Table of contents
A. GENERAL REGULATIONS
§ 1 Scope of application
(1) All deliveries and services of KEMWEB GmbH & Co. KG, Im Niedergarten 10, 55124 Mainz (hereinafter referred to as "KEMWEB") to its customers shall be performed exclusively on the basis of the following General Terms and Conditions and the Special Terms and Conditions subsequent thereto in the version applicable at the time of conclusion of the contract. In the event of contradictions, the Special Provisions shall take precedence over the General Provisions. Unless expressly agreed in writing, deviating terms and conditions shall not apply. This shall also apply if KEMWEB provides the service to the customer without reservation in knowledge of the customer's General Terms and Conditions. (2) Customers within the meaning of these Terms and Conditions are exclusively entrepreneurs, legal entities under public law and associations (hereinafter referred to as "Customer"). Entrepreneurs in the sense of the Terms and Conditions are natural persons or legal entities or partnerships with legal capacity acting in the exercise of their commercial or independent professional activity when concluding the contract with KEMWEB. § 2 Change of performance (1) If the customer wants to change or extend the agreed subject matter of performance substantially due to changed or new requirements, he has to inform KEMWEB in text form about his wish for change. KEMWEB will check what effects the desired change will have in particular with regard to the financial and time expenditure and the time estimates and will inform the customer thereof. KEMWEB shall either submit a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented. (2) KEMWEB may refuse the execution of a change or extension request of the customer if the changes or extensions are not feasible or if their execution is unreasonable for KEMWEB within its operational capacity. (3) In case of a positive result of the examination the contracting parties shall immediately agree on the content of a proposal for the implementation of the change request and document the result. (4) If no agreement is reached, the original scope of services shall remain unchanged. (5) Any deadlines possibly affected by the change procedure shall be postponed to the extent 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 implemented plus a reasonable start-up period. (6) The Customer shall bear the expenses incurred by the change request. This includes in particular the examination of the change request, the preparation of a change proposal and any downtimes. The expenses shall be charged in accordance with the Contractor's usual remuneration. § 3 Provision of services, place of performance (1) For the purpose of joint coordination for the ongoing provision of services KEMWEB shall, if required, provide a ticket system to be used by the customer in the course of the cooperation. Requests will be processed depending on the receipt and priority of the tickets. (2) KEMWEB shall render its services at its own business premises. If the parties agree on a place of performance which differs from the registered office of KEMWEB, the customer has to pay additional travel expenses. The amount of the costs shall be determined by KEMWEB's offer. § 4 Project management, contact persons (1) Immediately after the conclusion of the contract the parties shall each appoint a project manager or contact person and a deputy who shall be exclusively responsible for the other party for all questions and all agreements of any kind concerning the project. The parties warrant that the project managers and deputies to be appointed by them are fully authorized to make all decisions concerning the project. (2) The parties shall be free to replace the project managers or contact persons designated by them and their deputies by other persons. The contracting party shall be notified of any changes in text form (§ 126b BGB) without delay. When making changes, both parties shall ensure that there are no disruptions to the course of the project and that newly appointed persons have all the necessary information and expertise required for the smooth further course of the project. § 5 Rem uneration (1) The remuneration specified in the offer shall be due for the services of KEMWEB. If no remuneration is stated in the offer, the current price lists of KEMWEB at the time of the preparation of the offer shall apply. Presentations by KEMWEB shall be charged according to KEMWEB's time and effort, unless otherwise agreed. (2) The customer shall bear travel costs and expenses actually incurred (e.g. train tickets, gasoline, hotel costs, etc.) and claims for remuneration of third parties arising in the course of the performance of the contract after prior agreement and against proof. Travel time of KEMWEB shall be reimbursed. Special expenses such as communication, shipping and duplication costs incurred by KEMWEB at the express request of the customer shall be charged to the customer at cost price. (3) All price quotations and agreements are in Euro and do not include the statutory value added tax valid at the time of performance. (4) Payments are due in accordance with the agreements in the offer (5) Invoices in ongoing projects are issued monthly at the end of each month. (6) Payments are due 10 days after invoicing. (7) In case of delayed payment, interest shall be charged at the respective bank rates for overdraft facilities, however, at least the statutory interest on arrears in the amount of 9 percentage points above the base interest rate. KEMWEB shall be entitled to additionally claim a lump sum for damages in the amount of 40 EUR. KEMWEB reserves the right to prove and claim a higher damage caused by default. (8) In case of default of payment by the customer KEMWEB shall be entitled to assert a right of retention both from the same contractual relationship and from any other contractual relationships with regard to services to be rendered to the customer. (9) KEMWEB shall be entitled to change the applicable prices even during an ongoing contract if a completion date is or has been agreed upon more than six months after the conclusion of the contract and there are cost increases (increased procurement costs, taxes or duties). The customer shall be notified of price adjustments without delay. If the increase amounts to more than 5% of the agreed remuneration, the customer shall be entitled to terminate the contract. § 6 Duties of the Customer (1) The customer shall support KEMWEB in the performance of the services owed under the contract. The duties to cooperate include in particular the provision of information, documentation and documents from the