mvh networks / digital communication agency

Design & Development

“Good Design is for Eternity”

Alberto Alessi, Designer

General terms and conditions

General terms and conditions of mvh networks Melissopoulos – Vitsas GbR

Version: April 2014 | © mvh networks Melissopoulos – Vitsas GbR

§ 1 Scope

1.
The following conditions apply to the contractual relationship between MVH Networks Melissopoulos – Vitsas GbR (hereinafter referred to as “mvh networks”) and the contractual partner/ principal.
2.
mvh networks’ terms and conditions apply exclusively. We do not accept any conditions set out by the customer that conflict with or deviate from our terms and conditions unless we have explicitly agreed in writing that they will apply. Our terms and conditions will also apply if we are aware of the customer’s conditions which conflict with or deviate from our general terms and conditions and fulfil delivery without any reservation. These terms and conditions also apply to all future business relations, even if they are not explicitly agreed to once more at a later date. We hereby explicitly object to deviating conditions of purchase or any other conditions set out by the contractual partner.
3.
In the event of continuing obligations, we are entitled to amend or modify these terms and conditions at any time. The customer will be informed of the amended terms and conditions, with the amendments highlighted, with a notice period of at least three (3) weeks prior to the effective date. If the customer does not object to the amended conditions within two (2) weeks of receipt of the amended terms and conditions at the latest, these conditions will become part of the contract. If the customer objects to the amended terms and conditions, we will be entitled to terminate the contract without notice on the date on which the new terms and conditions come into force if we deem it unreasonable to continue with the old terms and conditions.
4.
Subsidiary agreements, assurances and other agreements as well as modifications and amendments to these terms and conditions will only take effect upon written confirmation from mvh networks.

§ 2 Copyright and rights of use

1.
Every order issued by mvh networks is a contract to produce a copyrighted work which grants the right of use for the work which has been commissioned.
2.
All copyrights, related rights, rights to photographs, trademark rights, registered design rights or utility patent rights as well as ancillary copyrights under competition law arising within the framework of the order placed with mvh networks will remain the property of mvh networks. As a basic principle, the usage rights granted to the principal as a result of this shall be in the form of a non-exclusive licence. The usage rights are only transferred to the principal if it is required for the purpose of the contract. The granting of any further usage rights must be agreed in writing. The same applies to transferring usage rights to third parties. The usage rights will only be transferred upon full payment of the fee.
3.
All designs and final artwork are subject to the German Copyright Act (Urheberrechtsgesetz, UrhG). The provisions of the German Copyright Act will apply even if the required threshold of originality pursuant to Section 2 of the UrhG is not attained.
4.
The designs and final artwork must not be altered, neither in the original nor in any reproduction, without the explicit approval of mvh networks. Any imitation, including of parts of the work, is forbidden.
5.
An infringement of this provision will entitle mvh networks to impose a contractual penalty of €25,000.00. mvh networks reserves the right to prove that higher damages have been incurred in individual cases.
6.
mvh networks has the right to be credited as the creator on copies of the work. Any infringement of the right to be credited will entitle mvh networks to compensation. In the absence of evidence substantiating a higher claim, compensation will amount to 50% of the agreed fee or the standard fee as per the Collective Agreement on Fees for Design Services set out by Allianz deutscher Designer (AGD) and Selbstständige Design-Studios (SDSt). The right to claim higher amounts of compensation upon production of evidence shall remain unaffected.
7.
The principal’s proposals or his other efforts to collaborate shall have no impact on the fee amount. Proposals do not form the basis for any joint copyright. The principal asserts that any photographs, graphics or other materials that he supplies are free of the rights of third parties and/or that he holds the appropriate usage rights. In this respect, the principal shall exempt mvh networks from any third-party claims and shall thus bear the costs associated with any infringements.
8.
If new copyrights relating to the final product or intermediate products arise through the execution of the order, the customer – unless otherwise agreed in writing – shall only receive the non-exclusive user licence for the final product. We shall retain the rights to intermediate products. Ancillary copyrights will not be automatically transferred.
9.
Any use beyond that stated in the contractual agreement, in particular the transfer of any usage rights to third parties, is forbidden unless we have agreed to the use / transfer in writing.
10.
The customer will acquire the exploitation rights under copyright law only once mvh networks has transferred the website to the customer on a data storage device or uploaded it to the server provided and the customer has made payment in full to mvh networks (Section 158 Paragraph 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB)). Until the fee owed by the customer is paid, all exploitation rights under copyright law shall remain the property of mvh networks.
11.
mvh networks has the right to be credited as the creator on copies of the work and in the legal notice with the formulation “(Web) design & development by mvh networks”. On websites, the mvh networks logo and a backlink to www.mvhnetworks.com must also be added to the legal notice. The same applies to all documents (designs, final artwork, etc.) which are transferred upon conclusion of the contract within the framework of initiating the contract. Editing originals and reproductions requires the approval of mvh networks at all times. No documents may be made accessible to third parties. mvh networks has the right to feature its created projects within its own references / portfolio.

