GTC

General Terms and Conditions of HGD Media GmbH

§ 1 General; scope of application

(1) These General Terms and Conditions (GTC) shall apply to all contracts of HGD Media GmbH, Bürgermeister-BombeckStr. 3, 22851 Norderstedt (hereinafter: “HGD Media” or “we”) with our customers. They shall also apply in their most recently included version to our future deliveries and services, even if they are not mentioned again when the contract is concluded. Deviating agreements are only valid within the framework of an individual agreement with us.

(2) Our GTC and contractual offers are directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code). These GTC do not apply to consumers.

§ 2 Object of the service

(1) We offer the customer various services in the area of providing an Internet presence. Our service portfolio includes the creation of websites, the hosting of websites on a web server and the provision of the pages of the website for retrieval via the Internet. There are further service options that the customer can choose. The scope and subject matter of the contractual service are set out in the respective contract. When creating websites, the provision of text content and graphics (§ 3 No. 4.) shall be carried out by the customer.

(2) Furthermore, we offer maintenance and support for the website created for the customer. Such technical support services and regular maintenance are part of our agreements on website design & hosting (so-called Internet system contracts). Otherwise, these services are provided and invoiced by us on the basis of individual agreements.

(3) Insofar as HGD Media provides additional services and performances free of charge outside the contractual agreement, these can be discontinued at any time. There is no entitlement to the continuation of these services. Our liability for defects is excluded for additional services provided free of charge, unless there is a case of intent, gross negligence or injury to life, limb or health.

(4) The contract for the service shall be concluded by confirmation of a binding offer by the customer or by binding confirmation of a contractual offer by the customer by HGD Media. Binding orders require text form. The subject matter of the contract is exclusively the agreed service.

(5) HGD Media shall owe the respective services agreed with the customer. Subject to a separate agreement, HGD Media shall in no case owe the achievement of a specific economic or advertising success over and above the contractual service, in particular not the achievement of specific sales, access figures, reach, search engine positioning or similar.

(6) Subject to an express agreement to the contrary, we shall provide our services on the business premises of HGD Media. We are entitled to transfer the provision of the contractual service in whole or in part to third parties, whereby our liability for the contractual obligations incumbent upon us shall remain unaffected.

(7) Changes to the agreed service shall require agreement in text form (email, fax, letter) in order to be effective. Insofar as the realization of a change requested by the customer affects the conditions of performance, HGD Media may demand an appropriate adjustment of the remuneration and the postponement of any agreed deadlines.

(8) HGD Media shall provide the agreed services for the customer. HGD Media shall not assume any liability towards third parties unless expressly agreed otherwise. The resale of our services, in particular the subletting of the storage space provided to the customer to third parties, is only permitted with our express consent. In the event of consent, the provisions of these GTC shall be imposed on the third party. The customer shall be liable to us for compliance with these GTC by the third party in the same way as he himself would be liable for compliance with them.

(9) Insofar as the subject matter of the contract is the provision of storage space and the online provision of Internet pages, the subject matter of our contractual service is not the successful retrieval of the data in every case, but the hosting with the respectively agreed availability, otherwise the availability to be expected in good faith with regard to customary practice. In particular, we are entitled to interrupt the online provision if there are significant reasons for doing so, such as care and maintenance measures, the elimination of security problems and defects, measures to improve and further develop the hardware and software. Where possible, we only carry out care and maintenance measures during the night with as little disruption to availability as possible. We shall give the customer reasonable advance notice of planned maintenance measures. Agreed availability and performance parameters shall remain unaffected.

§ 3 Cooperation and participation of the customer

(1) HGD Media and the customer shall each appoint a responsible contact person who can make decisions or bring them about at short notice. The contact persons or timely designated deputies shall be available for necessary information and coordination during normal business hours (on working days between 9 a.m. and 4 p.m.) and can be reached at short notice if necessary.

(2) HGD Media generally communicates with the customer by email. The customer must therefore ensure that he can receive the e-mails sent by us. In addition, the customer undertakes to reply to emails that require a response within a reasonable and appropriate period of time in order to enable us to process the customer’s concerns in a timely and efficient manner.

(3) The customer shall provide HGD Media with all information essential for the order and inform us in good time of any problems or change requirements. The customer shall provide HGD Media with any access data (login/passwords/addresses) required for the service in good time or, if no deadline has been agreed, on request. HGD Media may consider the information provided by the customer to be correct and complete and shall not be obliged to investigate, but shall inform the customer of any inaccuracies it recognizes. Instructions from the customer must be issued in good time so that a reasonable implementation period remains. The customer shall inform us immediately in text form of any changes to essential contractual data such as address and account details.

