The services, deliveries and offers of WEVENTURE GmbH (hereinafter referred to as “WEVENTURE”) to the contractual partners (hereinafter referred to as “customers”) are, subject to individual agreements, exclusively based on these General Terms and Conditions (hereinafter referred to as “GTC”). These General Terms and Conditions apply to all business relations, as far as the customer is an entrepreneur according to § 14 of the German Civil Code (BGB) or a legal entity under public law. Details of the contractually owed service result from the offer submitted by WEVENTURE and the order confirmation together with these GTC.
General terms and conditions of the customer do not apply. Conflicting or supplementary General Terms and Conditions of the customer will only become part of the contract if WEVENTURE explicitly agrees to their validity in writing. This requirement of consent is valid in any case, especially if WEVENTURE, knowing the customer’s general terms and conditions, carries out the services to the customer without reservation.
These terms and conditions also apply to future business relations between WEVENTURE and the customer, even if they are not explicitly included again.
Deviations from these GTC are only effective if WEVENTURE confirms them in writing.
The customer will be informed about changes of these GTC in writing, by fax or by e-mail. If the customer does not object to a change of these GTC within four weeks after receipt of the notification, the changes are considered as accepted by the customer. The customer will be informed separately of the right to object and the legal consequences of silence in the event of an amendment to these GTC.
2. Offer and conclusion of contract
Unless otherwise expressly agreed in writing, the presentation of the services to be rendered and/or the preparation of a cost calculation by WEVENTURE does not constitute a binding offer by WEVENTURE. The same applies to offers that are subject to change and also non-binding, unless otherwise expressly agreed in writing.
Only the binding placing of an order by the customer represents an offer to conclude a contract, which WEVENTURE can accept – also tacitly or by conclusive behaviour, like in particular the provision of the contractual services.
3. Services of WEVENTURE; obligations of the customer to cooperate
Subject of the respective order is the agreed service described in the offer of WEVENTURE, in case of doubt a certain success is not owed. The contractual services of WEVENTURE regularly represent services. Subsequent changes of the service content have to be in written form. In case of subsequent changes of the services, any deadlines, acceptance modalities, remuneration and reimbursement of expenses have to be adjusted according to the changes.
If the agreed service is the production of a website (landing page etc.) or software, WEVENTURE commits itself, as far as this is technically possible and not otherwise agreed, to provide the customer with the corresponding data sets or software on a web server. As far as the delivery of a data carrier is agreed upon, this is usually done from WEVENTURE’s headquarters. Upon request and at the customer’s expense the data carrier will be sent to another destination. Unless otherwise agreed, WEVENTURE is entitled to determine the type of shipment (especially transport company, shipping route, packaging). The risk of accidental loss and accidental deterioration of the data carrier as well as the risk of delay shall pass to the customer as follows, even in case of freight-free delivery In the case of sale by delivery to a place other than the place of performance, the risk shall pass to the customer upon delivery of the data carrier to the forwarding agent, carrier or other person or institution designated to carry out the shipment. At the customer’s request and expense, WEVENTURE will insure deliveries against the usual transport risks. All services provided by WEVENTURE (especially design drafts, drafts about the website structure, etc.) have to be checked by the customer for content and functionality and have to be released within seven (7) days after receipt by the customer. If they are not released in time, they are considered to be approved by the customer.
The customer has to provide WEVENTURE immediately with all information and documents necessary for the provision of the services. He will immediately inform WEVENTURE about all events that are important for the execution of the order, even if these circumstances only become known during the execution of the order. The customer bears the costs that arise from the fact that work has to be repeated or is delayed due to his incorrect, incomplete or subsequently changed information provided by WEVENTURE.
The customer is obliged to check the documents provided for the execution of the order (especially texts, pictures, graphics, logos, etc.) for possible existing copyrights, trademark rights or other rights of third parties. WEVENTURE is not liable for the violation of such rights. If WEVENTURE is held liable for such a violation of rights, the customer shall indemnify and hold WEVENTURE harmless; the customer shall compensate WEVENTURE for all disadvantages WEVENTURE suffers due to a claim by third parties. This also applies to reasonable costs of legal defence.
The customer is obliged to protect himself adequately against data loss. Since the installation of software, but also the use of installed software and the processing of data entails the risk of data loss, the customer is obliged to take precautions against data loss by means of comprehensive data backup before such measures are taken.
Unless expressly agreed otherwise, the customer shall procure all official permits that may be necessary in connection with the contractual service in good time and at his own expense. It is incumbent upon him to comply with these permits and all other public and statutory regulations in connection with the provision of the service.