customer's sphere which are necessary for the performance of the service. Such cooperation shall be the principal obligation of the Customer. (2) If necessary the customer shall guarantee KEMWEB and the persons employed by KEMWEB access to the place of performance and shall encourage his employees to cooperate with the contractor as far as this is necessary for the performance of the service. (3) If the parties have agreed on the provision of the services by way of remote maintenance, the customer shall provide the necessary technical prerequisites for this at his own expense. (4) The customer shall provide the cooperation expressly mentioned above within one week after KEMWEB's request at the latest. For the performance of further acts of cooperation KEMWEB shall be entitled to set a reasonable period of time to the customer. Apart from that the customer has to respond to letters or requests of KEMWEB within 2 working days at the latest. (5) The customer shall provide the required number of his own employees for the fulfillment of his contractual obligations, who have the required expertise. (6) The customer is aware that in case of doubt the services of KEMWEB cannot be rendered as agreed due to a violation or delay of the cooperation obligations. This may in particular lead to delays in the agreed schedule or to additional expenses and costs. (7) All acts of cooperation to which the customer is obliged shall be performed by him at his own expense. (8) KEMWEB shall be entitled to terminate a contract for cause if the customer seriously or repeatedly violates his obligations to cooperate. This is especially the case if he does not make agreed payments or does not make them on time, does not provide information, materials, cooperative actions, is not available for a longer period of time or hinders the progress of the order in any other way. § 7 Dead lines Deadlines shall only be binding if they have been expressly designated as binding and promised by KEMWEB in text form. § 8 Acceptance (1) If services under a contract for work and services have been agreed upon, KEMWEB shall make the completed work products available to the customer for acceptance and shall notify the customer of their acceptability. KEMWEB shall also be entitled to submit individual services to the customer for partial acceptance. Upon receipt of the notification of acceptability a period of ten working days shall commence for the customer within which the customer shall be obliged to make a written declaration of acceptance, provided that the work products or services essentially comply with the contractual requirements. KEMWEB shall be notified immediately in writing of any existing defects. (2) If the acceptance period expires without KEMWEB receiving a declaration of acceptance or a notice of defects, the work product shall be deemed to have been accepted without defects upon expiry of the period. The work product shall also be deemed to have been accepted without defects if the customer puts it into operation, publishes it or pays the remuneration agreed for this purpose. (3) KEMWEB shall remedy defects notified by the Customer and relevant to acceptance within a reasonable period of time or remedy them in any other way. After this the acceptance has to be repeated. The declaration of acceptance may not be refused due to insignificant defects. Insignificant defects are such defects which do not or not significantly impair the usability of the work product. § (1) If contractual services have been agreed upon, KEMWEB shall notify the customer of the completion of the services as a whole or of a section thereof and of their making available . Thereupon the customer shall immediately check whether the services have been rendered essentially in accordance with the contract. If the services have essentially been provided in accordance with the contract, the customer shall immediately release the services in writing or in text form. (2) If the customer is of the opinion that the services provided are not essentially in accordance with the contract, he shall notify KEMWEB of his complaints in writing or by e-mail without undue delay, but no later than within two weeks after the services have been made available. (3) If the customer does not raise any objections within two weeks after notification of completion by KEMWEB, the release shall be deemed tacitly granted. KEMWEB shall draw the customer's attention to the significance of his conduct when notifying him of completion. (4) If the customer complains about the performance in due time, KEMWEB will immediately state its position to the customer. The parties will then try to reach an agreement on the further procedure. KEMWEB is only obliged to continue to act if an agreement is reached within a further period of two weeks. If an agreement fails, the contract shall be terminated unless the customer agrees to the continuation under reservation of the rights to which he is entitled due to the complaints. (5) The declaration of release may not be refused due to insignificant defects. Insignificant defects are defects which do not or not significantly impair the usability of the performance. § (1) KEMWEB warrants that the results of the performance essentially meet the contractual requirements and comply with the recognized rules of technology, and that they are not afflicted with defects which nullify or diminish the value or the suitability for the usual use or the use assumed according to the contract. (2) KEMWEB does not warrant that the work products created will retain their contractually agreed suitability in the event of general changes in technology (e.g. browsers, server technology, plug-ins, operating systems, online access, etc.) even under the changed circumstances. There shall be no claim to subsequent adaptation. (3) If there is a defect, KEMWEB may provide the customer with an interim solution to circumvent the defect (workaround) until the defect is finally remedied, to the extent this is possible and reasonable for the customer with regard to the effects of the defect. (4) KEMWEB warrants that the work products provided by KEMWEB within the scope of the agreement are free from third party intellectual property rights and that, to the knowledge of KEMWEB, no other rights exist which restrict or exclude their use in accordance with the agreement. KEMWEB shall indemnify the customer against all possible claims of third parties in this respect. (5) If the contractual use is impaired by industrial property rights of third parties, the customer shall notify KEMWEB thereof without undue delay after becoming aware thereof. In this case KEMWEB shall have the right, to an extent