General Terms and Conditions of emplify GmbH
- These General Terms and Conditions (“GTC”) shall apply exclusively. They apply to our services in the area of job advertisements (media services, campaign management, multiposting, graphics, text), personnel marketing and employer branding (website creation and maintenance, landing pages, social media graphics and text services, print, online) including the related consulting services (together our “Services“), which we, emplify GmbH, Stöckachstr. 11A, 70190 Stuttgart, Germany, as contractor, for you as client (“Client“).
- Any conflicting, additional or deviating terms and conditions of the customer shall not become part of the contract unless we have expressly agreed to their validity. Our GTC shall also apply if we perform a service without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
- Our GTC apply only if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a holder of a special fund under public law.
2 Offers, services
- Unless otherwise agreed, our offers are free of charge.
- Unless otherwise stipulated in the offer, we shall be bound by our offer for a period of four weeks.
- We retain ownership and/or all (copyright) rights of use to all offers and cost estimates submitted by us as well as illustrations, calculations, brochures, catalogs, models and other documents and aids made available to the customer. The customer may not make these documents available to third parties, either as such or in terms of content, disclose them, use them himself or have them used by third parties, have them used or reproduce them without our express consent.
- The content and scope of the services to be provided by us as well as the concrete description of the services are set out in our offer or in the further documents referred to therein (specifications, documentation, etc.).
3 Cooperation, Obligations of the Customer to Cooperate
- The parties work together in a spirit of trust. If a Party recognizes that information and requirements, whether its own or those of the other Party, are erroneous, incomplete, ambiguous or impracticable, it shall immediately notify the other Party of this and the consequences it recognizes. The parties will then seek and strive to reach a solution that is in line with their interests, if necessary in accordance with the provisions on changes in performance.
- The Parties may appoint contact persons and their deputies to each other, who shall responsibly and competently manage the performance of the contractual obligations for the Party appointing them. The parties shall notify each other without delay of any changes in the persons named. Until receipt of such notification, the previously named contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their previous power of representation.
- The customer undertakes to cooperate in the processing of the order. In particular, he shall provide us with all provisions pursuant to § 5 para. 1 as well as other documents, data, information, and contacts necessary for the performance of the service in due time and free of charge.
- Further obligations to cooperate on the part of the customer result from the respective offer. Unless otherwise agreed, the customer shall cooperate at its own expense.
- The acts of cooperation to be performed by the customer represent real obligations and not merely duties. We shall be entitled to separately invoice any additional expenses incurred due to the improper or untimely performance of duties to cooperate at the agreed rates or, in the absence of an agreement, at our current hourly rates. Our further claims or rights remain reserved.
- The customer is responsible for the backup of his data.
4 Project management
- Unless otherwise specified in the offer, we shall be responsible for project management.
- The contracting parties shall designate contact persons and their deputies to each other, who shall responsibly and expertly manage the fulfillment of the contractual obligations for the contracting party designating them.
- The parties shall notify each other without delay of any changes in the persons named. Until receipt of such notification, the previously named contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their previous power of representation.
- Do we take over the project management acc. Para. 1 is our contact person head of the project and accordingly responsible for all questions arising during the project as well as for requesting and receiving all information and other cooperation owed by the customer.
- The contact persons shall communicate at regular intervals on progress and obstacles in the implementation of the contract in order to be able to intervene in the implementation of the contract in a guiding manner if necessary.
- Agreed changes to the services are to be documented by the project manager and confirmed in writing by the customer.
5 Provisions by the customer
- If the customer provides us with videos, pieces of music, texts, images, logos, drawings, data, templates, documents, etc. (“Provided Materials”) for use in the performance of our services, the customer warrants that such Provided Materials are free from defects and do not infringe any third party rights, relevant laws or regulations or provisions of these GTC.
- Unless expressly agreed otherwise, the Customer itself shall be responsible for compliance with the obligations vis-à-vis the collecting societies (such as, for example, GEMA or VG-Wort), in particular any notification obligations, the obtaining of corresponding consents and the payment of fees with regard to its provisions.
- Its acts of cooperation shall also include, in particular, the timely provision of information, expert staff, means of communication and connections, as well as hardware and software, and making premises accessible, insofar as this is necessary.
- The intellectual property rights to the Customer’s Provisions shall remain with the Customer or its licensors. Customer hereby grants to us (or procures for us through the respective intellectual property rights holders) a non-transferable, non-exclusive, worldwide, royalty-free right to use Customer’s Provisions for the term of this Agreement for the purpose of performing our obligations under this Agreement.
6 Change requests of the customer
- If the customer wishes to change the contractually determined scope of the services to be provided by us after conclusion of the contract, he shall express this wish for change to us in writing. The further procedure is governed by the following provisions.
- We can dispense with the procedure under paragraphs 3 to 9 and perform the services directly; this applies in particular to change requests that can be checked quickly and can probably be implemented within 2 working hours.
