GTC
General Terms and Conditions of P&S Digitale Kommunikation GmbH, Hafenstr. 25-27 68159 Mannheim (hereinafter "P&S Digitale Kommunikation GmbH")
Part 1 - General provisions
1. general
- These General Terms and Conditions (GTC) apply to all contracts concluded between P&S Digitale Kommunikation GmbH and the customer.
- P&S Digitale Kommunikation GmbH offers the client various agency services. The specific scope of services is the subject of individual agreements between P&S Digitale Kommunikation GmbH and the client.
- P&S Digitale Kommunikation GmbH does not conclude contracts with consumers or private individuals.
- P&S Digitale Kommunikation GmbH shall be entitled to subcontract the necessary services in its own name and for its own account to subcontractors, who in turn may also use subcontractors. P&S Digitale Kommunikation GmbH shall remain the sole contractual partner of the customer. The use of subcontractors shall not take place if it is apparent to P&S Digitale Kommunikation GmbH that their use is contrary to the legitimate interests of the customer.
- Insofar as other contractual documents in text or written form have become part of the contract in addition to these GTC, the provisions of these other contractual documents shall take precedence over these GTC in the event of a contradiction.
- P&S Digitale Kommunikation GmbH does not recognize any general terms and conditions that deviate from these terms and conditions and that are used by the customer - subject to express consent.
2. obligations of the customer to cooperate
- The customer is obliged to provide the information, data, works (e.g. the data for the imprint, graphics, etc.) and accesses to be provided by him for the purpose of fulfilling the order completely and correctly. He must also ensure that the instructions given by him comply with the applicable law.
- Subject to deviating individual agreements, the customer shall be responsible for the procurement of all data or other content (e.g. texts, videos, audio, templates, graphics, fonts) and/or system environments (e.g. color definitions, technical specifications) (hereinafter "content") required for the implementation of the project and shall make these available to P&S Digitale Kommunikation GmbH in a timely manner and in a suitable form. This is a prerequisite for the work of P&S Digitale Kommunikation GmbH. If the customer does not provide this and does not make any further specifications, P&S Digitale Kommunikation GmbH may, at its own discretion and in compliance with the copyright labeling requirements, use, for example, image material from common providers (e.g. stock photo service providers) or provide the corresponding parts of the website with a placeholder.
- If the customer provides P&S Digitale Kommunikation GmbH with content, he must ensure that this content does not violate the rights of third parties (e.g. copyrights) or other legal norms. The customer warrants that it is authorized to transfer the agreed rights of use because it has either created the content itself or has effectively acquired the rights necessary for the transfer itself. For the duration of the contractual relationship, the customer grants P&S Digitale Kommunikation GmbH the non-exclusive, non-transferable right to use the content provided by the customer for the fulfillment of the agreed service. This includes the editing, modification and publication of the content as part of the agreed service. These rights serve the sole purpose of the fulfillment of the contract by P&S Digitale Kommunikation GmbH.
- The customer undertakes to indemnify P&S Digitale Kommunikation GmbH against all third-party claims that may arise from the use of the content provided, including the reasonable costs of legal defense. This indemnification obligation includes in particular claims based on an infringement of copyrights, trademark rights, patents, registered designs or other intellectual property rights. The Customer shall support P&S Digitale Kommunikation GmbH in the defense against the aforementioned claims asserted by third parties against the Contractor due to infringements of intellectual property rights (copyrights, trademark rights, rights to one's own image, design patents, etc.) to the content, in particular by providing the information necessary for defense. The customer shall be obliged to reimburse P&S Digitale Kommunikation GmbH for all expenses necessary for legal prosecution - in particular the necessary legal fees and court costs - incurred by P&S Digitale Kommunikation GmbH as a result of claims asserted by third parties.
- P&S Digitale Kommunikation GmbH is not legally entitled to provide legal advice to the Customer. In particular, P&S Digitale Kommunikation GmbH is not obliged and legally not in a position to check the Customer's business model and/or the content provided by the Customer for compatibility with applicable law. In particular, P&S Digitale Kommunikation GmbH shall not carry out any trademark searches or other conflict-of-law checks with regard to the works provided by the customer. Insofar as the customer issues specific instructions regarding the work to be produced, he shall be liable for this himself.
- If the conclusion of an order processing contract pursuant to Art. 28 GDPR is required for individual order components, both contracting parties undertake to conclude such a contract - to be provided by P&S Digitale Kommunikation GmbH - before the start of the provision of services.
- P&S Digitale Kommunikation GmbH shall not be liable to the customer in any way for delays and delays in the implementation of projects caused by late (necessary) cooperation or input from the customer; the provisions under the heading "Liability/exemption" shall remain unaffected by this.
- If the customer fails to comply with its obligations to cooperate under this section, P&S Digitale Kommunikation GmbH may charge the customer for any additional expenses incurred as a result (e.g. costs for stock photos and time spent searching for them).
3. use of artificial intelligence (AI)
- P&S Digitale Kommunikation GmbH is entitled to use artificial intelligence technologies (AI tools) to create content (e.g. text, images, sound or video) as part of the provision of services. All content generated by an AI is checked by a natural person after it has been created and adapted if necessary. AI tools will not be used if it is apparent to P&S Digitale Kommunikation GmbH that their use is contrary to the legitimate interests of the customer. In particular, P&S Digitale Kommunikation GmbH will not enter any sensitive or confidential information provided by the customer into AI tools without the customer's consent. If the customer does not wish AI technologies to be used for certain projects or parts thereof, he must inform P&S Digitale Kommunikation GmbH of this independently in text form.
- P&S Digitale Kommunikation GmbH warrants that content created in whole or in part with AI does not infringe the rights of third parties. If exclusive rights of use are to be transferred to content that has been created in whole or in part with the help of AI, P&S Digitale Kommunikation GmbH will ensure that such a transfer of rights of use is possible (e.g. by modifying the AI-generated works in such a way that the level of creation and thus copyright protection is achieved).