reasonable for the customer and in consultation with the customer, either to modify the contractual services in such a way that they fall outside the scope of protection but nevertheless comply with the contractual provisions, or to obtain the authority that they may be used in accordance with the contract without restrictions and without additional costs for the customer. (6) The enforcement of warranty claims shall be subject to the condition that defects have been notified to KEMWEB in writing and can be reproducibly reported in writing and traced immediately after their first detection. (7) The warranty claim shall not apply if the customer modifies work products himself or has them modified by third parties without the consent of KEMWEB, unless the customer proves that the defects still in question were not caused by the modifications made by him or the third party. (8) The warranty period shall be 1 year and shall commence upon acceptance of the work results. Longer statutory limitation periods for liability and warranty claims shall remain unaffected. § 11 Liability (1) KEMWEB shall be liable without limitation for damages incurred by the customer in connection with the provision of services, provided that such damages are due to intentional or grossly negligent conduct. (2) In addition, KEMWEB shall be liable for damages incurred by the customer in connection with the provision of services, as far as such damages have been caused by negligent violation of an essential contractual obligation. In this case KEMWEB's liability shall be limited to the damage typically foreseeable at the time of conclusion of the contract. (3) The above limitations of liability shall not apply to liability for personal injury and to liability under the Product Liability Act. (4) As far as KEMWEB creates the work results according to the customer's instructions and/or on the basis of contents provided by the customer, KEMWEB does not assume any liability that the work results are legally compliant. KEMWEB shall in no case be liable for the content provided by the customer. It is the customer's responsibility to have the services or work results to be provided by KEMWEB legally verified before their publication. (5) The customer is obliged to take effective measures to prevent and mitigate damages. KEMWEB shall not be liable for the loss of data and/or programs insofar as the damage is due to the fact that the customer has failed to carry out data backups and thus to ensure that lost data can be restored with reasonable effort. (6) The above provisions shall also apply in favor of KEMWEB's vicarious agents. § 12 Force Majeure, Delays (1) KEMWEB shall be released from its obligation to perform under this contract if and to the extent that the non-performance of services is due to the occurrence of circumstances of force majeure after the conclusion of the contract. (2) KEMWEB shall not be responsible for delays in performance due to force majeure and circumstances within the customer's sphere of responsibility (e.g. failure to provide cooperation services in due time, delays caused by third parties attributable to the customer, etc.) and shall be entitled to postpone the date of performance of the affected services by the duration of the delay plus a reasonable start-up period. (3) Circumstances of force majeure are, for example, war, strikes, lockouts, riots, expropriations, cardinal changes of law, storms, floods, pandemics, official orders and other natural disasters as well as other circumstances beyond KEMWEB's control such as, in particular, water ingress, power failures and interruptions or general disturbances of telecommunications and the destruction of data-carrying lines or infrastructure. Hacker attacks and similar events shall be deemed to be force majeure if they could not be avoided even by the use of reasonable protective measures in accordance with the recognized rules of technology. (4) Each party shall notify the other party of the occurrence of a case of force majeure immediately and in text form. § (1) KEMWEB grants the customer a non-exclusive right, unlimited in time and space, to use the work products individually produced for him in accordance with their intended purpose. If software is subject of the services, §§ 69 d and 69 e UrhG shall apply. Unless expressly agreed otherwise, the intended use shall include the mere use of the work products. No further rights shall be granted. (2) The source code and open files shall not be made available to the Customer. (3) The customer is prohibited from using the work products of KEMWEB or parts thereof as a basis for the development and distribution of similar applications, products or websites. (4) If, in deviation from this, a transfer of exclusive rights of use has been agreed individually, the exclusivity shall not include the tools developed and used for the implementation of KEMWEB as well as the underlying data processing programs/functions and other tools in general use. (5) Transfer of rights to third parties and sublicensing are prohibited. (6) The work results may contain components that have been licensed by third parties as open source software. In case of doubt, the respective license terms shall apply exclusively to open source software. In this respect, these Terms and Conditions shall not apply to open source software. (7) Until the complete payment of the remuneration the customer is only permitted to use the created work results revocably. KEMWEB may prohibit the use of such work for which the customer is in default of payment for the duration of the default. § 14 Indemnification (1) The parties shall immediately inform each other in text form about any legal disputes with third parties due to measures in connection with the cooperation of the contracting parties and about any progress of the proceedings and shall agree with each other how to proceed further. (2) The Customer shall indemnify KEMWEB upon first request against all claims of third parties arising therefrom in the event of claims being asserted on account of alleged or actual infringements of rights and/or infringements of rights of third parties in connection with the cooperation of the contracting parties and undertakes to reimburse all costs, if any, incurred by the Provider as a result of claims asserted by third parties. Reimbursable costs shall include, in particular, the costs of reasonable legal prosecution and legal defense that the Provider should incur. § 15 Non-solicitation The Customer undertakes not to solicit any employees of KEMWEB or to hire such employees without the consent of KEMWEB for the duration of the cooperation between the parties and for a