4. Dates and deadlines
Periods and dates for deliveries and services stated by WEVENTURE or the customer are not fixed dates, unless they have been expressly agreed upon as such by the parties in writing.
If WEVENTURE’s performance is delayed for reasons outside of its sphere or for reasons WEVENTURE is not responsible for, such as force majeure and other unforeseeable events that cannot be averted with reasonable means, WEVENTURE’s performance obligations are suspended as long as the obstacle exists. The service periods are extended accordingly. If such delays last more than two (2) months, the customer and WEVENTURE are entitled to withdraw from the contract.
If WEVENTURE is in delay, the customer can only withdraw from the contract after having set WEVENTURE a reasonable period of time in writing, but at least two (2) weeks, after the occurrence of the delay, and this period has expired without result.
If the customer is in default of acceptance or violates any other obligations to cooperate, WEVENTURE is entitled to claim the damages incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the service is transferred to the customer at the moment the customer is in default of acceptance.
5. Third-party commissioning
WEVENTURE has the right, at its own discretion, to carry out the contractual services itself or to use competent third parties as subcontractors for the provision of such services.
The customer is only entitled to independently commission third parties in connection with the contractual services after prior consultation with WEVENTURE and at his own expense. As far as the customer orders external services, the respective contractors are vicarious agents of the customer.
6. Remuneration and expenses
WEVENTURE’s remuneration for the contractual services is determined by the individual contractual regulation according to WEVENTURE’s offer.
Additional services (e.g. modification or creation of drafts/concepts/designs, etc.) will be charged separately according to expenditure.
Unless otherwise stated, WEVENTURE is bound to the prices stated in its offers for thirty (30) days from the date of the offer. Decisive are the prices stated in an offer, plus the respective legal sales tax. Additional deliveries and services are charged separately.
In case WEVENTURE is not able to carry out work for reasons beyond WEVENTURE’s control and WEVENTURE is not entitled to the full contractual remuneration, the customer will owe an appropriate fee for the work carried out. The fee is determined by the relation of the performed work to the contractually agreed scope of services. The assertion of further claims against the customer, in particular any claims for compensation, shall not be affected by this.
If not explicitly agreed otherwise, the customer has to reimburse WEVENTURE’s expenses in connection with the respective service separately. Expenses in the sense of this paragraph are especially external costs, which are caused by the assignment of third parties, travel and transport costs, etc.
WEVENTURE can demand reasonable advance payments for expenses. In case WEVENTURE subcontracts subcontracting in the name and on account of WEVENTURE, WEVENTURE is entitled to an advance payment of 50% of the respective order amount. In such cases the customer has to indemnify WEVENTURE completely from the resulting liabilities.
The customer acknowledges that WEVENTURE’s calculated expenses may differ from the actual expenses. If it is foreseeable that the actual expenses will exceed the expenses calculated by WEVENTURE, WEVENTURE will inform the customer about the additional expenses. In case of a deviation of no more than 10%, the actual expenses are considered as approved by the customer. Any additional expenses incurred are only to be reimbursed by the customer if he has explicitly approved them. Approval shall be deemed to have been granted by the customer if the customer does not object in writing within three (3) working days after this notification and at the same time announces more cost-effective alternatives.
The development of conceptual and creative proposals by WEVENTURE with the aim of concluding a contract is carried out against payment of a separately agreed remuneration (“presentation fee”), notwithstanding any regulations deviating from this in individual cases. Copyrights, rights of use and ownership of the work presented by WEVENTURE remain with WEVENTURE despite the calculation of a presentation fee. If WEVENTURE does not receive an order after the customer’s participation in a presentation, all services provided by WEVENTURE, especially their content, remain WEVENTURE’s property. The customer is not entitled to further use them – in any form whatsoever. As far as the customer has been provided with documents, they have to be returned to WEVENTURE immediately after WEVENTURE’s request.
Unless otherwise stated, invoiced amounts are shown without the legal sales tax; any sales tax that may be incurred will be shown separately.
7. Maturity and offsetting
Remuneration and reimbursement of expenses are due at the end of each month in the case of longer-term activities, otherwise at the latest after WEVENTURE has rendered its services after invoicing, without deductions within fourteen (14) days after invoicing.