§ 3 Quotation and conclusion of contract

1.
Our offers are open and do not constitute a binding offer.
2.
The customer’s notice of acceptance constitutes a binding offer which will be accepted in a written order confirmation.
3.
We shall confirm in writing other agreements and subsidiary agreements as well as assurances or subsidiary agreements made by our colleagues which are not cited in our offer.

§ 4 Contents of the contract/scope of services

1.
mvh networks deems that the scope of the work to be performed by mvh networks will be defined in the written order confirmation or the scope of services stated in our offer. If no order confirmation or written offer is received, the general statutory regulations governing the conclusion of contracts will apply.
2.
If the service includes the use of third-party software (e.g. CMS, CRM systems), the scope of services will be limited to procuring a licence and, if agreed, installing and setting up the software.
3.
If the third-party software is free open-source software, the licence procurement will be free for the customer.
4.
If we agree to list a website on online search engines, we shall be solely responsible for the use of automated programmes which list the website to the best of their abilities. We cannot guarantee actual inclusion in an online search engine nor any desired ranking in the results of the search requests.
5.
If they are not cited in the order confirmation, additional services, in particular for telephone support, maintenance works, prototypes, designs, final proofs, plans, print-outs, modifications to delivered / transferred data, the creation of backup copies and similar preparatory work as well as the costs of data transfer, storage and archiving, are not included in the scope of services.
6.
The prices stated in the order confirmation apply to the scope of services stated in this Section. If the scope of services is subsequently amended at the behest of the customer or if additional services arise at the behest of the customer or are mandatory for the performance of the contract in accordance with this Section, the extra costs incurred as a result of this will be charged to the customer separately.
7.
mvh networks reserves the right to amend the object of the contract, in particular regarding the way in which services relating to graphics and text are rendered, e.g. for technical reasons, provided that the object of the contract is not substantially modified and the customer deems the modifications reasonable.
8.
Unless otherwise agreed, the basis for calculating additional services will be our hourly rate of €79.00 plus VAT, otherwise the standard fee agreed applies.
9.
Regardless of the chosen payment type, fee-based additional services include all expenses incurred by mvh networks because the customer has made modifications relating to the services which have already been approved and/or accepted following approval of the concept, approval of the basic version or partial acceptance at the customer’s request. In any case, this kind of extra expenditure will be charged at the hourly rate stated in Section 4 Item 8.

§ 5 Project summary and project phases

The agent will process the project in the following five project phases. Splitting the project into phases and tasks itemised within these phases offers the principal and the agent security of contract and investment from the outset. A decision and approval for the next stage will be required at the end of every project stage.  The first two phases of the project can be delivered separately. From the third phase, the project usually runs through each stage right through to publishing, whereby the scope of the requested services, e.g. for production and training, can only be accurately calculated in consultation with the principal upon completion of the first phase (specifications and planning).