period of one year thereafter. For each case of culpable violation the customer undertakes to pay a contractual penalty to be determined by KEMWEB and in case of dispute to be reviewed by the competent court. § 16 Mention of references The customer agrees to be mentioned as reference on the websites, in presentations and other media of KEMWEB. Furthermore, KEMWEB may publicly reproduce or refer to the services rendered for demonstration purposes. For the purpose of this reference the customer shall grant KEMWEB a right of use of his trademarks and company logos unlimited in time and space. § 17 Secrecy (1) The documents, knowledge and experience provided to the other party may be used exclusively for the purposes of the respective 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. In addition, the parties agree to maintain confidentiality about the content of the respective contract and about the knowledge gained during its execution. The confidentiality obligation shall also apply beyond the termination of the contractual relationship. (2) If one 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 party to the contract can claim a legitimate interest in such documents. (3) Press releases, information, etc. in which one contracting party refers to the other shall only be permitted after prior written agreement - also by e-mail. § (1) The assignment of claims shall only be permitted with the prior written consent of the other contracting party. Such consent may not be unreasonably withheld. The provision of § 354 a of the German Commercial Code (HGB) shall remain unaffected. (2) The Customer may only assert a right of retention on the basis of counterclaims arising from the respective contractual relationship. (3) The contracting parties may only offset claims that have been legally established or are undisputed. § 19 Applicable Law, Place of Jurisdiction These Terms and Conditions shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all disputes arising from this contract shall be the registered office of KEMWEB. However, KEMWEB shall in all cases also be entitled to bring an action at the customer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected. § 20 Miscellaneous (1) To the extent required in the context of the cooperation pursuant to the EU General Data Protection Regulation, the parties shall additionally conclude a contract on commissioned processing. In that case KEMWEB shall be obliged to comply with the technical and organizational measures provided for therein when providing the services. (2) Verbal collateral agreements have not been made. Amendments, supplements and additions to this contract shall only be valid if agreed between the contracting parties in text form. This shall also apply to any amendment to this provision of the contract. (3) Should any provision of this contract be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties shall be obliged to replace the invalid provision by a valid provision which comes as close as possible to the economic purpose of the invalid provision. The same shall apply in the event of a gap in the contract.
B. SPECIAL PROVISIONS FOR AGILE SOFTWARE DEVELOPMENT
§ ( 1 ) The following terms and conditions of this section shall apply to all services provided by KEMWEB in the IT field, in particular to development and programming services (hereinafter referred to as "services"). Unless expressly agreed otherwise, services shall be rendered by KEMWEB on a service-contract basis according to time and material. (2) KEMWEB shall use the agile development method "SCRUM" for the provision of services, in which a development is conceived, developed and coordinated in successive, short iterations ("sprints") according to the Customer's ideas. The rough ideas initially expressed by the customer with regard to service content (so-called "user stories") merely define a non-binding project framework. The concrete service content will be continuously adjusted by the Customer's product owner during development. (3) In principle, KEMWEB shall be free to choose the working tools and technologies used and may also use open source software and software of third parties, provided that the Customer can use them as agreed. With regard to the use of open source A § 13 paragraph 6 of these terms and conditions shall apply. (4) KEMWEB may use the assistance of freelancers and subcontractors to render the services owed. § 2 Persons authorized to represent the Customer In addition to the provision in A § 4 of these Terms and Conditions, the Customer shall appoint a Product Owner who shall make the binding decisions on project control and project management for the Customer at the operational level. The customer is responsible for the project control and project management in the person of his product owner and gives KEMWEB the instructions for the implementation of the requirements. The customer authorizes the product owner in particular to make decisions regarding changes or extensions with regard to the subject of performance and the related commissioning of additional work. § (1) The Customer's Product Owner shall constantly concretize the service contents during the development and continuously document them including changes in the Product Backlog. Changes that have been implemented but not documented shall nevertheless be deemed to have been bindingly commissioned by the Customer if they are not objected to by the Customer in text form at the latest in the sprint review following the respective development. Accordingly, the Customer shall be obligated to pay for all expenses incurred in a Sprint if the Customer has not objected to them in the respective subsequent Sprint Review. (2) If the parties have agreed on a fixed price, all change requests shall be submitted by the Customer to KEMWEB in text form prior to their implementation. The further procedure shall be governed by A § 3 of these Terms and Conditions. (3) Changes which have been implemented in a fixed-price project but whose release has not been documented shall nevertheless be deemed to have been bindingly commissioned by the Customer if they are not objected to in text form by the Product Owner at the latest in the sprint review following the respective development. The Customer shall be obligated to remunerate all expenses incurred in a Sprint if these were not objected to in the respective subsequent Sprint Review. § 4 Remuneration (1) Quotations by KEMWEB are subject to change as pure cost estimates and are non-binding unless a fixed price agreement has been expressly made in text form as a "fixed price". (2) Invoicing shall be carried out on a monthly basis according to the work actually