General Terms & Conditions
§1 General, Scope of Application
(1) All deliveries, services and offers of Twist & Schirm Social Media GmbH,
Leopoldstr. 31, 80802 Munich, Germany (hereinafter „T&S“) are exclusively based on these General Terms and Conditions (hereinafter these „GTC“). These are an integral part of all contracts that T&S concludes with its contractual partners (hereinafter the „Customer“) regarding the deliveries or services offered by T&S (T&S and the Customer hereinafter each individually the „Contractual Partner“ and jointly the „Contractual Partners“). These GTC shall only apply if the Principal is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) These GTC shall also apply to all future deliveries, services or offers made to the Client within the scope of a term contract, without these GTC having to be agreed separately in each individual case. Unless otherwise agreed, these GTC shall apply in the version communicated upon conclusion of the term contract.
(3) These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Principal or third parties shall only become part of the contract if and to the extent that T&S have expressly agreed to their validity in writing. General terms and conditions of the ordering party or third parties shall therefore not apply subject to express consent, even if T&S do not separately object to their application in individual cases or refer to the exclusive application of these GTC. The consent requirement shall apply in any case. In particular, the reference by T&S to a letter containing or referring to the General Terms and Conditions of the Principal or a third party as well as the unconditional performance or delivery in knowledge of the General Terms and Conditions of the Principal or a third party shall not constitute consent to the validity of those General Terms and Conditions.
(4) These General Terms and Conditions shall apply in addition to individual offers or contracts. If and to the extent that agreements made with the Client in individual cases (including collateral agreements, supplements and amendments) contain deviations from these GTC, such deviations shall in any case take precedence over these GTC. The remaining provisions of these GTC shall remain unaffected.
(5) If written form is required in these GTC, § 126 BGB (German Civil Code) shall apply. Unless individual provisions of these GTC expressly provide otherwise, the transmission by telecommunication of a copy of the respective document, in particular by fax or as a PDF copy by e-mail, shall be sufficient to comply with the form requirement, provided that the copy of the signed declaration(s) is transmitted.
(6) Both parties agree that the electronic signature on all contracts and offers is legally binding.
(7) References to the applicability of statutory provisions shall only have clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.
§2 Offer, Conclusion of Contract
(1) The services of T&S displayed, advertised and offered on the website of T&S or in other advertising media or on other platforms do not constitute binding offers. This also applies if product samples, catalogs, technical documentation, other product descriptions, documents, demo accesses or examples of services of T&S (such as stores, websites, newsletters, graphics or texts) are provided to the ordering party – also in electronic form – unless the transmission is part of an individual offer.
(2) Individual offers by T&S have a validity period and acceptance period of one month from receipt of the offer by the ordering party, unless the offer specifies otherwise. T&S may accept orders or commissions from the ordering party within two weeks of receipt.
(3) Information provided by T&S regarding the object of the delivery or service as well as representations in this regard are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(4) The legal relationship between T&S and the Client shall be governed by the contract concluded in text form for the provision of a service by T&S including these GTC. The text form is satisfied by e-mail. The contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Subsidiary agreements and supplements to the concluded contract must at least be in text form (e.g. e-mail), unless otherwise stipulated in these GTC. § Section 1 (4) of these GTC shall remain unaffected.
(5) In deviation from the above paragraph 4 sentence 1, it shall also be sufficient for the conclusion of the contract if an individual offer by T&S that is not signed by hand is returned signed by the Principal, whereby transmission by telecommunication, in particular by fax or as a PDF copy by e-mail, shall also be sufficient in this case, provided that the copy of the signed declaration is transmitted. § 1 para. 4 of these General Terms and Conditions shall remain unaffected.
§3 Prices, terms of payment, due date
(1) The agreed prices shall apply to the scope of services or deliveries listed in the signed contract, otherwise in the offer or in the order confirmation by T&S. Subsequent requests for changes and additional services (including additional or special services) shall be charged separately.
(2) All prices are quoted in euros plus the statutory value added tax and any packaging costs. Any expenses incurred in the interest of the Client (e.g. application and registration fees) shall be reimbursed separately. In the event of invoicing on an hourly basis, the time required for the provision of the service stated in advance shall be based on estimated values; the actual amount of work shall be decisive.