(4) The customer’s obligations to cooperate include, in particular, the timely provision (unless otherwise agreed, within 14 days of commissioning) of the texts and images to be used for the website, unless they are to be provided by HGD Media on the basis of an express agreement.

(5) The customer shall only provide us with content, templates and work materials whose use by us in accordance with the order does not infringe any third-party rights. The same applies to other contributions, such as customer domains.

(6) The customer shall create all the conditions necessary for the proper execution of the order in its sphere of operation. This applies in particular to the hardware and software required for the implementation of the service as well as storage space, unless it is expressly to be provided by us.

(7) The customer shall check data and data carriers for viruses and other malware using an up-to-date, state-of-the-art virus protection program before handing them over or transferring them to HGD Media. The customer shall back up data originating from his sphere without being requested to do so prior to transfer to HGD Media or processing by HGD Media. Our liability in the event of data loss shall be limited to the recovery costs for a careful backup corresponding to the importance of the data.

§ 4 Intermediate steps, acceptances and deadlines

(1) The customer must check the contractual conformity of the services as well as the preliminary and interim results immediately upon receipt and issue acceptance without delay. We are entitled to demand interim acceptance upon completion of individual work sections. Acceptance of a service shall be deemed to have been granted in accordance with § 640 Para. 2 BGB if it is not refused by the contractual partner within 7 days of handover with a meaningful justification or if the contractual partner uses the work result. In the case of previous interim acceptances, only the contractual conformity of the last part of the service handed over and the interaction of all parts shall be the subject of the acceptance test for the last partial service. Acceptance shall be declared in text form at the request of HGD Media. In the event of any refusal of acceptance, the obstacles to acceptance must be described in detail in such a way that we are able to remedy the defect. A defect is a deviation of the service provided by us from the agreed execution or – insofar as no agreement has been made with regard to the execution – from the form of execution that the customer could expect in good faith with regard to customary practice. If there is no defect or if the customer complains for the first time about circumstances which he was already able to recognize during a previous acceptance test, the request for rectification shall be deemed to be a change request.

(2) The creation of Internet pages by us takes place in three steps:

a) Creation of a rough concept, which contains the framework conditions for the website, for example the technology used, number of subpages, technical requirements and other key points.

b) Creation of a layout proposal that illustrates the visual design of the website.

c) Programming the website on the basis of the layout approved by the customer. As a rule, we make the website available online with password protection and provide the customer with the access data.

Each step is subject to customer approval and the customer has 2 (two) correction loops. This means that the customer is given two opportunities to communicate change requests. Unless otherwise agreed, the customer must notify us of his change requests in text form, in an orderly and feasible manner within 7 days of the provision of the respective intermediate step. In particular, feasibility is not given if the customer complains unspecifically of “displeasure” or a deviation from his ideas that have not become part of the contract. The implementation of change requests that lead to an extension of the service shall be remunerated additionally, whereby we shall draw the customer’s attention to this fact. Section 4 (1) shall apply to acceptances and their declaration.

(3) The delivery or performance date or the delivery or performance period – hereinafter collectively referred to as “delivery date” – shall be agreed in accordance with the anticipated performance capacity of HGD Media and shall be subject to unforeseen circumstances and obstacles, in particular force majeure, government measures, sabotage or non-delivery, incorrect delivery or late delivery for which HGD Media is not responsible. Such events shall extend the delivery date accordingly, even if they occur during a delay that has already occurred. Any grace period set by the contractual partner in this case shall also be extended by the duration of the unforeseen event. If such events lead to a delay in performance of more than eight weeks, both the contractual partner and HGD Media may withdraw from the contract, provided that they are not responsible for the delay in delivery/performance.

(4) HGD Media shall only be in default on the basis of a reminder from the customer in text form, insofar as there is no fixed-date transaction. Binding delivery dates shall only apply with our express confirmation.

(5) If the customer withdraws from the contract in addition to asserting claims for damages for delay or asserts claims for damages instead of performance, he must have set us a reasonable grace period after expiry of the performance period. However, our liability is excluded if the damage would have occurred even if the delivery deadline had been met.

(6) If timely performance fails due to inadequate fulfillment of cooperation obligations by the customer, this shall not constitute a case of default on our part. If we are prevented from performing our services due to the customer’s inadequate fulfillment of obligations to cooperate, the deadlines for the contractual services incumbent upon us shall be extended by the duration of the hindrance plus a reasonable resumption period; contractual terms of continuing obligations between us and the customer shall be extended accordingly.