Phase 1 Specification and planning

The consultation at the beginning of the project will form the basis for developing the project. This first stage of work is used to define and set precise project objectives and target groups as well as the content and intention of the website. To this end, the objectives, benefits and presumed scope of the website are usually developed in an initial workshop with the principal.
Services in phase 1:

1.1.
A consultation to analyse the company and products, market situation, define the project objectives, target groups and purpose of the website.
1.2.
Specifications for the website, developing the content and objectives of the website, planning the website’s short-, medium- and long-term prospects, defining the website’s content and function, planning integration into the marketing concept.
1.3.
An evaluation of existing documents, analysis of the principal’s corporate identity and corporate design as a guideline for the website’s appearance; stipulation of the guidelines for the website’s design (CI, CD, corporate colours, etc.).
1.4.
Analysis of the market and competitors, an evaluation of the websites of (direct) competitors and their appearance, particularly with regard to the target group.
1.5.
Definition of the technical framework conditions for implementing the website and assigning tasks (who does / delivers what, how are the pages published, etc.); allocation of project managers and setting of deadlines.
1.6.
Compilation of the minutes for the Internet workshop and detailed proposals on the specifics of implementing the website, including the schedule, scope, task assignment and the statement of costs.

Phase 2 Concept development and prototyping

The agent will use the specification to develop structural models and design options for the website’s appearance, so-called “prototypes”. This includes example pages, end-to-end navigation and user guidance as well as a functional model to demonstrate how the website is used. The prototypes will feature possible appearance options, in other words the look and feel of the website.
Services in phase 2:

2.1.
Design and construction of a structural model, definition of the construction, scope and outline of the website including any planned expansions, preparation of a functional model.
2.2.
Development of the design options (look and feel) and creation of website prototypes to evaluate the visual appearance (static models and/or print-outs)
2.3.
A search for and sourcing of the necessary image material
2.4.
Development of the graphics for the page layout and navigation
2.5.
Presentation of and final specifications for the website for its production

The customer shall provide the web designer with the content and information to be supplied as per the above paragraphs immediately after the end of the concept phase at the latest. Once the web designer has created a concept that fulfils the contractual requirements, the customer will approve this draft in a written statement. Extra expenditure resulting from the customer not fulfilling his obligations as per Section 4 of these terms and conditions will incur a fee at the hourly rate cited in Section 4 Item 8. The web designer is not responsible for the content supplied by the customer. In particular, the web designer is not obliged to check the content for any possible statutory violations.

Phase 3 Production and testing

The creation of the website will begin based on the website’s concept and final specifications. In so doing, a fully functional website will be created, locally at first, and all necessary elements (graphics, scripts, any databases) produced and implemented. The final test in real conditions will ensure full functionality.
Services in phase 3:

3.1.
Production of the fully functional website with all pages, graphics and scripts
3.2.
Integration of the programming-related components (scripts, databases)
3.3.
Full test of all pages on various devices (differing operating systems and browsers) and under network load (the provider’s/server’s protected areas)
3.4.
Correction rounds for texts, graphics and scripts

Once the web designer completes the website project and it complies with the contractual obligations, the customer is obliged to approve the result in a written statement.

Phase 4 Publication and documentation

The website will be published once creation is complete and upon approval from the principal, in other words once it has been made publicly accessible and listed in the relevant search engines. Additional marketing measures will be proposed if required. If previously agreed in writing, the entire project will be documented in full so that the website can be further developed independently by individuals.
Services in phase 4:

4.1.
If required, organisation of the technical procedure for publishing the website (requesting the domain name, searching for and communicating offers, setting up the domain / email addresses in consultation with the service provider), consultation with the in-house IT department on the implementation parameters, if applicable.
4.2.
Publication of the website on a publicly accessible server (Internet provider or own server), including a performance test for the pages and scripts / databases
4.3.
Listing the website on the relevant search engines
4.4.
Handover of the data material in print format and on CD-ROM (formats upon consultation) to maintain and expand the website.