- A separate labeling of AI-generated content is only owed if and insofar as the labeling of the content is required by law or if it is already foreseeable at the time of service provision that a labeling obligation will be required by law in the foreseeable future (e.g. due to regulations in the AI Regulation). The same applies to notifications that certain work results have been created with the aid of artificial intelligence.
Part 2 - Online presence and technology
1. website and store development (agile)
- Unless otherwise agreed individually, the creation of new or the expansion of existing websites/shops or web/shop components (hereinafter "website creation") shall be based on agile methods. The other provisions of these GTC remain unaffected.
- The subject matter of website creation contracts between P&S Digitale Kommunikation GmbH and the customer is generally the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the customer's technical and/or design specifications. Website development contracts concluded between the parties are contracts for work within the meaning of §§ 631 ff. BGB (GERMAN CIVIL CODE).
- The services agreed in detail shall result from the individual contract concluded between P&S Digitale Kommunikation GmbH and the customer. For this purpose, the customer shall first submit a request to P&S Digitale Kommunikation GmbH with as precise a description as possible of the desired website content (creative content such as images, layouts, logos, fonts and the like shall be specified and provided by the customer, unless otherwise agreed). This request constitutes an invitation to submit an offer by P&S Digitale Kommunikation GmbH. P&S Digitale Kommunikation GmbH shall examine the customer's ideas described in the request to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency and shall prepare an offer on the basis of the wishes arising from the customer's request. A contract between P&S Digitale Kommunikation GmbH and the customer shall only come into existence upon acceptance of the offer by the customer.
- The customer can make customer requests at any time, insofar as these are covered by the originally agreed scope of services. Such adjustments shall become part of the original contract if both contracting parties agree in text form (e.g. by e-mail). Otherwise, P&S Digitale Kommunikation GmbH shall only be obliged to produce the functions/items listed in the contract or to provide the agreed service. Any additional services must be agreed and remunerated separately.
- As soon as the website has been completed, P&S Digitale Kommunikation GmbH will ask the customer to accept the website. If required, a test phase can be agreed before acceptance.
- The examination or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) shall only be owed by P&S Digitale Kommunikation GmbH if this has been expressly agreed in an individual contract. There is no entitlement to the publication of graphics, source codes, (development) documentation, manuals and other additional documentation - subject to deviating express individual agreements.
- Unless otherwise agreed, the websites created are optimized for the Chrome, Safari, Firefox and Edge browsers in their current version (in each case the last two versions of the browser). Search engine optimization (SEO) is only owed if it has been expressly agreed. Optimization for mobile devices is also only owed if this has been expressly agreed.
- P&S Digitale Kommunikation GmbH is not entitled and not obliged to advise the customer on competition, consumer, labeling, data protection or other legal issues within the meaning of the Legal Services Act. It is therefore the responsibility of the customer to inform himself about the competition, consumer or labeling law provisions applicable to his store / website and, if necessary, to have the store / website checked by a specialized lawyer.
- After completion of the websites and/or individual parts thereof, P&S Digitale Kommunikation GmbH may offer the customer maintenance and care services in relation to the websites. However, P&S Digitale Kommunikation GmbH shall not be obliged to make such an offer, nor shall the customer be obliged to make use of the further services offered by P&S Digitale Kommunikation GmbH. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and care services are agreed between the parties, the customer alone shall be responsible for the technical maintenance and up-to-dateness of the websites after acceptance. P&S Digitale Kommunikation GmbH shall not be liable to the customer for any security gaps that are exploited by third parties for illegal purposes through the use of outdated software (hacking).
2. website and store creation (requirements and functional specifications)
- If the creation of new or the expansion of existing websites/shops or web/shop components (hereinafter "website creation") has been agreed between the contracting parties on the basis of a specification sheet, the order shall be processed in accordance with this clause.
- The subject matter of website creation contracts between P&S Digitale Kommunikation GmbH and the customer is generally the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the customer's technical and/or design specifications. Website development contracts concluded between the parties are contracts for work within the meaning of §§ 631 ff. BGB (GERMAN CIVIL CODE).
- The scope of the services to be provided by P&S Digitale Kommunikation GmbH shall be determined on the one hand by individual contractual agreements between the parties and on the other hand by a detailed specification sheet drawn up by the customer and the specifications based on it. P&S Digitale Kommunikation GmbH shall examine the customer's ideas described in the specifications to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency. Should P&S Digitale Kommunikation GmbH recognize that the specifications contained in the specification sheet are not suitable for the creation of a website, P&S Digitale Kommunikation GmbH shall inform the customer immediately and submit a corresponding proposal for a supplement and/or adaptation of the specification sheet. The Customer shall comment on any proposals made by P&S Digitale Kommunikation GmbH regarding the specifications in writing or in text form within a reasonable period of time and finally confirm the contents of the specifications to P&S Digitale Kommunikation GmbH in writing or in text form. If there is agreement between the parties regarding the specifications, its contents shall become part of the contract.
- On the basis of the specifications, P&S Digitale Kommunikation GmbH shall prepare a functional specification which describes in particular the technical and/or design implementation of the requirements contained in the specifications. Upon completion, P&S Digitale Kommunikation GmbH shall submit the specifications to the client for acceptance. The customer shall be entitled to reject the specifications drawn up by P&S Digitale Kommunikation GmbH and to notify P&S Digitale Kommunikation GmbH of any requests for changes or adaptations. P&S Digitale Kommunikation GmbH undertakes to submit a maximum of two alternative proposals, taking into account the customer's wishes. If the customer finally does not agree with the last proposal of P&S Digitale Kommunikation GmbH, the customer or P&S Digitale Kommunikation GmbH may - if legally possible - terminate the contractual relationship extraordinarily or withdraw from the contract. In this case, the fees and/or expenses incurred by P&S Digitale Kommunikation GmbH in connection with the specifications and/or requirements specification shall be appropriately remunerated or reimbursed by the customer.