(3) In the case of term contracts, T&S shall invoice the services monthly in advance at the beginning of each month. In the case of individual orders, change requests and additional services, the services of T&S shall generally be invoiced before the services are rendered. T&S shall be entitled to render services only against partial or full advance payment or provision of security; this shall apply in particular to orders of a larger scope and workload, if the Ordering Party has defaulted on payment in the past or if T&S becomes aware of circumstances after conclusion of the contract which are likely to significantly reduce the creditworthiness of the Ordering Party and as a result of which payment of the outstanding claims of T&S by the Ordering Party from the respective contractual relationship is jeopardized.
(4) Invoices from T&S shall be due for payment without deductions within two weeks of receipt of the invoice at the latest. The date of receipt by T&S shall be decisive for the date of payment. Payment by check is excluded.
(5) If the ordering party fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at a rate of 3 percentage points above the base interest rate; this shall not affect the right to claim higher interest and further damages in the event of default or the statutory flat rate pursuant to Section 288 (5) of the German Civil Code (BGB). Furthermore, T&S shall be entitled to suspend the work carried out by them until payment has been received. If the payment deadline is exceeded more than three times, this shall constitute good cause within the meaning of §§ 314, 626 BGB and shall entitle T&S to terminate the term contract without notice if it is unreasonable to expect T&S to adhere to the contract, also taking into account the other circumstances. Claims that have already arisen shall remain due for payment in the event of termination of the contract. The right of T&S to withdraw from an individual order shall be determined in accordance with the statutory provisions.
(6) Offsetting against counterclaims of the ordering party or the retention of payments due to such claims shall only be permitted if the counterclaims are undisputed or have been legally established.
§4 Change requests, additional services
(1) The signed contract shall be decisive for the scope, type and quality of the deliveries and services, otherwise the offer or the order confirmation of T&S shall be decisive. Change requests with regard to the contractually agreed performance of T&S and additional services that go beyond the contractually agreed range of services can also be requested and transmitted by T&S by e-mail.
(2) T&S may refuse the change requests or additional services if the provision of these services would involve unreasonable effort. T&S may accept or refuse the change requests or additional services within two weeks after receipt.
(3) In the case of requests by e-mail, the acceptance or rejection of the change requests or additional services by T&S shall also be declared by e-mail.
(4) Additional remuneration on an hourly basis shall be incurred for the fulfillment of the change requests or the provision of the additional services, unless a fixed price for the changes or additional services has been agreed between the contractual partners. If a fixed price had been agreed for the original performance of T&S, T&S shall inform the Principal in advance of the hourly rate applied and the additional costs likely to be incurred. If an hourly rate was already agreed for the original service by T&S, this hourly rate shall also apply to the changes and additional services. In this case, the Client shall only be informed of the expected duration upon request.
(5) The time required for the provision of the change requests or additional services specified in advance in the case of billing on an hourly basis is based on estimated values. The actual amount of work shall be decisive.
§5 Service provision, deadlines, delays
(1) T&S shall be free to determine the content, manner, scope, time and place of performance within the scope of what has been contractually agreed. T&S may also use freelancers and other subcontractors in the performance of services.
(2) The dates specified in the signed contract – otherwise the dates specified in the offer or in the order confirmation by T&S – shall be binding. The deadlines stated therein must be adhered to by both contracting parties. The Ordering Party shall be obligated to provide the data, documents and information required for the performance of services by T&S as soon as possible and to perform any other acts of cooperation required on its part.
(3) T&S shall not be responsible for delays in performance due to force majeure and due to circumstances for which the Principal is responsible and shall be entitled to postpone the performance of the affected services by the duration of the hindrance plus a reasonable start-up and planning period. T&S shall notify the Principal of delays in performance due to force majeure. In the event of a minimum contract term, delays for which the Ordering Party is responsible at the beginning or during the term of a contract shall extend the minimum contract term by the delay period.
§6 Acceptance, Correction
(1) Upon request by T&S, the Ordering Party shall be obligated to accept or correct the services rendered by T&S, in particular also drafts and interim results, within two weeks of receipt of the request. Acceptance may not be refused on creative-artistic grounds. There is freedom of design within the scope of what has been contractually agreed.
(2) If the Client fails to declare acceptance within two weeks of receipt of the request or to demand a correction within this period, T&S shall be deemed to have accepted the service.
§7 Retention of title
Delivered products shall remain the property of T&S until payment has been made in full.
§8 Place of performance
The place of performance for all obligations arising from the contractual relationship shall be Munich, unless otherwise specified. If T&S is also responsible for installation, the place of performance shall be the place where the installation work is carried out.