Phase 5 Maintenance, expansion, training

Once websites are published on a server, they are not complete. They must be continuously updated and expanded. This can be done internally by your own staff or externally by service providers. Training days on editors, authoring systems and graphics programmes are charged at a daily rate; website maintenance and updates are charged based on time or a monthly flat-rate fee. Services available as and when required and upon consultation (optional if agreed in writing).
Services in phase 5:

5.1.
Possible further development of the website due to new technical standards and/or new browsers, expansion of functionality, etc. The customer is obliged to accept the website provided that the project complies with the contractual requirements or all services requested by the customer have been rendered by the web designer.
5.2.
Maintenance and regular updates and/or expansion of the website
5.3.
Training for the company’s staff on how to work with the editors, authoring systems, graphics programmes and other tools (FTP tools for data transfer)

§ 6 Delivery and completion dates/period of service performance

1.
The delivery and completion deadlines and times of performance stated in the order confirmation must correspond with the respective planning status and require all technical issues to be clarified. In particular in the event of modifications, additional work and other deviations from the order confirmation at the behest of the customer, the delivery/confirmation deadline may be delayed accordingly and/or the time of performance extended.
2.
Fixed deadlines pursuant to Section 376 of the German Commercial Code (Handelsgesetzbuch, HGB) are only put in place if this is explicitly agreed as such.
3.
Committing to the delivery, completion and performance obligations on our part requires the timely and proper fulfilment of obligations on the part of the customer. We reserve the right to object if the contract is not fulfilled.
4.
In the event of delays in delivery, completion and performance on our part or on the part of one of our subsuppliers/subcontractors which occur due to force majeure or circumstances which are the equivalent of force majeure (e.g. currency and trade measures or other acts of sovereignty, strikes, lockouts, operational disruptions such as fire, mechanical faults, breakage or a shortage of raw materials or energy), we will be entitled to postpone delivery, completion and/or performance by the duration of the disruption plus an appropriate start-up period. If the performance of the contract becomes unreasonable for a party as a result of this, this party may withdraw from the contract.
5.
If we fall behind with the performance or completion, we must initially be granted an appropriate grace period. If, upon expiry of the grace period, no satisfactory result has been achieved, the customer may withdraw from the contract.
6.
If the customer is legally entitled to claim default damages, compensation for delayed completion will be limited to a maximum of 5% of the order value of the deliveries and services affected by the default. No further claims will be permitted unless the default is the result of at least gross negligence on our part or due to the breach of a substantive contractual obligation. In the event of the latter, the liability to pay damages shall nevertheless be limited to the amount of typically foreseeable damages.
7.
We are entitled to perform partial deliveries and partial services. The customer is obliged to accept these partial deliveries and partial services provided that the affected parts of the website comply with the contractual requirements.

§ 7 Transfer of risk/shipping

1.
The risk of accidental destruction or accidental deterioration is transferred to the customer on the date of acceptance and/or transfer; if shipment has been agreed, the risk is transferred to the customer upon handover or delivery of the goods to the haulage company, freight forwarder or other person or institution designated with performing the shipment. If goods are sent via email, the risk is transferred to the customer upon sending the items to the email address specified by the customer. If, as per Section 646 of the BGB, completion of the work takes the place of acceptance, this date is relevant for the transfer of risk.
2.
The same applies if the customer is in default of acceptance.
3.
On request, the goods will be insured in accordance with the carrier’s haulage conditions at the customer’s expense.
4.
If the shipment becomes impossible through no fault of our own, the risk will be transferred to the customer upon notice of readiness for dispatch.

§ 8 Remuneration

Unless otherwise agreed in a written contract, payment for the goods and services supplied by mvh networks will be made in four parts:
20% of the fee will become due upon conclusion of the contract.
30% of the fee will become due once mvh networks has developed proposals relating to the concept and design and before the programming begins. (Presentation fee).
40% of the fee will become due upon completion of the programming.
10% of the fee will become due upon acceptance of the work.

Travel costs and expenses are generally billed separately. If extra costs are incurred as a result of preliminary work performed by mvh networks, for instance significant material costs, a corresponding down payment must be agreed and paid.