- If the specifications are accepted by the customer, the services described therein shall be deemed to have been finally agreed between the parties. Any deviation from the contents of the specifications accepted by the customer shall require an express individual agreement between the parties. P&S Digitale Kommunikation GmbH shall not provide any services beyond those described in the specifications accepted by the customer. Likewise, P&S Digitale Kommunikation GmbH shall not provide any services that are less than those described in the specifications accepted by the customer. After acceptance of the specifications by the customer, P&S Digitale Kommunikation GmbH shall develop and program the websites in accordance with the agreed specifications.
- As soon as the website has been completed, P&S Digitale Kommunikation GmbH will ask the customer to accept the website. If necessary, a test phase can be agreed before acceptance. If the customer discovers errors before acceptance or in the course of an agreed test phase, he shall notify P&S Digitale Kommunikation GmbH of these in writing or in text form P&S Digitale Kommunikation GmbH shall endeavor to correct the errors professionally. For this purpose, P&S Digitale Kommunikation GmbH may provide temporary workarounds.
- The examination or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) shall only be owed by P&S Digitale Kommunikation GmbH if this has been expressly agreed in an individual contract. There is no entitlement to the publication of graphics, source codes, (development) documentation, manuals and other additional documentation - subject to deviating express individual agreements.
- Unless otherwise agreed, the websites created are optimized for the Chrome, Safari, Firefox and Edge browsers in their current version (in each case the last two versions of the browser). Search engine optimization (SEO) is only owed if it has been expressly agreed. Optimization for mobile devices is also only owed if this has been expressly agreed.
- P&S Digitale Kommunikation GmbH is not entitled and not obliged to advise the customer on competition, consumer, labeling, data protection or other legal issues within the meaning of the Legal Services Act. It is therefore the responsibility of the customer to inform himself about the competition, consumer or labeling law provisions applicable to his store / website and, if necessary, to have the store / website checked by a specialized lawyer.
- After completion of the websites and/or individual parts thereof, P&S Digitale Kommunikation GmbH may offer the customer maintenance and care services in relation to the websites. However, P&S Digitale Kommunikation GmbH shall not be obliged to make such an offer, nor shall the customer be obliged to make use of the further services offered by P&S Digitale Kommunikation GmbH. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and care services are agreed between the parties, the customer alone shall be responsible for the technical maintenance and up-to-dateness of the websites after acceptance. P&S Digitale Kommunikation GmbH shall not be liable to the customer for any security gaps that are exploited by third parties for illegal purposes through the use of outdated software (hacking).
3. maintenance and support of websites / stores
- After completion of the websites and/or individual parts thereof, P&S Digitale Kommunikation GmbH may offer the customer maintenance and support services in relation to the websites (hereinafter "maintenance contracts"). P&S Digitale Kommunikation GmbH may also offer the maintenance of third-party websites. However, P&S Digitale Kommunikation GmbH shall not be obliged to make such an offer, nor shall the customer be obliged to make use of the further services offered by P&S Digitale Kommunikation GmbH. Corresponding agreements are exclusively the subject of individual agreements.
- The content of the maintenance contracts is the elimination of malfunctions and the updating of the website for common web browsers in their current version as required. Further services, such as regular maintenance, may be agreed in individual contracts.
- A prerequisite for maintenance is that the content to be maintained is compatible with the systems of P&S Digitale Kommunikation GmbH. Compatibility may be impaired in particular by outdated components of the content to be maintained or by unauthorized changes on the part of the customer. If compatibility is not guaranteed, the customer must establish this independently (e.g. through appropriate updates) or commission P&S Digitale Kommunikation GmbH separately to establish compatibility.
- P&S Digitale Kommunikation GmbH shall not be liable for malfunctions and incompatibilities caused by unauthorized changes made by the customer or due to other errors that are not the responsibility of P&S Digitale Kommunikation GmbH; the provisions under "Liability/exemption" shall remain unaffected by this.
- Unless otherwise agreed, maintenance shall only include the technical updating of the website, but not the updating of its content. In particular, P&S Digitale Kommunikation GmbH is not responsible for updating the legal notice or the privacy policy.
4. domain registration
- P&S Digitale Kommunikation GmbH offers the customer domain registration services. The specific scope of services (domain registration, storage space, certificates, etc.) is the subject of individual agreements between the parties.
- The contractual relationship required to register the respective domain is established directly between the customer and the respective domain registry or registrar. P&S Digitale Kommunikation GmbH acts merely as an intermediary in the relationship between the customer and the registry, without having any influence of its own on the allocation of the domain.
- The customer bears full responsibility for ensuring that the domain requested by him does not infringe any third-party rights. A check of the domain for its legal admissibility is not owed.
- For the registration of domains, the respective terms and conditions of the individual registries also apply. P&S Digitale Kommunikation GmbH will inform the customer of any special features in the event of an intended registration.
5. web hosting
- P&S Digitale Kommunikation GmbH also offers hosting services to the customer. P&S Digitale Kommunikation GmbH may use the servers of third-party companies to fulfill its services. P&S Digitale Kommunikation GmbH shall inform the customer of any third-party companies used prior to the conclusion of the contract. The specific scope of services (domain management, storage space, e-mail hosting, certificates, etc.) shall be the subject of individual agreements between the parties.
- Unless otherwise agreed, P&S Digitale Kommunikation GmbH shall be responsible for the administration and management of the data if web hosting is commissioned. The customer shall not be granted access to the administration backend of the hosting system, unless the parties have agreed otherwise.
