GTC
General Terms and Conditions of
Liebchen+Liebchen Kommunikation GmbH
I. Part
1. Scope of application
Offers, orders and contractual relationships shall be based exclusively on the General Terms and Conditions of Liebchen+Liebchen GmbH; these General Terms and Conditions shall therefore apply exclusively. The terms and conditions of our contractual partner shall not apply; as a precaution, conflicting terms and conditions of our contractual partner are expressly rejected. These General Terms and Conditions shall also apply exclusively if Liebchen+Liebchen GmbH unconditionally renders agreed services and/or executes orders in the knowledge of conflicting and/or deviating terms and conditions. These General Terms and Conditions shall also apply to future transactions between the contracting parties without the need to refer to these General Terms and Conditions again.
2. Scope of Services / Establishment of a Contractual Relationship
a) The scope of services results from the offer and / or the service description of Liebchen+Liebchen GmbH as well as from the information in the contract referring to it. Offers are always subject to change until legally binding acceptance. A contractual relationship shall only be established upon receipt of the written confirmation of receipt of the declaration of acceptance; the contracting parties shall be obliged to make such confirmation without undue delay after receipt of the declaration of acceptance.
b) Liebchen+Liebchen GmbH reserves the right to extend or improve services in consultation with the contracting party. To the extent that Liebchen+Liebchen GmbH provides services or performances free of charge, such services or performances may be discontinued at any time and without prior notice. If the discontinuation is of importance to the contracting party, it will be informed by Liebchen+Liebchen GmbH in advance. The discontinuation shall not give rise to any claims for reduction, reimbursement or damages.
c) If technical services are not provided by Liebchen+Liebchen GmbH itself but by third parties, the provision shall be based on the availability stated by the third party.
d) Liebchen+Liebchen GmbH grants to the other party all rights of use necessary for the agreed or appropriate use of the work and services provided by it. As far as possible, works and/or services - including any duplicates - shall be returned to Liebchen+Liebchen GmbH upon termination of the right of use. The granting of property rights shall require an express written agreement; this shall apply mutatis mutandis to any use beyond the agreed and/or appropriate use and/or to any processing and/or modification of the works and services provided.
e) The work and / or services presented and / or handed over in the course of a presentation and the right to use the same shall, without exception, remain the property of Liebchen+Liebchen Kommunikation GmbH. This shall also apply if a working fee or a fee on account has been paid for the presentation. Any processing, utilization, duplication, reproduction, exhibition and distribution of the presented and / or submitted elaborations - even in parts - requires the prior written consent of Liebchen+Liebchen Kommunikation GmbH.
If several concepts are presented within the scope of the presentation and if an order is placed, the agreed fee shall exclusively comprise the right to use the elaborations belonging to the selected concept; the right to use any other concept presented and/or elaborations belonging to the other concepts presented shall require a separate agreement and shall generally only be granted if a separate fee is agreed.
Liebchen+Liebchen Kommunikation GmbH shall have the exclusive right to carry out further design work on the basis of the elaborations presented and/or handed over in the course of the presentation; if presented or handed-over elaborations are not the subject of an order, Liebchen+Liebchen Kommunikation GmbH shall be entitled to use the contents of the presented or handed-over elaborations in full or in part elsewhere.
3. Time of delivery and performance / transfer of risk
a) Delivery and / or service dates which are not expressly agreed - in writing - are exclusively non-binding information. Any delivery and performance dates are agreed in principle on the condition that the contracting party fulfils any cooperation and / or other obligations in accordance with the agreement.
b) Liebchen+Liebchen GmbH shall be entitled to make partial deliveries and/or render partial services to the extent that this is reasonable for the contracting party.
c) If the contracting party is in default of acceptance, Liebchen+Liebchen GmbH shall be entitled to claim compensation for any damage incurred by it in this respect as well as for any additional expenses. The same shall apply if the contracting party fails to comply with agreed and/or necessary duties to cooperate. Fault on the part of the contractual partner or any vicarious agents is not required for the obligation to pay compensation in this respect. The risk of accidental loss and/or accidental deterioration shall pass to the contractual partner upon the occurrence of default of acceptance or default of debtor.