§ 9 Payment

1.
Unless otherwise agreed, the customer is obliged to pay the agreed fee without discount within ten (10) working days of receiving the goods and the invoice. Once this period has expired, the customer will fall into arrears.
2.
An early payment discount requires separate written agreement.
3.
Payment is only considered to have been made once the amount due is at our disposal. If payment is made by cheque, payment is only considered to have been made once the cheque has been cashed.
4.
If the customer falls into arrears with payments – with the first (1) instalment if partial payment has been agreed – the outstanding partial payments will become due immediately. In the event of this, mvh networks may withdraw from the contract or claim damages for non-performance. Default interest is charged at 5% p.a. over the European Central Bank’s base rate, but nevertheless a minimum of 8% p.a. in the event of a delay in payment of more than four weeks.
5.
If we become aware of circumstances which call into question the customer’s creditworthiness, in particular if a cheque is not cashed in or if his payments are stopped, we will be entitled to demand immediate payment of the entire outstanding debt, even if we were intending to accept cheques. In the event of this, we will also be entitled to demand advance payments or securities.
6.
The customer only has the right to offset a claim if his counterclaims have been legally determined by a court of law or we legally recognise them. The customer may only exercise his right of retention if his counterclaim is based on the same contractual relationship.
7.
Upon completion of the website, mvh networks shall invoice the customer via email for the contractually owed fee (final invoice). If desired, the invoice will also be sent in the post and the incurred postage costs charged to the customer. The final invoice is due for payment within ten (10) working days.
8.
mvh networks is entitled to charge the customer in instalments at appropriate intervals. The instalment amounts are based on each service already rendered by mvh networks and are agreed as €1,000.00 each for work performed. The instalments are due for payment within ten (10) working days.
9.
If the customer makes changes to the order or any other delays occur which are caused by the customer, mvh networks has the right to be compensated for any additional costs incurred. These additional costs are charged separately and may cause the delivery deadlines to be rearranged, if necessary.
10.
Withholding payments or offsetting them due to any of the customer’s counterclaims contested by mvh networks is inadmissible.

§ 10 Reservation of proprietary rights, right of retention

1.
We will retain ownership of the goods until all claims from an ongoing business relationship are settled in full.
2.
The customer is obliged to inform us immediately of third-party access to the goods, for instance in the event of seizure as well as any damage to or destruction of the goods. The customer must notify us immediately in the event of a change in ownership of the goods or if the customer’s place of residence or business changes.
3.
If the customer acts in breach of the contract, in particular if he gets into arrears or infringes an obligation (Section 4 and 5), we will be entitled to withdraw from the contract and reclaim the goods in accordance with this provision. The maximum delay period on the customer’s part is stipulated as eight (8) weeks after order confirmation.
4.
In the event of a withdrawal from the contract which can be attributed to a fault by the customer where mvh networks has not neglected its duties, the customer is obliged to pay mvh networks for the costs incurred and the services rendered to date to the amount stipulated in the contract or order confirmation.
5.
The customer is entitled to resell the goods in the regular course of business. The customer shall now assign all claims to us amounting to the total sum of the invoice that he accrued as a result of the resale to a third party. We shall accept this assignment. Upon assignment, the customer is authorised to collect the claim. We reserve the right to collect the claim ourselves if the customer does not properly satisfy his payment obligations and falls into arrears.
6.
Any processing or reconditioning of the goods by the customer will always be in our name and on our behalf. If goods are reconditioned with items that do not belong to us, we will acquire joint ownership of the new goods proportional to the value of the goods we supplied and the other reconditioned items. The same applies if the goods are mixed with other items that do not belong to us. The customer shall preserve our (joint) ownership free of charge. Goods for which we are entitled to (joint) ownership shall hereinafter be referred to as “goods subject to retention of title”.
7.
In cases where third parties access the goods subject to retention of title, particularly in the event of seizure, the customer shall inform them of our ownership and notify us immediately so that we may assert our rights to ownership. The customer shall be liable if the third party is not in a position to reimburse us for the legal or extra-judicial costs arising in this context.
8.
If the customer acts in breach of the contract – in particular if he falls into arrears – we are entitled to withdraw the goods subject to retention of title or, if applicable, demand that we are assigned the customer’s claims for surrender vis-à-vis third parties. If we withdraw or seize the goods subject to retention of title, it does not constitute a withdrawal from the contract.
9.
Until the full settlement of all due claims owed to us by the customer, we are entitled to the right of retention of all plans, manuscripts, data and other items supplied by the customer as per Section 369 of the HGB.

