.

4.4 Granting of Rights, Self-Promotion and Right of Attribution

4.4.1 Following full payment of the order by the Client, the Contractor shall generally grant the Client a simple, non-transferable right of use in the relevant work results. Further rights may be agreed individually.

4.4.2 Unless otherwise agreed, the Client expressly grants the Contractor permission to publicly present the project in an appropriate manner for the purposes of self-promotion (references/portfolio). In particular, the Contractor shall be entitled to advertise the business relationship with the Client and to identify itself as the creator on all advertising materials produced and in all advertising activities, without the Client being entitled to any remuneration in this respect.

4.4.3 The Contractor shall furthermore be entitled to place its own name, including a link, in an appropriate manner in the footer and legal notice of the website(s) created by the Contractor, without the Client being entitled to any remuneration in this respect.

4.5 Confidentiality

The Contractor shall treat all business matters of which it becomes aware, in particular, but not exclusively, print materials, layouts, storyboards, numerical material, drawings, audio tapes, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and other documents containing films and/or audio plays and/or other copyrighted materials of the Client or affiliated companies, as strictly confidential. The Contractor undertakes to impose the confidentiality obligation on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, recording studios, etc.) who have access to the aforementioned business matters. The confidentiality obligation shall continue indefinitely beyond the term of this contract.

4.6 Liability/Indemnification

4.6.1 The Contractor shall be fully liable on any legal grounds in cases of intent or gross negligence, in the event of intentional or negligent injury to life, body or health, on the basis of a guarantee promise unless otherwise provided in this respect, or on the basis of mandatory liability such as under the German Product Liability Act. If the Contractor negligently breaches an essential contractual obligation, liability shall be limited to the damage typical for the contract and foreseeable, unless unlimited liability applies pursuant to the preceding sentence. Essential contractual obligations are obligations which the contract imposes on the Contractor according to its content in order to achieve the purpose of the contract, the fulfilment of which is essential for the proper performance of the contract and on compliance with which the Client may regularly rely. In all other respects, the Contractor’s liability shall be excluded. The above liability provisions shall also apply with regard to the Contractor’s liability for its vicarious agents and legal representatives.

4.6.2 The Client shall indemnify the Contractor against any claims asserted by third parties against the Contractor as a result of the Client’s breaches of these General Terms and Conditions or applicable law.

4.6.3 Data Protection Responsibility The Client is responsible for the compliance with data protection law of the processing of personal data carried out via the website as well as for the completeness, accuracy and up-to-date status of the privacy policy and other information required under data protection law provided by the Client. The Contractor does not owe any legal review or legal advice regarding compliance with data protection provisions, in particular the GDPR, unless this has been expressly agreed in an individual contract. The Contractor shall not be liable for data protection violations resulting from content, information or instructions provided by the Client, third-party services used or requested by the Client, subsequent changes made by the Client, or the Client’s failure to update information required under data protection law. The Contractor’s liability for data protection violations for which the Contractor itself is responsible shall remain unaffected within the framework of the statutory provisions and the liability provisions of these General Terms and Conditions.

4.7 Final Provisions

4.7.1 The contracts concluded between the Contractor and the Client shall be governed by the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

4.7.2 If the Client is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the parties agree that the Contractor’s registered office shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction shall remain unaffected.

4.7.3 The Contractor shall be entitled to amend these General Terms and Conditions for objectively justified reasons (e.g. changes in case law, legislation, market conditions or business or corporate strategy) subject to a reasonable notice period. Existing Clients shall be notified by email no later than two weeks before the amendment enters into force. If the existing Client does not object within the period specified in the amendment notice, the Client’s consent to the amendment shall be deemed granted. If the Client objects, the amendments shall not enter into force; in this case, the Contractor shall be entitled to terminate the contract for cause as of the date on which the amendment was intended to take effect. The notification of the intended amendment to these General Terms and Conditions shall indicate the applicable period and the consequences of an objection or failure to object.