Default of the customer occurs immediately upon receipt of a reminder, at the latest, however, after thirty (30) days after due date and receipt of an invoice. WEVENTURE is entitled according to § 288 para. 2 BGB (German Civil Code), to demand interest on arrears at nine (9) percentage points above the respective base interest rate upon occurrence of the delay, without prejudice to its other rights and claims. Further rights of WEVENTURE to claim higher damages remain unaffected.
As far as the customer has not made due payments, WEVENTURE is entitled to assert a right of retention on the services still to be rendered or to refuse further fulfilment. Further rights of WEVENTURE, especially the right to withdraw from the contract, remain unaffected. As far as payment in instalments has been agreed upon with the customer, the entire payment is due immediately if the customer culpably defaults on payment of the first instalment.
The customer shall only be entitled to offsetting rights to the extent that his claim has been legally established or is undisputed. The same applies to the right of retention, the effective exercise of which is also dependent on the customer’s counterclaim being based on the same contractual relationship.
WEVENTURE is entitled to offset payments of the customer against older claims against the customer first. The crediting takes place as follows: If costs and interest have already been incurred, WEVENTURE will first offset the payment against the costs, then against the interest and finally against the main claim. Within the scope of the respective claim category, the crediting depends on the age of the claim (in this respect, the due date is decisive), whereby the oldest claims are always paid off first.
8. Term and termination
Unless otherwise agreed in the offer or otherwise, the contract shall run until the end of the respective order.
A termination of continuing obligations can only be made without notice for good cause. Good cause shall be deemed to exist in particular if one party i. violates an essential contractual obligation, ii. breaches the confidentiality referred to in point 12, iii. is in default of acceptance, if a reminder has been sent beforehand, or iv. files a petition for the opening of insolvency proceedings on his own initiative if insolvency proceedings are opened or a petition for the opening of insolvency proceedings is rejected due to lack of assets.
An important reason for WEVENTURE is also given if the agreed remuneration is not paid by the customer at the due date.
Any declaration of termination must be in written form.
In case of termination for good cause, WEVENTURE is entitled to 80% of the agreed remuneration for the outstanding part of the order as lump-sum compensation, as far as the fact justifying the termination is based on a culpable behaviour of the customer. The customer is allowed to prove that WEVENTURE did not suffer any damage or that the damage was significantly lower; WEVENTURE reserves the right to prove higher damages.
9. Intellectual property; rights of use; retention of title
All services rendered by WEVENTURE within the scope of the order, especially the creation of drafts, concepts, graphics, data sets, software etc., as well as the rights thereto, remain the sole property of WEVENTURE and may only be used by the customer for the agreed purpose and within the agreed period of use. The customer is not entitled to any further use, unless otherwise expressly agreed in writing.
The customer acquires the right to the agreed use of all services provided by WEVENTURE with the complete payment. Rights of use for work/services that have not been fully paid for at the end of the contract remain with WEVENTURE, subject to an individual written agreement.
The transferred rights of use are non-exclusive and limited to the DACH region (the territory of the Federal Republic of Germany, the Republic of Austria and the Swiss Confederation). A transfer of rights of use and exercise beyond this requires an individual written agreement; this also applies to ideas, concepts and drafts.
Changes, adaptations and similar of WEVENTURE’s work or services, such as in particular their further development by the customer or by third parties working for the customer, are only allowed with WEVENTURE’s explicit written consent, unless a corresponding objection by WEVENTURE would violate the principle of good faith (Section 242 BGB). The prohibition of changes does not apply to necessary and contractually required updates.
The prior written consent of WEVENTURE is also required for any partial or complete, explicit or conclusive transfer of rights of use by the customer to third parties. This also applies to any actual making available, which is equivalent to a transfer of the right of use. WEVENTURE is only allowed to refuse the transfer to companies associated with the customer for good cause. If a licence fee for the transfer has not been agreed upon, an important reason exists in any case.
Until complete payment of all current and future claims of WEVENTURE resulting from the contractual relationship and an ongoing business relationship (secured claims) WEVENTURE reserves the right of ownership of all delivered physical services, work results and goods (especially data carriers, documentation material, etc.).
WEVENTURE’s physical services, work results and goods under reservation of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The customer has to inform WEVENTURE immediately in written form, if and as far as third parties access WEVENTURE’s works.
Software products of third parties remain intellectual property of the respective manufacturer/licensor. The corresponding brand names and logos belong to the manufacturers of the offered products. When using such delivered products, industrial property rights of third parties are to be observed. In addition, the provisions on warranty of the respective software manufacturer apply.
WEVENTURE does not owe any success in the legal sense, unless otherwise expressly agreed in writing.