§ 11 Data supply/virus/data loss/onus of proof

1.
Supplied data must meet the agreed specifications. Prior to delivery and/or transfer of the supplied data, the customer must check that the data is free of viruses, worms, Trojans, etc. using anti-virus programmes with the latest updates.
2.
The customer is liable for the full amount of any damage caused that can be attributed to a virus, worm, Trojan, etc. that he sent to us. The liability also includes compensation for the costs of hiring a specialist company to check the system, assess the damage and remedy any issues as well as compensation for the corresponding downtime.
3.
The customer will bear the full risk of data loss. The customer is solely responsible for data backups and creating regular backup copies. We are entitled, but not obliged, to make an appropriate copy of the data for ourselves. We are only obliged if we are contractually obliged to do so.
4.
In the event of data loss, the customer must provide the data in question free of charge and/or supply it to us once again.
5.
We accept no responsibility for any data provided by the customer, even if it meets the requirements set out in Item 1 of this Section. Consequently, we are not liable for typesetting, spelling or formatting errors nor for any deviations in colour, contrast, saturation, etc., provided that this can be attributed to the data supplied by the customer.
6.
We are not obliged to check the data provided to us for completeness or accuracy nor to verify that it corresponds with the customer’s standards. In these cases, the order will only be executed on the basis of the data sent to us. The customer will bear the full onus of proof for the completeness of and lack of errors in the supplied data and the complete and error-free data transfer.

§ 12 Duty to notify of defects, release declarations, approval

1.
The customer is obliged to inspect the work we supply / complete and the preliminary materials and semi-finished goods sent for correction for apparent defects. Any notice of defects from the customer presupposes that the customer has properly performed his duty to inspection and objection owed by him under Section 377 of the HGB.
2.
Notices of defects are ruled out if they have not been asserted in writing within four (4) weeks of receipt of the products and goods. The term is considered to be observed if the complaint is submitted on time. The customer will bear the full onus of proof for any eligibility criteria, in particular for the defect itself, the date on which the defect is found and the punctuality of giving notice of defects. We must be informed in writing of hidden defects which could not be detected, even after an immediate and careful inspection, without delay upon discovery. Any claims based on such defects will become statute-barred one year after the transfer of risk. In the event of an infringement of the duty to inspection and objection, the goods will be considered approved in view of the defect in question.
3.
The risk of any errors (in particular relating to sentences, format, version, colour, contrast and saturation, etc.) will be transferred to the customer upon his declaration of release provided that the errors did not first occur in a production process dated after the declaration of release.
4.
Content errors caused by us will be corrected free of charge; by contrast, amendments required by the customer owing to illegibility of the provided templates or amendments for which we do not bear responsibility or which deviate from the template, in particular corrections requested by the purchaser or author, will be charged at our standard hourly rate for the hours spent working on them.
5.
In the event of modifications made after release, all associated costs will be borne by the customer.