- The customer is entitled to withdraw its change request at any time until the conclusion of the change procedure; the initiated change procedure shall then end.
- We will check what effects the desired change will have, in particular with regard to remuneration and deadlines. If we recognize that services currently to be provided cannot be carried out or can only be carried out with a delay due to the review, we shall inform the customer of this and point out to him that the request for change can still only be reviewed if the affected services are postponed for an initially indefinite period of time. If the customer declares his agreement with this postponement, we will carry out the verification of the change request.
- After reviewing the change request, we will explain to the customer the effects of the change request on the agreements made. The presentation shall contain either a detailed proposal for the implementation of the change request or information on why the change request cannot be implemented.
- The Contracting Parties shall immediately coordinate the content of a proposal for the implementation of the change request and attach the result of a successful coordination to the text of the agreement to which the change relates as a supplementary agreement.
- If no agreement is reached or if the amendment procedure ends for any other reason, the original scope of services shall remain in effect. The same shall apply in the event that the customer does not agree to a postponement of the services for the further performance of the test pursuant to paragraph 2.
- The dates affected by the change procedure shall be postponed as necessary, taking into account the duration of the review, the duration of the vote on the change proposal and, if applicable, the duration of the change requests to be executed plus a reasonable start-up period. We will notify the customer of the new dates.
- The customer shall bear the expenses incurred as a result of the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. In the event that an agreement on daily rates has been reached between the parties, the expenses shall be calculated according to these rates, otherwise according to the Contractor’s usual remuneration.
7 Delivery time
- In the absence of any other agreement, our delivery periods and delivery dates refer to the time of transmission of our services to the customer.
- We are entitled to make partial deliveries or render partial services, provided that this is reasonable for the customer.
- We shall notify the customer of any delays in performance immediately after we become aware of them. We are not responsible for delays in performance due to force majeure (e.g. strike, lockout, official orders, general disruptions in telecommunications, etc.) and circumstances within the customer’s sphere of influence (e.g. failure to provide cooperation in good time, delays caused by third parties attributable to the customer, etc.) and shall be entitled to postpone the performance of the affected services by the duration of the hindrance plus a period of grace. to be postponed for a reasonable start-up period. Furthermore, this shall also apply to procurement, manufacturing and other delivery disruptions of our suppliers within the scope of a covering transaction for which we are not responsible. Our further claims or rights, in particular from default of acceptance by the customer, remain reserved.
- In the event of a delay in performance, the customer shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable grace period with a warning of rejection, which the customer has set us after the occurrence of the delay in performance.
- Claims of the customer for damages or reimbursement of futile expenses in the event of a delay in performance for which we are responsible shall only exist in accordance with § 12 and shall otherwise be excluded.
8 Release by the Customer; Acceptance for Work Performed; Corrections
- Prior to publication or reproduction of a media service (job advertisement, poster, flyer, etc.), we will forward the service owed by us to the customer for review and approval by the customer. The customer shall immediately release our performance in writing. An e-mail is sufficient for the written form. Until the release by the customer, we are not obligated to further subsequent services.
- Insofar as we owe a specific work result (“work performance”), the customer shall accept our performance after notification of completion and making it accessible by us. If the customer does not consider the work performed to be essentially in accordance with the contract, he must notify us of his complaints within two weeks of the work being made available. If the customer does not raise any objections within the aforementioned period, acceptance shall be deemed to have been tacitly granted. We will draw the customer’s special attention to this significance of his behavior with the notification of completion.
- In the case of creative work services, a correction loop is included in the agreed consideration, unless otherwise defined in the offer.
9 Remuneration and payment
- The remuneration results from the respective offer.
- Unless otherwise stated in our offer, the remuneration agreed with the customer shall be exclusive of travel expenses and other third-party costs incurred.
- The statutory value added tax is not included in the price and shall be shown separately in the invoice at the statutory rate applicable on the date of invoicing.
- In the absence of any other agreement, the remuneration shall be due for payment without deduction immediately after the service has been provided and the invoice has been issued and shall be paid within 10 calendar days. The date of receipt by us is decisive for the date of payment.
- In the event of default in payment, you shall pay interest on arrears in the amount of 9 (nine) percentage points above the respective base interest rate per annum. Furthermore, we can charge a flat fee in the amount of 40 euros. We reserve the right to claim higher interest and/or further damages. The lump sum pursuant to sentence 2 shall be credited against any damages owed to the extent that the damage is due to costs of legal prosecution. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.
- We shall be entitled to perform or provide outstanding services only against advance payment or provision of security if, after the conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and which jeopardize the payment of our outstanding claims by the customer under the respective contractual relationship.
10 Rights of use, advertising
- We grant the customer the rights of use to the final versions of our work results created for the customer that are necessary for the respective concrete purpose of the contract. Unless otherwise agreed, only the simple right of use is transferred. Furthermore, the rights of use are limited to the territory of the Federal Republic of Germany. The rights of use do not include the right to transfer them to third parties. This requires a separate agreement with us.