- The availability of the servers used by P&S Digitale Kommunikation GmbH for hosting purposes is at least 99% on an annual average. This does not include times during which the servers are unavailable due to events beyond the control of P&S Digitale Kommunikation GmbH (force majeure, acts of third parties, technical problems beyond the control of P&S Digitale Kommunikation GmbH, etc.). The provisions under "Liability/exemption" remain unaffected.
- Unless otherwise agreed, the customer is not entitled to the allocation of a fixed IP address for his Internet presence. We reserve the right to make technical or legal changes at any time.
- The customer is obliged to keep his passwords and other access data - insofar as such have been made available to him by P&S Digitale Kommunikation GmbH - secret and not to pass them on to third parties. The customer shall be responsible for any misuse by third parties, unless P&S Digitale Kommunikation GmbH is responsible for this.
- The Customer shall be responsible for making regular backups of its hosted data. If the Customer is not in a position to do so, he must commission P&S Digitale Kommunikation GmbH or other suitable third parties with the backup. The customer shall be liable for any loss of data resulting from a lack of data backup.
- No content may be stored on the storage space provided that is offensive, extremist, glorifies or trivializes violence, incites hatred, is right-wing extremist, discriminatory, anti-constitutional, harmful to minors or pornographic, violates the rights of third parties (e.g. trademark and copyright law) or other applicable law or morality (in particular criminal law and administrative offences) or contains malicious code or malware. If P&S Digitale Kommunikation GmbH becomes aware that illegal content within the meaning of this paragraph could be stored on the storage space provided in the context of hosting, it shall proceed as follows:
- P&S Digitale Kommunikation GmbH will immediately conduct a cursory examination of the content in question. If the cursory examination reveals that illegal content cannot be ruled out, P&S Digitale Kommunikation GmbH may, at its own discretion, temporarily block it or take other measures appropriate to the risk situation, up to and including deletion of the content. P&S Digitale Kommunikation GmbH shall request the customer to make a statement and shall grant the customer a reasonable period of time to do so.
- As soon as the customer's statement has been received or if the customer has not submitted a statement within the period granted, P&S Digitale Kommunikation GmbH will make a final decision on how to deal with the content concerned. In particular, the following measures may be considered: warning; indefinite blocking or permanent deletion of the content; temporary blocking of the customer (alternatively, partial blocking may also take place); ordinary or extraordinary termination of the contract; criminal complaint or complaint to the public order office (if a criminal offense is involved that may pose a danger to life, limb or safety of a person, P&S Digitale Kommunikation GmbH is legally obliged to report it). P&S Digitale Kommunikation GmbH will only take the respective measure after a thorough and objective assessment, taking into account in particular the severity of the violation, the number of total violations, potential effects on the services provided by P&S Digitale Kommunikation GmbH, its customers and other third parties, the overall behavior (e.g. ability to understand the violation), the fault (intent, negligence), the motives of the violation (if recognizable) and the customer's admission (if any).
- P&S Digitale Kommunikation GmbH will inform the customer about the evaluation, its result and the measures decided upon, provided there are no legal reasons to the contrary.
- P&S Digitale Kommunikation GmbH will not proactively check the stored content and - unless otherwise stated - will not carry out any automated checks of the stored content. However, it will take action as soon as it recognizes such content itself or is informed of such content by third parties. If the customer becomes aware of such content, he can of course contact P&S Digitale Kommunikation GmbH at any time using the contact details in the legal notice.
6. procurement of hosting services
- P&S Digitale Kommunikation GmbH arranges hosting services from third-party providers for the customer. Unless otherwise agreed, P&S Digitale Kommunikation GmbH shall act solely as an intermediary and shall not itself become a party to the hosting contract. The customer's contractual partner is the hoster.
- P&S Digitale Kommunikation GmbH is only responsible for forwarding the required data to the hoster. However, the responsibility for the technical functionality of the hosting systems lies solely with the hoster; the provisions under "Liability/exemption" remain unaffected.
7. implementations of CRM/ERP systems
- P&S Digitale Kommunikation GmbH offers the customer the implementation of CRM/ERP systems and similar in the customer's IT infrastructure and their configuration. For this purpose, P&S Digitale Kommunikation GmbH first discusses the customer's requirements with the customer and, on this basis, prepares an offer in which the desired functions, the price and other service components are described. A contract is concluded when the customer accepts the offer.
- If the acquisition of one or more licenses is required for the use of the aforementioned systems, the customer shall be responsible for their procurement. Alternatively, the customer may commission P&S Digitale Kommunikation GmbH with the procurement of the licenses, whereby this shall be done in the name and for the account of the customer.
- P&S Digitale Kommunikation GmbH is responsible for the technically flawless implementation / configuration of the aforementioned systems, in accordance with the contract between the parties, these GTC and in consideration of the licensors' terms of use.
- The CRM provider is selected by the customer. P&S Digitale Kommunikation GmbH can advise on the selection.
- If the conclusion of a contract for order processing is required, both parties undertake to conclude an AV contract to be provided by P&S Digitale Kommunikation GmbH.
- The Customer shall be responsible for making regular backups of its hosted data. If the Customer is not in a position to do so, he must commission P&S Digitale Kommunikation GmbH or other suitable third parties with the backup. The customer shall be liable for any loss of data resulting from a lack of data backup.
Part 3 - Content creation and design
1. creation of imprint and privacy policy
- If agreed, P&S Digitale Kommunikation GmbH will create the privacy policy and the legal notice for the customer's website. Generators are generally used for this purpose. P&S Digitale Kommunikation GmbH is only responsible for the creation of the texts with the generators; the customer is responsible for the legal and content review - if necessary with the help of legal advice; the provisions under the heading "Liability/exemption" remain unaffected by this.