§ 13 Guarantee

1.
mvh networks will guarantee that the supplied goods and services are technically flawless. If the item delivered or service provided is or becomes unusable due to errors, in particular resulting from poor-quality material, bad workmanship or non-contractual execution, or its usability is or becomes significantly impaired, mvh networks will, at its own discretion, either correct the defect up to the value of the order or offer an appropriate reduction in the price. In the event that a replacement is supplied, the customer is obliged to return the defective work. The warranty period is twelve (12) months. Notice of defects must be given in writing. The statutory period of limitation for the above warranty claims is also twelve (12) months. Any other warranty claims made by the customer against mvh networks are ruled out, except in cases of gross negligence or malice on the part of mvh networks and its subcontractors, in particular compensation for damage and consequential harm caused by a defect that have not occurred to the item delivered or service provided itself and compensation for other indirect damage and consequential damage, including loss of profit or damages due to production downtimes or a diminished or lack of advertising effectiveness or potential use. This does not apply to personal injury. The warranty does not cover defects or damage occurring as a result of erroneous, inaccurate or insufficient information or specifications from the customer or as a result of errors in printed documents for which mvh networks or its agents are not responsible, in particular if these documents are provided or created by the customer or if the customer fails to complain of flagrant errors in galley proofs, final artwork or final proofs submitted for acceptance or release.
2.
If supplementary performance is unsatisfactory, the customer will be entitled, at his discretion, either to withdraw from the contract or to ask for a reasonable price reduction. Unsatisfactory supplementary performance is only assumed if we have been given ample opportunity to perform supplementary work or supply a replacement without the desired success being achieved, if it is possible to perform supplementary work or supply a replacement but we refuse or cause undue delay, if there is reasonable doubt regarding the chances for success or if it is unreasonable on other grounds. However, the customer cannot assert his right to withdraw if there is only a minor deviation from the contractually agreed condition, in particular if the defects are only minor.
3.
If the customer decides to withdraw from the contract due to a legal or material defect subsequent to unsuccessful supplementary performance, he does not also have the right to claim compensation for the defect. If the customer chooses to claim compensation subsequent to unsuccessful supplementary performance, the product will remain in our possession if we so decide and if we deem this reasonable. Compensation is limited to the difference between the value of the order and the value of the faulty product. This does not apply if we can be accused of at least gross negligence, fraudulent concealment of a defect or infringement of a substantive contractual obligation.
4.
Our direct customer has the sole right to make warranty claims against us and the warranty claims are not transferable.
5.
As a basic principle, the agreed condition of the work is stated in the order confirmation, written additional agreements or the functional specifications document. Public statements, promotion or advertising on the manufacturer’s part also do not constitute any kind of contractual declaration of the condition of the work. The customer will not receive guarantees from us in the legal sense. The manufacturer’s warranty remains unaffected by this.
6.
If third-party software is installed, the software’s condition in the version stated in the order will be considered agreed.
7.
If defects occur due to the customer’s lack of system requirements or as a result of the customer’s system requirements deviating from the offer/order confirmation and/or the customer’s system is subsequently modified, we will accept no liability for this provided that the defect can be attributed to this. The customer will bear the onus of proof that defects arising in our work and services cannot be attributed to the deviating system requirements or modifications to the system.
8.
Defects in a part of the supplied goods do not entitle a contractual party to reject the entire order unless this would be unreasonable for one of the contractual parties.
9.
For deviations in the condition of the material used, we are only liable up to the amount of our own claims against the respective subcontractors. In the event of this, we are exempt from our liability if we assign our claims against the subcontractors to the customer. We are liable as a guarantor provided that claims against the subcontractor are through no fault of our own or such claims are unenforceable.

§ 14 Confidentiality/data protection

1.
The customer consents to us processing and saving the customer’s personal details required to process the order in line with statutory data protection regulations.
2.
The customer consents to his personal data being passed on to third parties provided that this is required in order to fulfil our contractual obligations.
3.
In no other case will personal data be passed on to third parties.