If the law of purchase or contract for work and services applies, the latter only if, according to the individual agreement of the parties, a work is to be owed in exceptional cases, the following applies: A claim to rectification of defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, or that arises due to special external influences that are not assumed under the contract, as well as in the event of non-reproducible software errors. If the customer or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the consequences thereof.
The customer must report obvious defects within one (1) week from delivery or possibility of use. The customer must report non-obvious defects within two (2) weeks of discovery. Delayed notifications of defects exclude the warranty.
Warranty claims of the parties shall become statute-barred within one (1) year after the respective party becomes aware of the circumstances justifying the claim. The legal regulations at the beginning, suspension and restart of the limitation period remain unaffected.
WEVENTURE is only liable for damages – no matter for which legal reason – in case of intent and gross negligence. In case of simple negligence WEVENTURE is only liable for damages resulting from injury to life, body or health or for damages resulting from the violation of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely); in this case, however, WEVENTURE’s liability is limited to the compensation of the foreseeable, typically occurring damage. WEVENTURE’s liability according to the Product Liability Act remains unaffected. Exclusions and limitations of liability apply to the same extent in favour of WEVENTURE’s organs, legal representatives, employees and other auxiliary persons.
WEVENTURE is not liable for defective deliveries or services of third parties, which are commissioned by WEVENTURE in its own name at the customer’s request. Excluded from this is a possible selection and monitoring fault for unauthorised actions.
As far as WEVENTURE commissions third party services in the customer’s name and on the customer’s account, WEVENTURE is not liable for the services and work results of the commissioned third parties. The customer is responsible for the release of production and publication. If the customer delegates the release in whole or in part to WEVENTURE in exceptional cases, he exempts WEVENTURE from liability.
WEVENTURE is not liable for the legal protectability, registrability and admissibility under competition law of ideas, concepts, drafts or other materials created within the scope of the order. In this respect, the legal examination of the services and work results is the sole responsibility of the customer.
All information and documents of the respective other party which are marked as confidential or which are to be regarded as confidential from the circumstances, in particular information about operational processes, business relations and secret know-how (hereinafter referred to as “Confidential Information”), are to be treated confidentially, kept secret, not disclosed, and protected from access or knowledge by unauthorized persons by appropriate means.
These confidentiality obligations shall continue to exist after termination of the contract. Such Confidential Information is excluded from this obligation, i. which were demonstrably already known to the recipient at the time of conclusion of the contract or subsequently become known to him by a third party, without this infringing a confidentiality agreement, statutory provisions or official orders ii. which are publicly known at the time of conclusion of the contract or become publicly known thereafter, unless this is based on a breach of these confidentiality obligations; iii. which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permitted and possible by law, the recipient obliged to disclose shall inform the other party in advance and give it the opportunity to take action against the disclosure.
13. Privacy: References
The parties are obliged to observe the relevant data protection regulations. WEVENTURE will in particular, if it comes into contact with personal data, only collect, process or use this data within the scope of the customer’s instructions. The parties oblige their employees to observe data secrecy or confidentiality of personal data, unless such an obligation already exists.
WEVENTURE is also entitled to have the data processed by third parties, provided that these are subject to the provisions according to clause 13 a) like own employees.
WEVENTURE is entitled to store the data concerning the provision of services and to process and use them for operational purposes in accordance with the legal regulations. The passing on to third parties is permitted if and as far as this is subject matter of the contract – for example when registering domains or similar. As far as WEVENTURE gains access to the data stored and processed by the customer, it is incumbent on the customer to comply with all data protection regulations, especially to ensure a sufficient legal basis for the original collection and any further processing as well as to fulfil legal information obligations.
WEVENTURE may name the customer as a reference and use the provided service for self-promotion purposes.
14. Final provisions
Oral collateral agreements have not been made. Additions and amendments to the contract must be made in writing. This also applies to the waiver of the requirement of the written form.
In the event of invalidity of individual provisions, the validity of the remaining provisions shall remain unaffected. The ineffective provision shall be replaced by a provision that comes closest to the economic interests of both parties in terms of content.
The respective contract and these General Terms and Conditions shall be governed exclusively by German law, excluding its conflict of laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Unless otherwise stated in WEVENTURE’s order confirmation, the place of performance is WEVENTURE’s place of business.
Exclusive – also international – place of jurisdiction for all disputes resulting from the respective contractual relationship is WEVENTURE’s place of business. WEVENTURE is entitled to file a suit at the place of performance, even if it is not WEVENTURE’s place of business.