- The Customer is obliged to provide P&S Digitale Kommunikation GmbH with all information necessary for the creation of the legal texts in a timely, correct and complete manner. The Customer shall independently inform himself and P&S Digitale Kommunikation GmbH of any special information obligations within the scope of the imprint (e.g. professional liability insurance, professions requiring a license, etc.) and the data protection declaration. In this context, it is pointed out once again that P&S Digitale Kommunikation GmbH is not legally entitled to provide legal advice to the Customer.
- The customer must inform P&S Digitale Kommunikation GmbH independently and immediately of any changes affecting the information in the legal notice or the privacy policy.
- Unless otherwise agreed in the individual contract, the customer must separately commission P&S Digitale Kommunikation GmbH to update the imprint or the data protection declaration after completion and acceptance of the website.
2. cookie consent tool
- P&S Digitale Kommunikation GmbH does not create and/or program any consent systems ("consent tools") required for the use of cookies or marketing and tracking tools. P&S Digitale Kommunikation GmbH can advise the customer on the selection of a suitable consent tool on request, but assumes no liability for their legal and technical correctness and functionality.
- However, P&S Digitale Kommunikation GmbH only advises the customer on the technical suitability of the cookie consent tool for the customer's website, but not on its graphic and content design. If the customer wishes to use a cookie consent tool, P&S Digitale Kommunikation GmbH is only responsible for the technical integration of the cookie consent tool; the customer is responsible for the legal and content-related review of the cookie consent tool. Unless otherwise agreed, the customer is the sole contractual partner of the respective consent tool provider. The provisions under "Liability/exemption" remain unaffected.
3. video and photography
- P&S Digitale Kommunikation GmbH creates professional videos and photographs for its customers. The services agreed in detail result from the individual contract concluded between P&S Digitale Kommunikation GmbH and the customer.
- The customer first submits an inquiry to P&S Digitale Kommunikation GmbH with as precise a description as possible of the services desired. This inquiry constitutes an invitation to submit an offer by P&S Digitale Kommunikation GmbH. P&S Digitale Kommunikation GmbH shall examine the Customer's ideas described in the inquiry to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency and shall prepare an offer on the basis of the wishes arising from the Customer's inquiry. A contract between P&S Digitale Kommunikation GmbH and the customer shall only come into existence upon acceptance of the offer by the customer.
- The customer's specifications shall be taken into account to the best of our knowledge and belief. The contracting parties recognize that the creation of videos and photographs is a creative service that requires a high degree of artistic freedom. P&S Digitale Kommunikation GmbH therefore only owes the creation of a work that corresponds to the customer's wishes according to its own experience and assessment. Complaints regarding the artistic design are generally excluded.
- Unless otherwise agreed, the customer shall have the right to two correction loops with regard to the image processing (e.g. using filters and effects) of the photographs created; however, a new creation of the photographs is excluded. Complaints regarding the artistic design are generally excluded. If the customer wishes to make further changes, he shall bear the additional costs.
- If the customer provides persons for the creation of videos or photographs (e.g. its employees or professional models), it is solely responsible for ensuring that the persons concerned have consented to the use of the recordings. In particular, the customer is responsible for concluding suitable model release contracts and obtaining employee consent that complies with data protection regulations.
- As soon as the agreed object of performance has been completed, P&S Digitale Kommunikation GmbH shall request the customer to accept the work.
- Unless otherwise contractually agreed and not otherwise to be expected from the purpose of the contract, the customer shall only receive photographs that have been fully processed for the respective purpose. The customer shall not be entitled to receive the raw data or editable files (RAW files, open files from image programs, etc.).
- If P&S Digitale Kommunikation GmbH cannot or does not wish to perform the services mentioned here itself, P&S Digitale Kommunikation GmbH may arrange suitable service providers for the customer (agency business). If the parties agree on an agency transaction, P&S Digitale Kommunikation GmbH shall conclude the contract for the creation of the videos/photographs with the third-party service provider in the name and for the account of the customer or shall broker such a contract. P&S Digitale Kommunikation GmbH acts as a pure intermediary vis-à-vis the third-party service provider. The contractual relationship arises solely between the customer and the third-party service provider. P&S Digitale Kommunikation GmbH is not a party to this contract. P&S Digitale Kommunikation GmbH shall inform the customer of all essential steps and shall coordinate with the customer regarding the details of the content and conclusion of the contract (in particular the type and prices) and shall be bound by the customer's instructions. The respective price and/or terms and conditions of the third-party service provider shall apply. The customer shall pay for the services directly to the third-party service provider. Acceptance of the services shall be made vis-à-vis the third-party service provider. It is the customer's responsibility to check that the completed video/photographs are free of defects. P&S Digitale Kommunikation GmbH shall not be liable for the contractual production of the services by the third-party service provider. In the event of a dispute, P&S Digitale Kommunikation GmbH shall provide the customer with all necessary information - to the extent permitted by law. P&S Digitale Kommunikation GmbH shall not be liable for any further support in the assertion of warranty claims for defects or other claims. The provisions under "Liability/exemption" remain unaffected by this.
4. creation of texts / copywriting
- P&S Digitale Kommunikation GmbH creates texts for the customer (e.g. press releases, articles for websites, advertising copy, etc.). The content of these texts is defined in individual contracts.
- As soon as the agreed texts have been completed, P&S Digitale Kommunikation GmbH shall send them to the customer for approval and acceptance. Unless otherwise agreed, the customer shall be entitled to two correction loops. Complaints regarding the stylistic design or the integration of new information into the text are generally excluded after the second revision loop. If the customer wishes to make further changes, he shall bear the additional costs.