performed or, in the case of a fixed price agreement, according to the scale agreed in the offer. (3) Should it become apparent during the project that the effort calculated for the fixed price is not sufficient for the implementation of the initially agreed scope of services, the contracting parties shall share the calculation risk. All expenses incurred in excess of the agreed fixed price shall be charged to the customer at 50% of the rates specified in A § 5 para. 1 of these Terms and Conditions. Excluded from this are additional expenses according to B § 3 paragraph 2, which do not fall within the agreed scope of services. § 5 Termination The customer may terminate the contract at any time until completion of the commissioned work. If the customer terminates the contract, KEMWEB shall be entitled to invoice the expenses incurred until the date of termination; for additional expenses incurred by KEMWEB due to the termination without notice the customer shall furthermore pay to KEMWEB a lump sum amounting to 5% of the remaining commissioned budget (gross), unless KEMWEB can prove a higher claim for remuneration according to § 648 BGB. § 6 Acceptance If, in deviation from B § 1 paragraph 2, services based on a contract for work and services have been agreed upon, KEMWEB shall make the completed work products available to the customer for acceptance in accordance with A § 9. In this case each individual sprint shall be subject to partial acceptance.
C. SPECIAL PROVISIONS FOR THE CREATION OF CONTENT AND DESIGN
§ ( 1 ) The following terms and conditions of this section shall apply to all services of KEMWEB with regard to the creation of content, text and editorial preparation ("Content") as well as the creation of graphics of any kind ("Design"). (2) The setting and publication of Content and Design shall not be part of KEMWEB's service obligations without explicit agreement. § ( 2) Conceptual design In order to provide the service KEMWEB shall first prepare a draft for the content ("draft") or a concept for the design ("concept"), which Customer shall accept by declaration in text form. KEMWEB shall then implement the service on the basis of and within the scope of the draft or the concept. § (1) When providing the service KEMWEB shall take into account which target groups are to be addressed by the contents and which purposes the customer pursues with the contents. KEMWEB shall advise the customer on the advantages and disadvantages of individual content, design and functional features as well as on general knowledge KEMWEB has gained of the habits and needs of Internet users - for example with regard to loading times and the weighting of texts and graphic elements. (2) Industry-specific knowledge is not expected from KEMWEB. In particular, KEMWEB shall not be obliged to gain specific knowledge about the habits and user behavior of persons belonging to the target groups by means of surveys, investigations or other means of market research. § 4 Content and design services (1) KEMWEB shall prepare the number of alternative proposals for the content or graphic design specified in the offer. (2) As far as requested by the customer KEMWEB shall take into account specifications resulting from the customer's corporate design as well as current knowledge about habits, trends and developments in the field of web design and general commercial graphics. (3) KEMWEB will coordinate with the customer the screen resolution as well as the internet browsers or apps to which the design is to be optimized. § (1) The Customer shall provide KEMWEB with the content to be included or adapted in the content or design, as far as these are not subject of the service provision. (2) The Customer shall ensure that content provided by him complies with the technical requirements, is of sufficient quality and resolution and does not infringe any intellectual property rights of third parties. (3) The Customer shall be obligated to reasonably cooperate in the development and production of the content. Insofar as test runs or acceptance tests, presentations or other meetings become necessary or expedient, the Customer shall assign knowledgeable employees to participate in the meetings who are authorized to make all necessary or expedient decisions. The provision on project management in A § 4 of these Terms and Conditions shall remain unaffected. (4) If KEMWEB provides the customer with proposals, drafts, test versions or similar, the customer shall carry out a quick and careful examination within the bounds of what is reasonable. The customer shall notify KEMWEB of any complaints and requests for changes without delay in each case.
D. SPECIAL PROVISIONS FOR THE SUPPORT OF SOCIAL MEDIA CHANNELS
§ 1 Subject matter of performance The following terms and conditions of this section shall apply to all services provided by KEMWEB with regard to the support of Customer's social media channels. Depending on the offer, the service of KEMWEB consists in the conception, creation (see Part C. of these Terms and Conditions) and publication of content ("Content"), the development of a social media strategy ("Strategy"), the conception and implementation of social media advertising ("Advertising") or social media analysis ("Analysis"). KEMWEB shall provide the services on the basis of a service contract. § (1) To the extent required, Customer shall provide KEMWEB with the access data to the social media channels which are the subject matter of the contract or shall ensure that KEMWEB or a correspondingly designated employee is provided with administration rights. (2) If KEMWEB is obliged to publish content, the customer shall license the necessary rights of use to photographs, graphics, videos or texts of third parties which are required for the publication of contributions himself. The customer shall inform KEMWEB comprehensively about any license conditions to be observed. This applies in particular to copyright references to be included in contributions. § 3 Confidentiality and business secrets KEMWEB shall always maintain the necessary discretion when communicating in Customer's social media channels. Business secrets and other confidential internals, insofar as they become known to KEMWEB as such, will not be published or discussed by KEMWEB. § 4 Reporting (1) KEMWEB shall support the customer in developing reports for the implementation of controlling measures by the customer on the basis of the customer's specifications and objectives. (2) If agreed, KEMWEB shall prepare reports based on its own analyses and provide them to the customer at the interval specified in the offer. The reports will be used as a basis for further consulting services.