d) Liebchen+Liebchen GmbH shall not be responsible for delays in performance due to force majeure or comparable events. Comparable events are in particular strikes, official directives as well as disruptions in the business and responsibility of third parties commissioned by Liebchen+Liebchen GmbH to provide the service or parts of the service. A reduction of the remuneration in case of delays due to a disturbance outside the area of responsibility of Liebchen+Liebchen GmbH in the sense of the above provisions shall be excluded.
e) In case of non-compliance with agreed delivery and/or service dates for which Liebchen+Liebchen GmbH is responsible, liability - unless such non-compliance is due to intent - shall be limited to the foreseeable, typically occurring damage; any further claims for damages are expressly excluded.
f) Unless expressly agreed otherwise in writing, loading and shipment shall be at the risk of the contractual partner. Any expenses caused by a delay in loading and/or shipment requested by the contracting party and/or for which the contracting party is responsible shall be borne solely by the contracting party; any additional expenses incurred by Liebchen+Liebchen GmbH shall be reimbursed by the contracting party.
g) The conclusion of a transport insurance or a comparable insurance requires an express - written - agreement.
4. Transfer of data
a) Liebchen+Liebchen owes the surrender and / or transfer of raw data (files in which the layers, graphics or texts can be changed) and / or artwork (files in which the layers, graphics or texts cannot be changed) in each individual case exclusively on the basis of a separate agreement expressly providing for the surrender / transfer. Such an agreement must be in writing without exception.
b) If Liebchen+Liebchen GmbH creates websites for Customer, Customer shall - after acceptance - have the exclusive right to use the website on the Internet in the accepted state. In principle, the customer shall not be entitled to any further rights; the granting of further rights shall require a separate agreement in each individual case. In particular, the client shall not receive any rights to the software used for the creation and provision of the website. The transfer of source codes is not owed, such a transfer requires a separate agreement in each individual case.
5. General terms of payment
a) Unless otherwise expressly agreed in writing, the agreed remuneration shall be due for payment upon performance of the work and/or services. Liebchen+Liebchen GmbH shall be entitled to request reasonable advances on the agreed remuneration; this shall apply in particular if the performance of the work and / or services involves the use of third parties and / or expenses or if the work / services are accepted in parts in accordance with the contractual agreements and / or customary commercial practice.
b) The contractual partner shall pay the remuneration in full - the deduction of cash discount is expressly excluded - to the bank account expressly designated by Liebchen+Liebchen GmbH as payment account.
c) In the event of default in payment, the outstanding amount shall bear interest at a rate of 5 percentage points above the prime rate (§ 247 BGB). The right to claim higher damages for default shall remain unaffected.
d) The contracting party may only set off claims of Liebchen+Liebchen GmbH against claims of Liebchen+Liebchen GmbH which are undisputed or have been finally adjudicated. The contracting party shall only be entitled to assert a right of retention on the basis of undisputed or legally established counterclaims arising from the respective contractual relationship.
e) In case of default of payment and / or reasonable doubt about the contractual partner's ability to pay, Liebchen+Liebchen GmbH may demand the deposit of securities or declare all payment claims arising from the business relationship immediately due for payment. In addition Liebchen+Liebchen GmbH shall be entitled to withdraw from the contractual relationship(s) existing with the contracting party.
6. Warranty / Liability
a) In case of justified and immediately raised notices of defect Liebchen+Liebchen GmbH shall be obliged to supplementary performance under exclusion of the contracting party's right to withdraw from the contract or to reduce the purchase price / remuneration, unless Liebchen+Liebchen GmbH is entitled to refuse supplementary performance in accordance with the statutory provisions. If the supplementary performance fails, the contracting party may, at its option, demand a reduction of the purchase price / remuneration or rescind the contract. Other warranty claims are expressly excluded. Failure of subsequent performance shall be deemed to have occurred with the second unsuccessful attempt to remedy the defect. Any claims for damages may be asserted by the contractual partner - subject to the following provisions - only after the failure of the subsequent performance has been established.