- If P&S Digitale Kommunikation GmbH has been commissioned with the publication, the texts will only be published after approval by the customer, unless otherwise agreed; the approval also constitutes acceptance of the texts. In the case of press releases, a distribution date on which they are to be transmitted to the media shall also be specified after approval has been given. If the customer is to publish or publicize the texts himself, he must approve the texts in advance. If the customer publishes the texts prior to acceptance, publication shall be deemed acceptance.
- P&S Digitale Kommunikation GmbH shall only be liable for errors discovered after release/acceptance in accordance with the provisions under the heading "Liability/exemption".
5. design and conception of graphics and logos (designs)
- P&S Digitale Kommunikation GmbH shall undertake the conception and design of graphics and/or logos (hereinafter referred to as "designs") by agreement with the customer.
- For this purpose, the customer first submits an inquiry to P&S Digitale Kommunikation GmbH with as precise a description as possible of the designs desired. This request constitutes an invitation to submit an offer by P&S Digitale Kommunikation GmbH. P&S Digitale Kommunikation GmbH will examine the customer's ideas described in the inquiry to the best of its knowledge and belief for completeness, suitability (with the exception of legal suitability, in particular with regard to the rights of third parties), clarity, feasibility and consistency and will prepare an offer on the basis of the wishes arising from the customer's inquiry. A contract between P&S Digitale Kommunikation GmbH and the customer shall only come into existence upon acceptance of the offer by the customer.
- Unless otherwise agreed, the customer has the right to two correction loops concerning the individual designs. After these correction loops have been carried out, requests for adjustments and complaints (in particular with regard to the artistic design) will no longer be considered. If the customer wishes to make further changes after the agreed correction loops have been carried out, P&S Digitale Kommunikation GmbH can provide these to the customer for an additional fee to be agreed.
- As soon as the agreed design has been completed, P&S Digitale Kommunikation GmbH will ask the customer to accept the work. The designs will be sent to the customer in a standard file format.
- P&S Digitale Kommunikation GmbH expressly does not check the final designs for legal admissibility (in particular trademark and/or competition law) or for infringement of other trademark and/or property rights (e.g. trademarks, registered designs, patents, etc.) or for the registrability of the designs, e.g. in official registers.
- P&S Digitale Kommunikation GmbH shall grant the customer the rights of use to the designs required for the respective purpose. Unless otherwise agreed, an exclusive right of use shall be granted for the creation of logos, unlimited in terms of time, place and content; however, individual graphic elements of the logos may be used for the creation of other works as long as there is no risk of confusion with the logo created. Subject to deviating individual agreements, a simple right of use is granted for all other designs. Any transfer of the rights of use by the customer to third parties requires an individual contractual agreement with P&S Digitale Kommunikation GmbH. The designs presented within the correction loop may not be used, reproduced or passed on to third parties by the customer, either in the original or modified form, without the express consent of P&S Digitale Kommunikation GmbH.
- The rights of use shall not pass to the customer until the remuneration has been paid in full.
Part 4 - Marketing
1. SEO marketing
- P&S Digitale Kommunikation GmbH offers the customer services in the field of SEO marketing. As part of the provision of services, P&S Digitale Kommunikation GmbH shall only owe the implementation of measures which, in P&S Digitale Kommunikation GmbH's own experience, can positively influence the search engine ranking or which are expressly ordered by the customer. This is a service within the meaning of §§ 611 ff. BGB (GERMAN CIVIL CODE). However, a specific result (e.g. a specific ranking in the search engine hit list) is only owed as part of the SEO services if this has been expressly guaranteed.
2. SEA campaigns
- P&S Digitale Kommunikation GmbH offers the customer services in the area of SEA campaigns. As part of the provision of services, P&S Digitale Kommunikation GmbH shall only be responsible for submitting proposals regarding the most effective keywords, suitable target groups, advertising environments and campaign types as well as general strategies and, after approval by the customer, for implementing the measures (e.g. placement of advertisements). These are services within the meaning of §§ 611 ff. BGB (GERMAN CIVIL CODE). A specific result (e.g. sales figures) is not owed within the scope of SEA services, unless this has been expressly guaranteed. P&S Digitale Kommunikation GmbH is not obliged to check the legality of keywords. P&S Digitale Kommunikation GmbH shall make suggestions to the customer regarding the booking of keywords. The legal examination, in particular with regard to the trademark rights of third parties and approval of the keywords, is the responsibility of the customer before the campaign is carried out. The fee agreed for the services described above does not include the costs for the placement of chargeable advertisements; unless otherwise agreed, these costs shall be borne by the customer.
3. e-mail marketing
- P&S Digitale Kommunikation GmbH offers the customer the planning and implementation of e-mail marketing campaigns. The specific subject matter of the service is defined in an individual contract. In order to carry out the e-mail campaigns, P&S Digitale Kommunikation GmbH requires access to the customer's newsletter lists and, if applicable, to the customer's newsletter service provider. When designing email marketing campaigns, P&S Digitale Kommunikation GmbH shall only be responsible for implementing measures which, in P&S Digitale Kommunikation GmbH's own experience, promote the desired result (e.g. sale of products, generation of leads, etc.). However, a specific result (e.g. the actual generation of a certain number of leads) is only owed if this has been expressly guaranteed.
- P&S Digitale Kommunikation GmbH shall not be liable for errors that occur within the area of responsibility of the e-mail service provider or within the customer's sphere of control. In particular, P&S Digitale Kommunikation GmbH shall not be liable for warnings or fines resulting from the sending of unwanted advertising emails (e.g. when emails are sent to recipients who have not given their consent to receive advertising emails). The customer is responsible for the correct maintenance of the newsletter lists - subject to deviating individual agreements. The provisions under the heading "Liability / Indemnification" remain unaffected by this.
4. social media marketing
- P&S Digitale Kommunikation GmbH provides its customers with technical support in the creation and/or maintenance of social media presences. If the customer makes use of these services, P&S Digitale Kommunikation GmbH shall only be responsible for the technical creation of the social media presences and/or the technical maintenance of the content to be provided by the customer.