E. SPECIAL PROVISIONS FOR WEB HOSTING
§ ( 1 ) Within the scope of its web hosting services KEMWEB offers services for making contents accessible via the Internet but also for procuring and/or managing domains. (2) The respective offer of KEMWEB shall be decisive for the services specifically ordered by Customer. (3) If Customer has ordered web hosting, KEMWEB shall provide servers on which the contents shall be kept available for retrieval via the Internet at the Internet address to be provided by Customer. The services of KEMWEB for the transmission of data are limited to the data communication between the transfer point of the own data communication network operated by KEMWEB to the Internet and the server provided for the customer. It is not possible for KEMWEB to influence data traffic outside its own communication network. A successful forwarding of information from or to the computer requesting the contents is therefore not owed. (4) If Customer commissions KEMWEB with the procurement and/or administration of internet domain(s), KEMWEB shall only act as an intermediary in the relationship between Customer and the respective domain administrators and/or a domain name registrar. Unless stated in the offer, KEMWEB is not responsible for providing access to the Internet (access providing). (5) KEMWEB provides the service with an overall availability of at least 98.5% on an annual average. The availability is calculated on the basis of the time allotted to the respective calendar year in the contractual period minus the maintenance periods defined below. KEMWEB is entitled, after prior notice, to carry out maintenance work between 6:00-10:00 a.m. for a total of 10 hours per calendar month. During the maintenance work the aforementioned services may not be available or only to a limited extent. (6) The scope of the data backup shall be described individually in the respective underlying offer. The backup is always carried out for the entire server content and may also include the data of other customers. The customer shall not be entitled to the return of any of the backup media, but only to the retransfer of the backed-up content to the server. (7) KEMWEB shall be entitled to adapt the hardware and software used to provide the services to the respective state of the art. If such an adaptation results in additional requirements for the contents stored by the Customer on the server in order to ensure the provision of the services by KEMWEB, KEMWEB shall notify the Customer of such additional requirements. Customer shall decide immediately upon receipt of the notification whether the additional requirements shall be met and by when this shall be done. If the customer does not declare at the latest four weeks before the changeover date that he will adapt his contents to the additional requirements in time for the changeover, i.e. at the latest three working days before the changeover date, KEMWEB shall have the right to terminate the contractual relationship with effect from the changeover date. (8) As far as the Customer is provided with fixed IP addresses within the scope of the contractual service provision, KEMWEB shall be entitled to change the IP address assigned to the Customer at any time, if this is necessary for technical or legal reasons. § 2 Terms, Termination (1) The minimum term of a contract for web hosting is 6 months or one year and results from the offer. The contract shall be extended for an indefinite period of time if it is not terminated in writing with 30 days' notice to the end of the month. The termination for good cause remains unaffected. (2) After termination of the contractual relationship KEMWEB shall make available to the customer, if desired, the contents stored on the storage space designated for the customer for retrieval by remote data transmission. The compilation of the archive is offered separately and is not part of the paid hosting fees. Any rights of retention of KEMWEB shall remain unaffected. § 3 Payment (1) In case of payment by direct debit the customer grants KEMWEB a direct debit authorization upon conclusion of the contract. (2) Unless otherwise agreed, the customer's payment shall be due in advance, depending on the term of the contract, semi-annually or annually before the beginning of the respective term of the contract. (3) The customer shall raise objections against the invoice for the services provided by KEMWEB in writing within eight weeks after receipt of the invoice. After expiry of this period the invoice shall be deemed to have been approved by the customer. (4) KEMWEB shall be entitled to increase the agreed remuneration after expiry of the first contract year at most once a year to adjust increased procurement costs, inflation, changes in value added tax etc.. In case of price increases of more than 10% the customer shall be entitled to an extraordinary right of termination, of which the customer will be informed by KEMWEB in text form together with the price increase. (5) The provision of services by KEMWEB is subject to the customer's timely fulfillment of his payment obligations. If the customer is in default with the payment of a considerable part of the owed remuneration for two consecutive months, KEMWEB is entitled to block the access to the agreed services after prior notice by e-mail. The right to terminate the contractual relationship in this case for good cause and without notice shall remain unaffected. § 4 Obligations of the Customer (1) The Customer undertakes not to store any illegal content or content that violates the law, official requirements or the rights of third parties on the storage space provided. He is also responsible for the 11 contents himself, for example for the fulfillment of the provider identification, information obligations regarding data protection, distance