A prerequisite for the warranty is always the proof by the contractual partner that the defect is due to the services of Liebchen+Liebchen GmbH. Late, insufficient or unfounded complaints shall release Liebchen+Liebchen GmbH from its warranty obligation.
b) Any warranty claims of the contracting party shall become statute-barred - except for fraudulent concealment of defects - one year after delivery / acceptance of the service.
c) Liebchen+Liebchen GmbH's liability for damages shall be excluded to the extent permitted by law. In all other respects Liebchen+Liebchen GmbH's liability for damages shall be limited to the foreseeable, typically occurring damage.
d) Claims for damages due to a defect shall become statute-barred one year after delivery / acceptance of the service.
7. Other and final provisions
a) The contractual relationship shall be governed exclusively by German law.
b) Exclusive place of performance and jurisdiction is - as far as legally permissible - Frankfurt a.M..
c) Should any provision of the General Terms and Conditions of Liebchen+Liebchen GmbH be or become invalid, the valid provision shall be deemed to have been agreed which most closely approximates the original provision in economic terms.
d) No verbal collateral agreements have been made.
II. Part
If and to the extent that Internet services are provided by Liebchen+Liebchen GmbH, the following General Terms and Conditions shall apply with priority.
1. Liebchen+Liebchen GmbH provides the following Internet services to the contracting party, among others:
- Provision of web storage
- Provision of web databases
- Hosting of web pages on a web server (web hosting)
- Registration of domains (TLD/DNS)
- E-mail hosting
- Provision of complete content management systems (CMS)
2. The server-based Internet services are provided by a third party to Liebchen+Liebchen GmbH, against this background Liebchen+Liebchen GmbH shall be liable to the contracting party for any downtime and / or technical problems only under the conditions and to the extent that the third party is liable to Liebchen+Liebchen GmbH. Liebchen+Liebchen GmbH hereby assigns to the contracting party any liability claims it may have against the third party, and the contracting party expressly accepts such assignment and releases Liebchen+Liebchen GmbH from any liability claims in this respect. Should Liebchen+Liebchen GmbH be liable for damages due to binding legal provisions, such liability shall be limited - except in case of intentional or grossly negligent causation by Liebchen+Liebchen GmbH itself - to the amount of the remuneration to which Liebchen+Liebchen GmbH would be entitled for the unavailable performance for the duration of the failure in accordance with the contractual agreements.
3. Liebchen+Liebchen GmbH generally does not warrant that the services provided - in particular the servers - permit certain services and / or the use of certain software.
4. The backup of data on the provided web space and / or in the provided databases and / or in content management systems is incumbent on Liebchen+Liebchen GmbH only in the presence of a corresponding written agreement.
5. Liability for loss of data for which Liebchen+Liebchen GmbH is responsible shall be limited to the typical recovery costs that would have been incurred if the contracting party had made regular backup copies in accordance with the risks involved, unless the making of backup copies is an integral part of the service.
6. Liebchen+Liebchen GmbH does not warrant that the Software provided by it - whether proprietary or third party software - will always run uninterrupted, error-free and secure or that no unauthorized access by third parties ("hackers") will / can occur. No defect leading to warranty is given in case of functional impairment resulting from hardware defects, environmental conditions, incorrect operation, defective data, unauthorized access and/or intervention by third parties (e.g. "hackers"), etc. Against this background Liebchen+Liebchen GmbH expressly disclaims any warranty that third parties will not or will not be able to access or interfere with the software without authorization. In all other respects the warranty shall be determined in accordance with the provisions under I. 5.
7. In case of delivery of individual software the source code remains with Liebchen+Liebchen GmbH, Liebchen+Liebchen GmbH is not obliged to make the source code available to the contracting party or third parties.
8. Domains shall be registered by Liebchen+Liebchen GmbH on behalf of the contracting party with a third party company. The registration of the domain shall be made in the name specified by the contracting party. Liebchen+Liebchen GmbH shall be responsible for domain maintenance and name service only as long as the domain is hosted on a server provided by Liebchen+Liebchen GmbH. Domains shall remain the property of Liebchen+Liebchen GmbH until payment has been made in full. Liebchen+Liebchen GmbH is entitled to refuse requests to transfer the domain of a contracting party to another provider if its invoices have not been paid in full by the contracting party. If an invoice has not been paid four weeks after the due date, Liebchen+Liebchen GmbH shall be entitled to block the retrieval of the contracting party's domain on the Internet until full payment has been made.