- In addition to the creation of social media presences, posting in the name of the customer and under their name (so-called ghost posting) can also be agreed. P&S Digitale Kommunikation GmbH is free to determine the content, provided there are no specifications from the customer. There is no obligation to respond to or monitor posts by third parties. This is the responsibility of the customer as the operator.
- If the customer provides content (images, texts, videos, etc.), P&S Digitale Kommunikation GmbH will not check this content for content or legal accuracy. In this respect, it is expressly pointed out that P&S Digitale Kommunikation GmbH is not authorized to provide legal advice to the customer. Should P&S Digitale Kommunikation GmbH nevertheless determine in individual cases that the content provided by the customer violates applicable law, P&S Digitale Kommunikation GmbH may refuse to post such content.
- All content must be approved by the customer and will then be uploaded to the respective websites by P&S Digitale Kommunikation GmbH, whereby P&S Digitale Kommunikation GmbH is only responsible for the technical uploading of the content and is only responsible for this; the provisions under "Liability/Release" remain unaffected.
- The customer alone is the service provider and responsible party in terms of data protection. P&S Digitale Kommunikation GmbH shall only act as the customer's processor.
5. placement of advertisements
- P&S Digitale Kommunikation GmbH supports the customer with ad placements in social media portals, search engines and other media ("ads").
- P&S Digitale Kommunikation GmbH advises the customer on how to design its advertisements so that they are as visible as possible. P&S Digitale Kommunikation GmbH also creates the advertisements for the client by agreement. Specific results (e.g. sales figures, leads) are not owed.
- P&S Digitale Kommunikation GmbH also supports the customer in the conceptualization of the texts and images for the advertisements. However, the selection of content for the advertisements (images, texts, videos, imprints, etc.) is the sole responsibility of the customer. P&S Digitale Kommunikation GmbH will not check this content or the advertisements as a whole for their content or legal accuracy. In this respect, it is expressly pointed out that P&S Digitale Kommunikation GmbH is not authorized to provide the customer with legal advice. Should P&S Digitale Kommunikation GmbH nevertheless determine in individual cases that the content provided by the customer and/or the advertisements violate applicable law, P&S Digitale Kommunikation GmbH may refuse to post such content or create the advertisements.
- All content must be approved by the customer and will then be uploaded to the respective advertising channels by P&S Digitale Kommunikation GmbH, whereby P&S Digitale Kommunikation GmbH is only responsible for the technical uploading of the content and is only responsible for this; the provisions under "Liability/exemption" remain unaffected.
- The fee agreed for the services described above does not include the costs for the placement of chargeable advertisements; unless otherwise agreed, these costs shall be borne by the customer.
- The customer alone is the service provider and responsible party in terms of data protection. P&S Digitale Kommunikation GmbH shall only act as the customer's processor.
Part 5 - Consulting / Further training
1. general consulting services
- P&S Digitale Kommunikation GmbH offers the customer general consulting services in various areas. As part of the provision of services, P&S Digitale Kommunikation GmbH shall only provide advice to the best of its knowledge and belief and - where relevant - on the basis of current knowledge or the state of the art. The consulting services are a service within the meaning of §§ 611 ff. BGB (GERMAN CIVIL CODE). A specific result is only owed if it has been expressly guaranteed. Advice based on or taking into account specific standards (e.g. DIN standards or professional regulations) is also only owed if this has been expressly agreed.
2. workshops and seminars (with presence)
- P&S Digitale Kommunikation GmbH offers its customers various online and face-to-face events in the form of workshops and/or seminars on predetermined dates. The start, end, content, seminar or workshop leader and venue (in the case of face-to-face events) can be found in the respective offer and will be communicated to the customer before the contract is concluded.
- Customer and participant may or may not be the same person. Participants are responsible for their own travel to and from face-to-face events.
- The events are carried out to the best of our knowledge and belief. P&S Digitale Kommunikation GmbH will always select the seminar or workshop leaders conscientiously. P&S Digitale Kommunikation GmbH is entitled to replace the seminar or workshop leader at any time at its own discretion - even at short notice - with another suitable seminar or workshop leader, provided this is reasonable for the participant / contractual partner. If the change of seminar or workshop leader is unreasonable for the participant / contractual partner, the participant / contractual partner may withdraw from the contract.
- A certain success that goes beyond the execution of a conscientiously prepared and, at the discretion of the organizer, sensibly conceived event is not owed.
- In exceptional situations (e.g. in the event of a pandemic), the organizer is also entitled to hold a live event online. In this case, the participation fee will only be refunded if the participant cannot reasonably be expected to participate in the online event.
3. workshops and seminars (without presence)
- P&S Digitale Kommunikation GmbH offers its customers various online events in the form of workshops and/or seminars on predetermined dates. The start, end, content, form, seminar or workshop leader can be found in the respective offer and will be communicated to the customer before the contract is concluded.
- Customer and participant may or may not be the same person.
- The events are carried out to the best of our knowledge and belief. P&S Digitale Kommunikation GmbH will always select the seminar or workshop leaders conscientiously. P&S Digitale Kommunikation GmbH is entitled to replace the seminar or workshop leader at any time at its own discretion - even at short notice - with another suitable seminar or workshop leader, provided this is reasonable for the participant / contractual partner. If the change of seminar or workshop leader is unreasonable for the participant / contractual partner, the participant / contractual partner may withdraw from the contract.
- A certain success that goes beyond the execution of a conscientiously prepared and, at the discretion of the organizer, sensibly conceived event is not owed.
4. training courses
- P&S Digitale Kommunikation GmbH offers its customers various online events in the form of training courses and/or seminars ("training courses") on predetermined dates. The start, end, content and form of the training courses can be found in the respective offer and will be communicated to the customer before the contract is concluded.