selling or electronic business transactions. (2) The customer shall ensure that the Internet address chosen by him, under which the contents can be retrieved via the Internet, also does not violate laws, official requirements or rights of third parties. In this respect KEMWEB is not obliged to check or advise the customer. (3) KEMWEB is entitled to temporarily interrupt the connection of the customer's website to the internet (blocking of the website), if there is sufficient suspicion of a violation in the sense of F § 4 paragraph 1 and paragraph 2 of these terms and conditions, due to a warning of the alleged violator or investigations of state authorities, unless the warning is obviously unfounded. The blocking shall be limited to the allegedly infringing content, if technically possible and reasonable. The customer shall be notified immediately of the blocking, stating the reasons, and shall be requested to remove the allegedly illegal content or to demonstrate and, if necessary, prove its legality. The blocking shall be lifted as soon as the suspicion is invalidated or the Provider had the opportunity to terminate the contract extraordinarily due to the Customer's behavior. (4) If programs, scripts or similar installed by the customer endanger or impair the operation of the server or the communication network of KEMWEB or the security and integrity of other data stored on the servers of KEMWEB, KEMWEB may deactivate or uninstall these programs, scripts etc.. If the elimination of the threat or impairment so requires, KEMWEB shall also be entitled to disconnect the connection of the content stored on the server to the Internet. KEMWEB shall inform the customer about this measure without delay. (5) For access to the storage space intended for the Customer the Customer shall receive a user ID and a changeable password. The Customer shall be obliged to change the password at regular intervals, but at least once a year. The password must have a minimum length of 8 characters and contain at least one letter, one digit and a special character. The customer may only pass on the password to those persons who have been authorized by him to access the storage space. If the password is entered incorrectly three times in a row, access will be blocked to protect against misuse. The customer will be informed about this. He will then receive a new password from KEMWEB. In this case KEMWEB shall be entitled to reassign not only the password but also the user ID. (6) The customer shall not be allowed to transfer services provided by KEMWEB to third parties for commercial use. § 5 Granting of rights (1) As far as the contents of the website are protected for the customer according to copyright law (as a work, collective work, database work, computer program, photograph, database, via related ancillary copyrights or as derived rights from the aforementioned rights), art copyright law, trademark law or via other protective rights ("protected contents"), the customer grants the rights regulated below. (2) The customer grants KEMWEB the non-transferable, non-exclusive right, limited in time to the duration of the contract, restricted to the location of the respective server (for backup copies: to the location of their safekeeping), to reproduce the protected contents for the purposes of this contract on the server, on another server used for mirroring and on a sufficient number of backup copies. (3) The customer grants KEMWEB the non-transferable, worldwide, non-exclusive right, limited in time to the duration of the contract, to make the protected content on the server and the Internet connected to it available to the public in such a way that members of the public can access the website from a place and at a time individually chosen by them and can save this data by downloading it from the provider's server. As far as protected contents of third parties are kept in cache memories after termination of the contract, this storage shall no longer be attributed to KEMWEB. § 6 Cooperation in Domain Procurement (1) The customer is obliged to cooperate in ordering, transferring and deleting internet domains, in changing entries in the databases of the domain administration center and/or the domain name registrar as well as in changing KEMWEB and the domain name registrar. The customer undertakes to comply with the relevant registration conditions and guidelines of the domain name administrator. 12 (2) Customer shall in particular provide KEMWEB with the data required for a domain registration completely and truthfully and keep them up to date. This concerns the person of the domain owner ("registrant") as well as the technical and administrative contact. Name, postal address as well as e-mail address and telephone number are to be indicated. KEMWEB shall be informed about any changes of these data immediately in writing or by e-mail. The customer grants KEMWEB the power of attorney to register the respective domain in his name. § 7 Liability for defects and other defaults of performance (1) When providing the storage space on the server the provider excludes any strict liability for initial defects of the server. Subsequent objections due to obvious or hidden defects are thus excluded. (2) Liability due to interruption, malfunction or other events causing damage, which are based on telecommunication services of the Provider or third parties for which the Provider is liable, is limited to the amount of recourse possible for the Provider against the respective telecommunication service provider. The Provider shall not be liable for the functionality of the telephone lines to the server, in the event of power failures and in the event of failures of servers that are not within the Provider's sphere of influence. (3) The customer's right of self-remedy (§ 536a para. 2 BGB) is excluded.