§9 Copyright, rights of use
(1) T&S shall retain ownership or copyright of all offers and cost estimates submitted by them as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Principal within the scope of an offer. The Ordering Party may not make these items accessible to third parties as such or in terms of content, disclose them, use them itself or have them used by third parties or reproduce them without T&S’s express consent. At the request of T&S, he shall return these items in full to T&S and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. This does not apply to the storage of electronically provided data for the purpose of normal data backup.
(2) The services provided by T&S are legally protected. T&S is exclusively entitled to the copyright, any patent rights, trademark rights and other intellectual property rights.
(3) The Customer shall receive the simple, non-transferable right to use the products created for the Customer by T&S in accordance with the purpose of the contract, which right shall be unrestricted in terms of time and space. The right of use shall not continue beyond the duration of the contractual relationship. The Principal shall only be entitled to use the services provided by T&S itself in its own business and for its own purposes and may not pass them on or resell them to third parties without the prior written consent of T&S, with the exception of the passing on of products which, according to their purpose, are intended for distribution to third parties (e.g. newsletters). If the ordering party violates this or if the ordering party does not meet its payment obligations in accordance with § 3 of these General Terms and Conditions even after setting a reasonable deadline, the right of use shall expire or be suspended for the duration of the contractual violation and T&S shall be entitled to prohibit the use of its works protected by intellectual property rights.
(4) The ordering party guarantees that it has all rights to modify and publish texts, fonts, images and all other copyright-protected materials that it makes available to T&S for use in its advertising or in its online store. He further warrants that he has the right to transfer the rights of use of such material to T&S so that T&S may publish such material in his name on its website or in its online store. Any liability of T&S arising from the infringement of property rights, copyrights, rights of use or other intellectual property rights of third parties to the materials provided by the ordering party is excluded.
(5) If the ordering party is subject to special labeling obligations when using material protected by copyright or other intellectual property rights (e.g. licensing requirements for so-called stock images), the ordering party must expressly inform T&S of this and provide appropriate instructions for action.
(6) If T&S does not receive any further information on the transmitted material, they may assume that they can use this material freely for the client. This includes changing, supplementing or shortening the content of texts, cropping, supplementing, alienating or altering images and other material protected by copyright or other intellectual property rights in the sense of the ordering party and publishing them in the name of the ordering party without citing sources.
§10 Data protection, password security
(1) T&S shall be entitled to electronically store the data relating to the respective order and to process and use this data for operational purposes in accordance with the statutory provisions.
(2) The disclosure of data to third parties shall only be permissible if this (e.g. when registering domains or similar) is an object of the contract or necessary for the execution of the contract or if disclosure is required by legal regulations or official orders.
(3) The contractual partners are obliged to transfer passwords, personal data and other highly sensitive information only securely.
(4) The statutory obligations under the Federal Data Protection Act (BDSG) and the Telecommunications Act (TKG) shall remain unaffected.
§11 Commissioned data processing
(1) The subject matter and duration of the agreement shall be determined by the individual contract or offer text and the general terms and conditions set out in § 14 „Minimum contract term and notice period for term contracts“.
(2) It may be part of the tasks of T&S to revise personal data for the Client and/or to transfer this data to third-party systems (e.g. newsletter systems such as CleverReach, Emarsys or other advertising systems such as Google AdWords).
(3) The Client shall be solely responsible for assessing the permissibility of the processing pursuant to Art. 6 (1) DSGVO and for safeguarding the rights of the data subjects pursuant to Art. 12 to 22 DSGVO.
(4) The Client undertakes to have the necessary permission for the transfer of data.
(5) The ordering party shall be entitled to convince itself of compliance with the technical and organizational measures taken by T&S as well as the obligations stipulated in the individual contract and these GTC in an appropriate manner prior to the start of processing and regularly thereafter.
(6) T&S shall process personal data exclusively within the scope of the agreements made and in accordance with the instructions of the ordering party as well as in accordance with applicable laws. T&S shall not use the data provided for processing for any purpose other than that intended by the ordering party.
(7) T&S assures to correct or delete personal data provided to them upon request of the ordering party.
(8) T&S agrees to provide information on compliance with data protection and data security regulations at any time.
(9) T&S shall immediately inform the ordering party of any disruptions, violations or suspected violations of data protection regulations with regard to personal data. This shall also apply in particular with regard to any reporting and notification obligations of the Principal pursuant to Art. 33 and Art. 34 DSGVO.