§ 5 Domains

(1) The registration of domains shall, insofar as owed by us, take place at a suitable location to be freely selected by us as an authorized registrar, intermediate registrar or directly. When procuring and/or maintaining Internet domains, HGD Media shall only act as an intermediary in the relationship between the customer and DENIC or another organization for domain allocation. The various top-level domains are administered by a large number of different, mostly national organizations. Each of these domain registry organizations has drawn up different terms and conditions for the registration and administration of TopLevelDomains, the associated sub-level domains and the procedure to be followed in the event of domain disputes. Insofar as TopLevelDomains are the subject of the contract, the corresponding terms and conditions of the respective organization also apply. Insofar as .de domains are the subject of the contract, the DENIC Domain Terms and Conditions ( https://www.denic.de/domains/dedomains/domainbedingungen/), the DENIC Domain Guidelines (https://www.denic.de/domains/dedomains/domainrichtlinien/). We have no influence on the allocation of domains by such bodies and accept no liability for the success (allocation) or existence of domain registrations or for the freedom of domains from conflicting rights of third parties.

(2) The customer guarantees that the domains used by him within the scope of the contractual service or to be procured by us do not infringe any third-party rights and/or statutory provisions. This also applies in particular with regard to trademarks and other name and trademark rights. The customer shall indemnify us and the third parties engaged by us to set up and maintain the domains against costs and losses due to infringements of rights by customer domains.

(3) The customer shall always remain the owner of the domain and shall coordinate any changes (in particular termination, owner or provider change and request for a password for the provider change (Authinfo)) with us in text form in advance. A form shall be used to coordinate any changes, which we shall make available to the customer.

(4) If the customer cancels the domain with his (previous) provider or the domain registrar, he is obliged to monitor the date of cancellation and to ensure that the domain registration is maintained.

(5) The Customer shall notify us of existing e-mail addresses or e-mail addresses to be set up and continuously back up the contents of EMai mailboxes.

(6) We shall not be liable for the loss of a domain registration or of content retrievable or stored under the domain in question or of the content of e-mail inboxes there due to the customer’s failure to comply with the above obligations.

(7) We are entitled to release domains of the customer at the end of the contract if the customer does not initiate a change of provider or the transfer of the domain upon request within a reasonable period of time.

§ 6 Rights of use

(1) We shall grant the customer the rights of use to the service result (final result) required for the respective intended use. Unless otherwise agreed in writing, the remuneration shall cover the granting of simple, non-exclusive rights of use for the intended purpose, form of use and period of use in accordance with the original order. Any further use, in particular in or on media not expressly covered, in a different geographical area, in edited form (unless the editing is necessary for the agreed use) and/or in a different period of time shall require an express additional grant of rights. Transfer of rights of use and sublicensing require our consent in text form. Unless otherwise agreed, all rights to interim results shall remain with us. In the event of unauthorized use, the customer shall be obliged to pay for such use, whereby our further claims and rights shall remain unaffected.

(2) All grants of rights are subject to the condition precedent of full payment of the remuneration owed for the service.

(3) We may also make use of third-party rights (third-party license material such as software, digital images, etc.) for the services. The customer may only use this third-party licensed material in connection with and within the scope of the agreed use of our contractual services and must comply with the agreed framework conditions, in particular the specifications for copyright attribution. Insofar as we procure image material from the Adobe Stock service of Adobe Systems Software Ireland Limited (hereinafter: “Adobe”), special conditions apply in accordance with the following § 6a. Otherwise, we procure third-party material in the name and for the account of the customer as far as possible and coordinate the procurement of third-party material with the customer.

(4) We shall always be entitled, even if exclusive rights of use are granted, to use the results of the services and their designs for our own advertising purposes, in particular also on the Internet, in particular also as a reference, naming the customer.

§ 6a Adobe Stock images

(1) We transfer to you the simple rights of use granted to us by Adobe for image material that we obtain from Adobe Stock.

(2) This transfer of rights of use is subject to the Adobe Stock Additional Terms of Use (hereinafter: “Adobe Terms of Use”), which apply accordingly. These Adobe Terms of Use can be found at http://www.adobe.com/go/stockterms_de .

(3) Unless otherwise agreed, you are entitled to use Adobe Stock content in accordance with the Adobe Terms of Use under a “Standard License” pursuant to Section 3.1. Please note the resulting restrictions, in particular in Sections 3 and 4 of the Adobe Terms of Use.