- Customer and participant may or may not be the same person.
- The events are carried out to the best of our knowledge and belief. P&S Digitale Kommunikation GmbH shall always select the trainers conscientiously. P&S Digitale Kommunikation GmbH shall be entitled to replace the trainer at any time at its own discretion - even at short notice - with another suitable trainer, provided this is reasonable for the participant / contractual partner. If the change of trainer is unreasonable for the participant / contractual partner, the participant / contractual partner may withdraw from the contract.
- A certain success that goes beyond the execution of a conscientiously prepared and, at the discretion of the organizer, sensibly conceived event is not owed.
Part 6 - Other provisions
1. prices and remuneration
- The remuneration for the services of P&S Digitale Kommunikation GmbH is the subject of an individual contractual agreement between the parties and is generally based on the offer.
2. acceptance
- If a work performance has been agreed, P&S Digitale Kommunikation GmbH may demand that acceptance be made in writing; written acceptance shall only be owed if P&S Digitale Kommunikation GmbH requests the customer to do so. The acceptance provisions of the German Civil Code shall otherwise remain unaffected. The acceptance period within the meaning of Section 640 (2) sentence 1 BGB shall be set at 2 weeks from notification of completion of the work, unless a different acceptance period is required in individual cases due to special circumstances, in which case P&S Digitale Kommunikation GmbH shall notify the customer separately. If the customer does not respond within this period or does not refuse acceptance due to a defect, the work shall be deemed to have been accepted.
3. warranty for defects
- An insignificant defect shall not justify any claims for defects. P&S Digitale Kommunikation GmbH shall be entitled to choose the type of subsequent performance. The limitation period for defects and other claims shall be one (1) year; this shortening of the limitation period shall not apply to claims resulting from intent, gross negligence or injury to life, limb or health by P&S Digitale Kommunikation GmbH. The limitation period shall not recommence if subsequent performance is effected within the scope of liability for defects. Otherwise, the statutory warranty for defects shall remain unaffected.
4. contract term for continuing obligations
- Subject to deviating provisions in and outside these GTC, continuing obligations have a minimum term of 12 months. The notice period is 3 months. If the contract is not terminated in due time at the end of the term, it is automatically extended by a further 12 months. The right to extraordinary termination without notice for good cause remains unaffected.
5. granting of rights, self-promotion and right of mention
- Subject to other provisions in these terms and conditions, P&S Digitale Kommunikation GmbH shall grant the customer - after full payment of the order - a simple, non-transferable right of use to the commissioned work results. Further rights may be agreed in individual contracts.
- Unless otherwise agreed, the customer expressly grants P&S Digitale Kommunikation GmbH permission to present the project to the public in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, P&S Digitale Kommunikation GmbH shall be entitled to advertise the business relationship with the Customer and to refer to itself as the author on all advertising materials created and in all advertising measures, without the Customer being entitled to any remuneration for this.
- Furthermore, P&S Digitale Kommunikation GmbH is entitled to place its own name, with a link, in an appropriate manner in the footer and in the imprint of the website(s) created by P&S Digitale Kommunikation GmbH, without the customer being entitled to any remuneration for this.
- Unless otherwise agreed in an individual contract, P&S Digitale Kommunikation GmbH may demand that a suitable copyright notice be placed in an appropriate position on works created by it.
6. confidentiality
- P&S Digitale Kommunikation GmbH shall treat all business transactions of which it becomes aware, in particular, but not exclusively, print documents, layouts, storyboards, figures, drawings, tapes, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and such other documents containing films and/or radio plays and/or other copyrighted materials of the customer or its affiliated companies shall be treated as strictly confidential. P&S Digitale Kommunikation GmbH undertakes to impose this confidentiality obligation on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, sound studios, etc.) who have access to the aforementioned business transactions. The confidentiality obligation shall apply indefinitely beyond the term of this contract.
7 Liability/exemption
- P&S Digitale Kommunikation GmbH shall be liable without limitation for any legal reason in the event of intent or gross negligence, in the event of intentional or negligent injury to life, limb or health, on the basis of a guarantee promise, unless otherwise regulated in this respect, or on the basis of mandatory liability, such as under the Product Liability Act. If P&S Digitale Kommunikation GmbH negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical of the contract, unless unlimited liability applies in accordance with the preceding sentence. Material contractual obligations are obligations which the contract imposes on P&S Digitale Kommunikation GmbH according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely. Any further liability of P&S Digitale Kommunikation GmbH is excluded. The above liability provisions shall also apply with regard to the liability of P&S Digitale Kommunikation GmbH for its vicarious agents and legal representatives.
- The customer shall indemnify P&S Digitale Kommunikation GmbH against any third-party claims asserted against P&S Digitale Kommunikation GmbH due to violations of these GTC or applicable law by the customer.
8. final provisions
- The contracts concluded between P&S Digitale Kommunikation GmbH and the customer are subject to the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
- If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the parties agree that the registered office of P&S Digitale Kommunikation GmbH shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction shall remain unaffected by this.
- P&S Digitale Kommunikation GmbH is entitled to amend these GTC for objectively justified reasons (e.g. changes in case law, the legal situation, market conditions or business or corporate strategy) and subject to a reasonable period of notice. Existing customers will be notified of this by e-mail at least two weeks before the change comes into effect. If the existing customer does not object within the deadline set in the notification of change, their consent to the change shall be deemed to have been given. If he objects, the changes shall not enter into force; in this case, P&S Digitale Kommunikation GmbH shall be entitled to terminate the contract extraordinarily at the time the change enters into force. The notification of the intended amendment of these GTC shall refer to the deadline and the consequences of the objection or its absence.
Status: May 2024