§ 1 Subject matter (1) The following terms and conditions of this section G shall apply to all services provided by KEMWEB in connection with the provision of support services for software. (2) Hardware and software required within the scope of the support contract is not subject of this contract. § 2 Provision of services (1) KEMWEB will usually provide the support services at the customer's location, but may also provide them at the customer's own premises if KEMWEB considers this necessary and useful. (2) The concrete services shall be specified in the offer. In addition, KEMWEB shall provide a helpdesk in accordance with G § 3 of these Terms and Conditions for support during ongoing operations. (3) KEMWEB shall provide the maintenance services in accordance with the latest state of the art and shall provide suitable personnel for the performance of the work. (4) Depending on the concretely agreed support work, maintenance by way of remote maintenance may be agreed upon at the Customer's request. § 3 Helpdesk (1) Within the service hours (Monday - Friday from 08:00 a.m. - 6:00 p.m.) KEMWEB shall provide the Customer with a hotline for the receipt of fault reports and the elimination of simple malfunctions and support in case of questions regarding the ongoing operation of the hardware and software. (2) The helpdesk can be reached under the telephone number +49 6131 9300042. § 4 Obligations of the Customer (1) The Customer shall grant KEMWEB unhindered access to the support objects for the purpose of providing the support services. To the extent necessary for the performance of the service the customer shall in particular ensure access to the site for the persons employed by KEMWEB and shall encourage his employees to cooperate with KEMWEB. (2) If the parties have agreed on the provision of the services by way of remote maintenance, the Customer shall create the necessary technical prerequisites for this at his own expense. (3) The Customer shall observe the instructions for the operation of the hardware and the software contained in the user documentation. (4) The customer shall be obliged to back up its data properly and regularly before installing the software and before commissioning the IT system, as well as in the period thereafter during the operation of the IT system. (5) The customer shall inform KEMWEB immediately in case of malfunctions. The customer shall be obliged to describe the occurred malfunctions as precisely as possible by stating the information known to him and useful for the elimination of the malfunction. If the customer fails to provide information reasonably requested by KEMWEB, KEMWEB shall not be responsible for any resulting disruption of service. Furthermore, KEMWEB shall be entitled to additionally charge for the resulting expenses according to section A. § 3 of these terms and conditions. (6) If necessary, the customer shall provide an opportunity for protected storage of materials in the vicinity of KEMWEB's work free of charge. § 5 Term of the contract, remuneration (1) The term of a contract for support services is 6 months or one year and results from the offer. The contract shall be extended by the same contract period of 6 months or one year, if it is not terminated in writing with a notice period of two weeks to the end of the respective contract period. Termination for good cause shall remain unaffected. (2) If payment by direct debit has been agreed upon, the customer shall grant KEMWEB a direct debit authorization upon conclusion of the contract. (3) Unless otherwise agreed, the customer's payment is due in advance, depending on the term of the contract, semi-annually or annually before the start of the new contract term.
G. SPECIAL PROVISIONS FOR FILM, MEDIA AND LIVE PRODUCTIONS
§ ( 1 ) The following conditions of this section shall apply to all services of KEMWEB in the field of film, media and live production. Unless expressly agreed otherwise, services shall be rendered by KEMWEB on a service-contract basis according to time and material. (2) Insofar as relevant for the contractual provision of services, the results of the services shall be oriented in such a way that they are correctly displayed and function with a video player that is current at the time of creation in the usual resolution and format (HD, 16:9) using common operating systems. This also applies to the playback of produced media content, such as movies or 360° videos. If the correct display / functionality is also to be guaranteed in browsers / special video players / under other operating systems / for cinema or TV broadcasting / under certain non-standard configurations / conditions or specifications requested by the customer, this shall be agreed separately. § 2 Change requests, additional work For productions, the offer includes a correction loop in post-production. Author's corrections and changes that deviate from the storyboard or the agreed services or that have been previously approved are excluded. § 3 Additional work A separate regulation applies to the hourly or overtime calculation of a production day:
(1) A production day includes a maximum of 10 hours, calculated from departure to return to KEMWEB in Mainz. (2) The 11th and 12th working hour will be charged at 100% plus 25% surcharge. (3) From the 13th working hour onwards, 100% plus 50% overtime surcharge shall apply. § 4 Cancellation conditions (1) A fixed production date for a commissioned film, media or live production can be cancelled by the customer before shooting begins. The customer must inform us of this in writing or by e-mail. Before the start of production, the customer shall then pay 5% of the gross total amount of the order value.
(2) In the case of a cancellation received at short notice
- a. up to 25 hours before the start of production, the customer shall pay 30%
- b. up to 12 hours before the start of production the customer pays 50%
- c. from 11 hours before the start of production the customer pays 70% of the gross total amount of the order value.
(3) Excluded from this are always all work in the run-up to the production date (e.g. planning, conceptual work, tests, etc.). These will be charged at 100%.
(4) A postponement of the production must also be made in writing or by e-mail and is only possible with the consent of KEMWEB. § 5 Rights of use The general regulation in A § 14 paragraph 1 of these terms and conditions applies in relation to film productions only to the scenes used in the film. Unless otherwise stated in the service description of the offer, rights to the raw material are excluded from this.