(10) T&S assures to adequately support the ordering party, if necessary, in its obligations according to Art. 33 and 34 DSGVO (Art. 28 para. 3 sentence 2 lit. f DSGVO). T&S may only carry out notifications according to Art. 33 or 34 DSGVO for the ordering party after prior instruction.
(11) T&S stores all data exclusively in a secure DSGVO-compliant cloud storage as well as on encrypted and password-protected end devices. The operating systems and software used are always kept up-to-date and anti-virus software is installed on all devices used. All T&S employees are trained on possible dangers and how to defend against them. The documentation required by the DSGVO can be viewed upon request. T&S assures that they can provide information about all storage locations of personal data and their copies in their systems at any time.
§12 Confidentiality, return of documents
(1) The contractual partners undertake to treat the content of the respective contract as well as all confidential information about the other contractual partner obtained during the initiation or execution of their contractual relationship as confidential and not to make it accessible to third parties without the express consent of the other contractual partner. This shall apply in particular with regard to business or trade secrets, customer data, economic circumstances and information expressly designated as confidential. This obligation shall continue to apply even after termination of the contractual relationship. It shall not apply to information which is publicly known without breach of the duty of confidentiality. Furthermore, it shall not apply insofar as a contracting party is obliged to disclose such information on the basis of statutory provisions or provisions of stock exchange law or an enforceable order of a court or an authority.
(2) The contracting parties shall store and secure confidential documents made available to them in such a way that access by third parties is excluded. They shall instruct their respective employees on the duty of confidentiality.
(3) The contractual partners shall be obligated to return to the other contractual partner, upon request of the respective other contractual partner, the documents handed over to them after termination of the contractual relationship, unless they can assert a justified interest in possession of the documents.
§13 Warranty, Liability, Statute of Limitations
(1) Unless otherwise stipulated in these GTC including the following provisions, the warranty rights of the Principal and the liability of T&S in the event of a breach of contractual and non-contractual obligations shall be determined in accordance with the statutory provisions.
(2) T&S shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In other cases, T&S shall only be liable – unless otherwise stipulated in para. 3 – for damages arising from the breach of a material contractual obligation (i.e. an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which the contractual partner regularly relies and may rely); in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage. Sentences 1 and 2 shall also apply to breaches of duty by persons for whose fault T&S is responsible according to statutory provisions (e.g. vicarious agents).
(3) Liability for damages arising from injury to life, limb or health and under the Product Liability Act shall remain unaffected by the above limitation of liability. Furthermore, the aforementioned limitation of liability shall not apply if T&S has fraudulently concealed a defect or has assumed a guarantee for the quality of the product.
(4) T&S is not responsible for the content provided by the client. In particular, T&S is not obliged to check the content for any legal violations. The ordering party shall bear full responsibility for the legal security of its online store, its website or the newsletters, advertisements and advertising texts created by T&S.
(5) T&S expressly assumes no guarantee or responsibility for the economic success of the services provided to the ordering party. This applies in particular to measures carried out within the scope of contracts for the search engine optimization of websites, the support of advertising campaigns (e.g. Google AdWords, Facebook Ads) or the creation of newsletters, the support of affiliate programs or social media campaigns.
(6) The statutory provisions apply to the statute of limitations.
§14 Minimum contract term and notice period for term contracts
Unless otherwise agreed, term contracts have a minimum contract term of six months, i.e. they can be terminated at the earliest at the end of the minimum contract term. Unless otherwise agreed, term contracts are always automatically extended by the same term as the originally agreed term. The notice period is 60 days for a minimum contract term of six months and 90 days for twelve months or more.
§15 Mention of references, self-promotion
T&S may name the Customer as a reference customer on its website and in other media, both online and offline, and may publicly reproduce and refer to the services provided within the scope of self-advertising for demonstration purposes. For this purpose, T&S may display or run excerpts from its work for the Client, link the account and use the name, brand and logo of the Client for this purpose. The Principal may revoke this consent with effect for the future for good cause.
§16 Choice of Law, Place of Jurisdiction
(1) The contractual relationship between T&S and the ordering party shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of international private law.
(2) For all disputes arising from or in connection with the contractual relationship between T&S and the ordering party (including those concerning the existence or termination of the contractual relationship), the courts in Munich shall have exclusive jurisdiction in the first instance. This shall apply irrespective of whether the Ordering Party has its registered office in Germany or abroad.
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