Terms and Conditions of the 4millions GmbH
translation for information purposes only. Any discrepancies or differences in the translation are not binding and have no legal effect for compliance or enforcement purposes. In case of discrepancies the German official version shall prevail.
1. Subject matter and scope
The following terms and conditions apply to all contracts concluded between the 4millions GmbH and the client. Deviating terms and conditions of the client, which 4millions GmbH does not expressly recognize, will not become part of the contract, even if 4millions GmbH does not expressly object to them.
4millions GmbH provides consulting, conception, editing, media sales as well as technical services in the area of digital and print media.
2. Contract formation, service provision by third parties
All offers of 4millions GmbH are subject to change and are non-binding.
Contracts that 4millions GmbH concludes with its clients only come into effect after an order confirmation from 4millions GmbH.
4millions GmbH is entitled to commission third parties with the provision of the entire service or individual service parts, as far as this is necessary.
3. Service obligations 4millions
The individual performance obligations of 4millions GmbH result from the contract concluded in detail. 4millions GmbH advises the clients both in regard to design possibility and on the possible functionalities of the service, considering the target audiences, that shall be addressed by the service provided as well as the objectives that the client pursues with the order.
Industry-specific knowledge is not expected from 4millions GmbH. 4millions GmbH is, without a respective agreement, not obliged to obtain specific knowledge by surveys, investigation or other means of market research, regarding habits and user behavior of persons that are part of the clients target audience.
4. Cooperation duties of the client
For the coordination and control of the services to be provided, the client designates a responsible person who can make and receive binding declarations in relation to the service to be provided. The person in authority or this person’s substitute must be reachable by telephone or e-mail for 4millions GmbH during the common working hours.
If the performance of a contract requires the client to provide materials, these must be provided for 4 millions free of third-parties rights in a common format. In the case of enforcement of third parties’ rights, the client binds himself to indemnify 4millions GmbH from liability. This also includes the costs of legal defence.
In general, a fixed price is agreed upon with respect to the volume of orders, possibly in progressive segments. In the case that no fixed price is agreed upon, 4millions GmbH invoices deliveries and services on the basis of the actual time and material costs actually incurred, plus travel expenses and any necessary acquisition of third-party products, rights and expenses for telephone, fax, courier, data carrier, printouts/copies as well as fixed installation fees.
Subsequent alterations of services issued by the client regarding contracts at a fixed price entitle 4millions GmbH to charge the additional expenses, provided that 4millions GmbH has informed the client about the additional expenses.
The invoices submitted by 4millions GmbH are due within 14 days starting from the date of invoice without any deductions. 4millions GmbH is entitled to issue interim invoices. If invoices are not settled within 14 days, the client automatically falls into arrears and must reimburse 4millions GmbH for any damages caused by default. Per reminder, 4millions GmbH is entitled to charge a reminder fee of 2.50 EUR.
The agreed prices are exclusive of VAT. The client can only offset with such claims that are undisputed or legally binding.
6. Copyright / Rights of use
Any drafts, concepts, documents etc. of 4millions GmbH are works protected by copyright law, even if they do not fulfil the requirements of § 2 UrhG (Copyright). Any services of 4millions GmbH may not be used or edited in a way exceeding the purpose stated out in the contract without the consent of 4millions GmbH.
All rights of use and, to the extent agreed, property rights shall only be transferred to the client after full payment of the agreed remuneration. In the case of a transfer of rights, the scope thereof is limited in terms of location, time and content exclusively to the contractual agreements or the purpose of the contract (§ 31 (5) UrhG (Copyright) applies accordingly). The client allows 4millions GmbH to use the service as a reference for its own advertising purposes and use screenshots for this purpose.
Insofar as 4millions GmbH agrees to use third-party software or other products, such as Image files, sound files, etc. integrated in the overall solution, the granting of rights is not covered by the agreement. Any legal reclamations are the responsibility of the client.
Claims for damages against 4millions GmbH are excluded irrespective of the legal grounds unless 4millions GmbH acted wilfully or grossly negligently, there is a bodily injury, or the damage is due to the absence of guaranteed properties or the breach of a contractual obligation (cardinal obligation). Cardinal obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the contracting party may regularly rely. The limitation of liability also applies in the case of the fault of a vicarious agent of 4millions GmbH.
However, the claim for damages for the breach of essential contractual obligations is limited to the contractually typical, foreseeable damage. In particular, 4millions GmbH is not liable for damages that are in the sphere of the client, or that are caused by the disruption of the communication networks of other operators, or external content providers are not capable of providing content or other services on time or at all to provide.
To the extent legally permissible, the liability claims or claims for damages become statute-barred within one year after knowledge or grossly negligent ignorance of the existence of the liability prerequisites.
Unless otherwise agreed, the client and 4millions GmbH are entitled at any time to terminate the contractual relationship in writing with a notice period of three months to the end of the month. In this case, the provision of § 649 BGB (Civil Code of Germany) applies. In any case, the client shall bear all expenses proven up to the time of termination as well as all legally justified and irrevocable obligations of 4millions GmbH when third parties are involved. 4millions GmbH is entitled to demand the agreed fee for the respective service phase, within which the termination takes place. Further claims of 4millions GmbH remain unaffected.
Decisive for the termination date is the receipt of the letter of termination at the opposite side. Extraordinary termination rights remain unaffected.
9. Final clauses
This contract is subject exclusively to German law excluding the UN Sales Convention.
Jurisdiction for all disputes arising out of or in connection with the contract is the seat of 4millions GmbH.
Should individual provisions be or become ineffective, the effectiveness remains otherwise unaffected. The ineffective provision shall be replaced by a provision that most closely approximates the economic provision of the inapplicable regulation.
as from March 2018