§ 7 Terms of payment

(1) The prices agreed for the services offered by HGD Media shall apply. The remuneration due in each case shall be due for timely payment at the agreed time, otherwise upon invoicing without deduction. Unless otherwise agreed, invoicing shall be based on the respective service package ordered. Unless expressly stated otherwise, prices are net, plus the applicable value added tax.

(2) The remuneration shall be paid within 10 days of the due date.

(3) We are entitled to demand appropriate advance payment for our services. In particular, we may defer the activation of Internet domains and the procurement of third-party content until the customer has paid the expected costs charged to him. The net price is the total amount agreed for the creation of the website before any changes, excluding VAT and remuneration for any other services such as hosting.

(4) If the customer is in default or if there are circumstances for which we are not responsible which cast doubt on the customer’s full and timely performance, we shall be entitled to suspend our performance and to make the continuation of the performance dependent on the payment of all expected costs for the contractual performance still incumbent on us (including in particular our remuneration). We shall inform the customer of this measure in text form before discontinuing our service, setting a deadline that is sufficient to effect payment. If the set payment deadline expires in whole or in part without payment, we shall be entitled to terminate the service immediately to the exclusion of any claims by the customer. In addition, we are entitled to terminate the contract extraordinarily. The term of fixed-term contracts is automatically extended by the duration of a justified suspension of services, unless we make use of our right of termination.

(5) The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. The customer shall only be entitled to set-off if his counterclaims are recognized by us or have been legally established or if the counterclaims arise from the same contractual relationship.

(6) The customer must raise objections to our invoices in text form within one month of receipt of the invoice, stating the reason for the objection. We undertake to make reference to this in our invoices.

§ 8 Term, termination of contract, notice of termination

(1) Contracts that include consulting, design, programming of an Internet presence (web design, programming, CMS) as well as hosting and support (web service) – so-called Internet system contracts – can be terminated at the end of the minimum contract term.

(2) The agreement of the minimum contract term is intended to ensure that the expenses incurred by us – in particular at the beginning of the contract term – for the realization of the success are amortized.

(3) Unless the contract is terminated with a notice period of 3 months to the end of the respective minimum contract term, the contract with the web service and domain services shall be extended by one year. If the contract is then not terminated with a notice period of 3 months to the end of the term, it shall be extended by one year in each case.

(4) If the entire contract (Internet system contract) is terminated before the end of the minimum contract term, we may demand the total remuneration agreed up to the end of the minimum contract term less any expenses saved or other amounts to be offset in accordance with Section 648 sentence 2 BGB. 2 BGB. Services already rendered by us shall be remunerated in full. Services not provided by us shall be remunerated at 90% of the agreed remuneration, unless one of the contracting parties proves that a higher or lower amount is to be offset in accordance with § 648 S. 2 BGB. In the event of such termination, we shall settle our final remuneration taking into account any payments already made by you.

(5) The right to terminate for good cause remains unaffected.

(6) After termination of the contract, we will block all of the customer’s data stored on our systems and delete it permanently after 4 weeks. The customer is responsible for making backup copies of e-mails and website data and for moving the server to another provider.

§ 9 Terms of use, customer obligations

(1) The customer shall be solely responsible for all content of the website created by HGD Media for the customer. The customer must ensure that the content published by him does not violate legal regulations (in particular criminal and competition law), morality or the rights of third parties (in particular trademarks, names, copyrights and other intellectual property rights as well as data protection rights).

(2) The customer shall grant HGD Media the copyright reproduction rights and other authorizations to its information and forwarded data and images that are necessary for the performance of this contract.

(3) The customer is obliged,

a) not to misuse the access options to the website created by HGD Media and to refrain from illegal and/or unlawful actions when using or providing its websites or the storage space provided to the Customer. In particular, the customer is prohibited from disseminating or making accessible criminal or illegal content of any kind via the services of HGD Media.

b) to refrain from and avoid sending unsolicited e-mails using the services of HGD Media; the customer authorizes us to name the customer as the sender in the event of our claim for unsolicited advertising sent via the customer’s user account. In this case, we shall inform the customer of this circumstance without delay.

c) to ensure compliance with legal regulations and official requirements, insofar as these are relevant to the current or future use of the services of the website created by HGD Media.