9. The contracting party is obliged to use the services provided in an appropriate manner. He has to pay in particular
a) to pay the agreed remuneration plus the statutory value added tax to be charged thereon as agreed;
b) inform Liebchen+Liebchen GmbH - to the extent necessary and requested - of the equipment used / to be used (hardware and / or software) for the utilization of the service;
c) to ensure that the content displayed and / or transmitted using the services does not violate any legal provisions; Liebchen+Liebchen GmbH is expressly not obligated to control the content displayed and / or transmitted using the services, Liebchen+Liebchen GmbH is furthermore exempted from any responsibility and / or liability for illegal content;
d) not to misuse or offer the possibility of accessing services and to refrain from illegal actions; in particular, the contracting party shall ensure that no violations of protective laws, civil, criminal or regulatory provisions occur through the use of the services provided;
e) to keep passwords and access codes secret and to protect them from unauthorized access by third parties;
f) to indemnify and hold harmless Liebchen+Liebchen GmbH from and against any and all liability arising out of unauthorized access to and/or use of and/or misuse of passwords and/or access codes; the same applies to any damage caused by spying out data which is punishable by law. This also and in particular applies to the spying out of e-mail messages and / or other message transmissions using the Internet service lines;
g) to notify Liebchen+Liebchen GmbH without undue delay of any visible defects and malfunctions;
h) to enable Liebchen+Liebchen GmbH or third parties commissioned by Liebchen+Liebchen to identify the defects and malfunctions and to determine their causes;
i) to reimburse Liebchen+Liebchen GmbH for any expenses incurred by Liebchen+Liebchen GmbH in connection with the inspection of its facilities and attributable to defects and malfunctions for which Liebchen+Liebchen GmbH is responsible;
j) to refrain from and to ensure that the services of Liebchen+Liebchen GmbH are offered to third parties, procured for third parties or used by third parties in breach of contract; use by third parties in breach of contract shall only be permitted with the express written consent of Liebchen+Liebchen GmbH;
k) to observe and comply with the recognized principles of data security;
10. Liebchen+Liebchen shall invoice the services rendered by it in advance on an annual basis as a matter of principle, and the contracting party shall promptly remit the invoiced fees for payment. In the event of premature termination of the contractual relationship, the contracting party shall expressly have no claim to repayment, partial repayment and/or crediting of the fees paid.
11. if the contracting party is in default of payment, Liebchen+Liebchen GmbH must cease to provide the service after warning the contracting party by setting a deadline of two weeks, in particular it may block access to the services / services.
12. Liebchen+Liebchen GmbH shall not be responsible for delays in performance due to force majeure or comparable events. Comparable events are in particular strikes, official orders, failure of communication networks or protocol converters ("gateways") of other operators as well as disturbances in the area of other telecommunication or service providers, in particular third parties commissioned by Liebchen+Liebchen GmbH to provide the service or parts of the service. Any refund of fees in case of service failures due to a disruption outside the responsibility of Liebchen+Liebchen GmbH in the sense of the above provisions shall be excluded.
13. The contracting party shall also be liable for all consequences and disadvantages suffered by Liebchen+Liebchen GmbH or third parties as a result of the misuse or illegal use of the service or as a result of the contracting party's failure to comply with its contractual obligations.
14. The contractual relationship may be terminated by either party by giving 3 months' notice to the end of the respective term of the contract. The right to extraordinary termination (without notice) in the event of good cause shall remain unaffected. The termination must be made in writing. In the event of breaches by the contracting party of the obligations set forth in section a) paragraph cc) and / or hh), Liebchen+Liebchen GmbH shall be entitled to terminate the contractual relationship immediately without notice. In case of violations of the remaining provisions of clause 3, Liebchen+Liebchen GmbH shall be entitled to terminate the contractual relationship without notice after having given a warning to no avail.
15. If any provision of the above General Terms and Conditions of Liebchen+Liebchen GmbH for Inter-Services is or becomes invalid, the valid provision shall be deemed to have been agreed which most closely approximates the original provision in economic terms.
Status: August 2015