§ 15 Limitation of liability

1.
We shall be liable for any breach of duty committed through gross negligence and malice and for bodily injury caused through ordinary negligence. Liability for unintended actions is limited to damages which were foreseeable and typical at the time the contract was concluded.
2.
In the event of slight negligence, we will only be liable if we have breached our essential contractual obligations; our liability is limited to damages which were foreseeable and typical at the time the contract was concluded. This limitation does not apply to injury to life, limb or health. We are not liable for other damages due to slight negligence caused by a defect in the work. Potential liability for pre-contractual culpability or according to the Product Liability Act (Produkthaftungsgesetz) remains unaffected by this.
3.
Irrespective of our culpability, potential liability in the event of fraudulent concealment of a defect or acceptance of a guarantee or warranty remains unaffected by this. The manufacturer’s warranty is a guarantee made by the manufacturer and does not constitute our acceptance of a warranty.
4.
We are also responsible for the coincidental impossibility to deliver during default unless the damage would have occurred even if we made the delivery on time.
5.
Insofar as our liability for damages is ruled out or limited, this will also apply with regard to the personal liability for damages of our staff, employees, colleagues, representatives and agents.
6.
Compensation claims of a contractual and tortious nature and claims for indemnification relating to third-party product liability claims are ruled out except in the event of malice and gross negligence. The customer’s right to withdraw remains unaffected by this. With regard to the scope of services of the essential deliveries pertaining to mvh networks and third-party services, mvh networks is only liable after the customer’s unsuccessful legal action against these third parties; mvh networks will assign its claims against third parties to the customer for this purpose.
7.
Logo creation and trademark rights: mvh networks is not liable for logos designed by us being exempt from the rights of third parties. The order does not include research into older trademark rights held by third parties. In order to minimise any risk, we recommend you conduct your own research. mvh networks creates logos but does not conduct trademark searches for similar or identical logos without a further separate written order. This must be performed by a trademark law office. mvh networks is happy to offer this service separately and contract out the order to a law office – this service is not automatically included.

§ 16 Safekeeping, insurance

1.
After their delivery to the customer, templates, films, print substrate, data storage devices, data and other items suitable for reuse as well as semi-finished and finished products will only be stored beyond the delivery deadline upon prior agreement and for an extra fee.
2.
If they have been provided by the customer, the items described above will be handled with care until the delivery deadline.
3.
If the items described above are insured, the customer must purchase the insurance himself.

§ 17 Periodic work

4.
If the customer falls into full or partial arrears with due payments and does not catch up with this amount in arrears within a week of receiving a warning, we have the right to terminate the contract without notice.

§ 18 Hosting

Unless otherwise agreed, the contract will be concluded for a period of twelve (12) months. If the contract has been concluded for a specific term or a minimum term of contract has been agreed with the customer, the contract will be extended by the agreed term or minimum term each time, but by a maximum of one (1) year if it is not terminated with a notice period of four (4) weeks from the respective expiry of the specific term or the minimum term of contract. For contracts with a term or a minimum term of contract of up to twelve (12) months, mvh networks is entitled to terminate the contract after one (1) month at the earliest with a notice period of three months as of the end of the month. This also applies if the contract has been extended by a specific term. For contracts with a term or a minimum term of contract of more than twelve (12) months and up to twenty four (24) months, mvh networks is entitled to terminate the contract with a notice period of six (6) months as of the end of the month. A contract with an indefinite term can be terminated by either party without giving reasons with a notice period of thirty (30) days as of the end of the month.

§ 19 Legal information

1.
We are entitled to make reference to our company on our works in a suitable way, e.g. by adding a hyperlink. The website will include references to the web designer’s role as creator (e.g. “web design development mvh networks” and logo) in suitable places. The customer is not entitled to remove these references without the web designer’s consent. If the website is assigned to a third party, this party is not authorised to remove this reference. The customer is obliged to inform the buyer of this.

§ 20 Applicable law, jurisdiction and partial invalidity

1.
The laws of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Unless otherwise agreed, German law shall apply in contracts with international principals.
2.
Insofar as the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Stuttgart has exclusive jurisdiction for all disputes arising directly or indirectly from the contract.
3.
Unless otherwise agreed in writing, the place of fulfilment is mvh networks’ company headquarters. The place of jurisdiction is Stuttgart, Germany.
4.
If a provision in these terms and conditions or a provision within the framework of other agreements is or becomes void, the effectiveness of all other provisions or agreements shall remain unaffected by this.