d) (unless otherwise agreed) to provide a data protection declaration for the website that meets the requirements of Art. 13 and 14 GDPR and fully covers the processing of personal data carried out with it. The customer is advised that this data protection information must always be up-to-date and correspond to the specific processing operations. Older texts available to the customer may not meet these requirements.

e) to comply with the applicable statutory provisions on data protection and data security in all other respects. The customer must check the legality of data uploaded from the Internet that is accessible to third parties at appropriate intervals.

f) to notify HGD Media immediately of any recognizable defects or damage relating to the website (fault reports) and to take all measures that make it possible to identify the defects or damage and their causes or to facilitate and accelerate the elimination of the fault.

g) after submitting a fault report, to reimburse HGD Media for the expenses incurred by the inspection of its facilities if and to the extent that the inspection reveals that a fault occurred in the customer’s area of responsibility (outside the defined contract and scope of services).

(4) If the customer breaches the obligations specified in paragraph 3 a) and b), HGD Media shall be entitled to terminate the contractual relationship immediately and in other cases after unsuccessful warning without notice.

(5) The customer is obliged to comply with the provisions on provider identification – in particular pursuant to Section 5 of the German Telemedia Act – as well as all other applicable provisions for the content hosted by us for the customer. The customer must take the relevant statutory provisions into account in its requirements for the design of the website and communicate them to us in text form. We are not obliged to investigate or advise in this respect.

(6) The customer shall indemnify us against all costs, damages and expenses incurred by us as a result of legal infringements for which the customer is responsible. This includes, in particular, the statutory costs of appropriate legal action. The customer shall be liable for all actions taken using his user account. This does not apply if the customer can prove misuse based on actions for which we are responsible.

§ 10 Defects

(1) Claims for defects are excluded if a defect is based on faulty instructions, files and material of the customer or on preliminary work by third parties for which we are not responsible. Otherwise, the customer’s claims for defects shall initially be limited to subsequent performance. The customer reserves the right to reduce the remuneration or withdraw from the contract if the subsequent performance fails or is refused without reason.

(2) The customer’s claims for defects shall lapse within one year of the transfer of risk. This shall not apply if the law prescribes longer periods and in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by HGD Media and in the event of fraudulent concealment of a defect. The period shall commence at the time of the transfer of risk. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.

§ 11 Limitations of liability

(1) HGD Media shall be liable without limitation insofar as the cause of the damage is based on intent or gross negligence. HGD Media shall also be liable for the slightly negligent breach of material obligations (obligations whose breach jeopardizes the achievement of the purpose of the contract) and for the breach of cardinal obligations (obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies), but in each case only for foreseeable damage typical for the contract. HGD Media shall not be liable for the slightly negligent breach of other obligations.

(2) Furthermore, HGD Media shall not be liable for facilities and/or services outside its own sphere of influence, e.g. for the non-availability of the website created due to Internet disruptions etc.

(3) The limitations of liability in paragraph 1 shall not apply in the event of injury to life, limb or health, for a defect following the assumption of a guarantee for the quality of the product and in the event of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.

(4) If the liability of HGD Media is excluded or limited, this shall also apply to the personal liability of its employees, representatives and vicarious agents and, by analogy, to claims for reimbursement of expenses.

§ 12 Confidentiality/data protection

(1) We treat all confidential information that we receive from the customer prior to and within the scope of the contract as confidential. It shall be used exclusively for contractual purposes.

(2) HGD Media expressly draws the customer’s attention to the fact that data protection for data transmissions in open networks, such as the Internet, cannot be fully guaranteed according to the current state of the art. The customer is aware that the provider can view the web pages stored on the web server and possibly also other customer data stored there at any time from a technical point of view. Other Internet users may also be technically able to intervene in the network security without authorization and control the communication traffic. The customer is fully responsible for the security and backup of the data transmitted by him to the Internet and stored on web servers. In particular, the customer must regularly back up his data using measures appropriate to the importance of the data. In the event of data loss, our liability shall be limited to the amount that would have been incurred for the restoration of the data if the data had been appropriately and carefully backed up.

§ 13 Final provisions; place of performance; place of jurisdiction

(1) All legal relationships arising from the use of the services provided by HGD Media shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) The place of performance and jurisdiction shall be the registered office of HGD Media if the customer is a merchant, a special fund under public law or a legal entity under public law or if the customer does not have a general place of jurisdiction within the Federal Republic of Germany. However, HGD Media shall also be entitled to sue the customer at the customer’s general place of jurisdiction.

(3) If a provision of this contract is invalid, the remaining provisions shall remain unaffected.

Status: 03.06.2022