- The aforementioned rights of use to the final versions of our work results shall only be transferred to the customer upon full payment of our performance. Until full payment of the remuneration, we revocably tolerate use by the customer. If the customer is in default of payment, our toleration of use ends automatically.
- Our drafts and final versions of our work results may not be changed or imitated in whole or in part without our express consent. We are not obliged to hand over raw data or raw material (“raw data”) of data or artwork to the customer. If we release raw data, we retain the rights to use it. The transfer of the raw data to third parties, as well as any modification or further processing of the raw data requires our separate express written consent.
- Our addresses and contact persons disclosed to the customer or coming to the customer’s knowledge in the course of the cooperation (in particular: Contact persons, e-mail addresses, addresses, telephone and/or fax numbers) may be used by the customer exclusively with our express consent, during the period of cooperation and only to the extent necessary for this. They may not be made accessible to third parties or brought to their attention in any other way.
- We have the right to be named as the author on reproduction pieces.
- We may name the customer as a reference customer on our website or in other media and issue a press release about the order with the customer. We will coordinate a press release with the customer before publication. We are entitled to use our work results for self-promotion.
11 Infringements of property rights
- The customer shall inform us immediately of any claims asserted by third parties.
- In the event of infringements of property rights, we shall be entitled – without prejudice to any claims for damages on the part of the customer – at our own discretion and at our own expense with regard to the performance concerned to
(a) after prior consultation with the customer, make changes to the performance that ensure that an infringement of property rights no longer exists or
(b) to acquire the necessary rights of use for the customer.
12 Defect Rights for Work Performed
Insofar as we owe a specific work result (“work performance”), the following provisions of this paragraph shall apply to the customer’s defect rights.
4. we are entitled to make the subsequent performance owed dependent on the customer having paid the remuneration due. However, the customer shall be entitled to retain a part of the remuneration that is reasonable in relation to the defect.
5. we shall not be liable for defects insofar as
(a) the customer has made changes to the work performance rendered by us,
(b) a provision of the customer was defective, unless this change or provision was without influence on the occurrence of the defect.
6. shall, before asserting claims for subsequent performance, examine with due diligence whether a defect in the work performance subject to subsequent performance exists. If an alleged defect is not subject to the obligation of subsequent performance (pseudo-defect), we may charge the customer for the work performed for verification and rectification of the defect at the applicable rates of remuneration plus the expenses incurred, unless the customer could not have detected the pseudo-defect even by exercising due care.
7. if the supplementary performance fails, the customer shall be entitled to demand withdrawal or reduction in accordance with the statutory provisions or to remedy the defect itself. The provisions of § 13 shall apply to the customer’s claims for damages or reimbursement of futile expenses.
8. the period of limitation for all claims for defects of the customer is one year. The limitation period begins with the acceptance by the customer. In the event of liability for damages due to intent or gross negligence, in the event of fraudulent concealment of the defect, in the event of damages arising from injury to life, limb or health and in the event of guarantees (§ 639 BGB), the statutory limitation periods shall apply, as shall claims under the Product Liability Act.
9 Paragraph 6 shall apply mutatis mutandis to the limitation of other claims of the customer of whatever kind against us based on a defect in performance, unless the application of the statutory limitation period would result in a shorter limitation period in the individual case. Notwithstanding paragraph 6, the limitation period for other claims pursuant to sentence 1 shall commence with the statutory commencement of the limitation period.
- Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
- We shall be liable for damages – irrespective of the legal grounds – in the event of intent or gross negligence. In the event of simple negligence, we shall only be liable
(a) for damages resulting from injury to life, body or health,
(b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which you may regularly rely and trust); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
- The provisions resulting from para. 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the performance. The same applies to your claims under the Product Liability Act.
- The above limitations of liability shall apply mutatis mutandis to the reimbursement of futile expenses in the case of work performance (with the exception of reimbursement of expenses in the context of subsequent performance pursuant to Sections 439 (2), 635 (2) BGB).
- We shall not be liable for the loss of data insofar as the damage is due to the customer’s failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
- The documents, knowledge and experience provided to the other contracting party may be used exclusively for the purposes of this contract and may not be made available to third parties unless they are intended to be made available to third parties or are already known to the third party. Third parties do not include auxiliary persons such as freelancers, subcontractors, etc. who are called in to carry out the contractual relationship.
- The confidentiality obligation shall also apply beyond the termination of the contractual relationship. A corresponding duty of confidentiality shall be imposed on the auxiliary persons engaged.
- If a contracting party so requests, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, unless the other contracting party can claim a legitimate interest in such documents.
15 Final provisions
- If the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for any disputes arising from the business relationship between us and the customer shall be our registered office in Stuttgart. We are also entitled to bring an action at the customer’s place of business as well as at any other permissible place of jurisdiction.
- The relations between us and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.
- Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.