Valid since 1st December 2008
- Validity area
- Offers, conclusion of contract and shape
- Cooperation duties
- Service changes
- Release/ acceptance
- External services
- Conditions of payment, right of retention, charging
- Claims for defects
- Third-party contents, domain names
- Title retention
- Secrecy, naming of reference
- Final provisions
1. Validity area
These general terms of business apply to the whole business connection between toFOUR GmbH, Am Bahnhof 6, 98574 Schmalkalden, following named seller, and the client as far as the client is entrepreneur as defined by § 14 of the Civil Code or a juristic person of the public law.
The seller doesn't recognize general terms of business which stand in the way of these terms of business or general terms of business which deviate from these terms of business, unless the seller expressly consents the validity of the general terms of business. That will also be effective if the making or the acceptance of an offer of the client happens under the hint of the priority validity of the own general terms of business.
These terms of business also apply in the version - which is always currently - to all future business with the client. The version - which is always currently - of the terms of business is always on call in the net under https://www.tofour.net/terms.html.
The seller expressly reserves to change these general terms of business any time and without naming any reasons. The changed general terms of business will be transmitted per email to the client two weeks before its coming into force. If the client doesn't contradict the changed general terms of business within two weeks from access of the changed general terms of business, the changed general terms of business will be regarded as accepted from the client. The seller commits himself in the email - which contains the changed general terms of business - to point separately and plainly emphasized the meaning of time limit of contradiction and the consequences of a not happened contradiction out of the client.
2. Offers, conclusion of contract and shape
The contract is signed through the confirmation of the offer of the client or acknowledgement of an order of the seller.
Orders which are orally, written, via telex, or electronically given to the seller will only then be regarded as accepted if the seller written, via telex or electronically confirms them.
Offers of the seller are without engagement, so far as not stated in another way. The seller keeps engaged to fixed offers two weeks for want of other fixings, the moment of making is decisive.
Technical and creative deviations from descriptions and makings in brochures, catalogues and written documents because of further technical developments are reserved. Claims opposite the seller can't be enforced out of this.
Property, rights to use for drawings, drafts, layouts, software and other materials and documents which are handed over within the scope of offers and negotiations of a contract aren't granted to the client. The transfer to third persons requires an express agreement of the seller.
The contracting parties name each other persons to turn to who bindingly coordinate all questions concerning the realization of the contract. Substitutes have to be named in case of absence through holiday, illness etc. The parties immediately have to tell each other changes in the named persons. The persons to turn to named before are regarded as entitled to make and accept explanations within the scope of their previous power of representation until the access of such a message.
The persons to turn to come to an agreement with each other about progresses and obstacles during the realization of the contract at regular intervals if concretely required.
The seller prepares a confirmation about the exchange of information and the arrangements of the persons to turn to. This confirmation has to be transmitted to the client. The confirmation will be binding upon the arrangements of the parties if the client doesn't immediately contradict after receiving.
The details of the services - which the seller has produced for the client - result from the description of the services.
The seller isn't obliged to the editing of intermediate data, drafts, layouts, source code etc. - which lead to the contractual service - without separate agreement.
The seller is entitled to partial services as far as these services are reasonable for the client.
The ability of protection and registration by patent, pattern, copyright and trademark law isn't owed the ideas, suggestions, proposals, rough drafts, drafts and other services which are delivered within the scope of the contract without separate agreement.
5. Cooperation duties
The client supports the seller with the fulfilment of his services which are contractual owed. The punctual provision of information, materials, data and hard and software especially belong to this as far as the cooperation duties of the client require this.
If the client recognizes that own information, requests or contents are faulty, incomplete, not clearly or not practicable, he will immediately have to tell the seller this and the recognizable consequences.
If the seller should prepare data for the publication or continuation of the order or service, the client will receive overviews for control per email or web preview before the publication. The client immediately has to report complaints about the data - which are prepared from the seller - to the seller in a written way in case of complaints.
The delivery of data, patterns and manuscripts which are necessary for working or carrying out of the order to the seller can happen electronically, by post or by courier. The client has to bear the costs and dangers for this.
The obligation of data retention - which are handed over to the seller - ends three months after the end of the order/ service relationship.
Cooperation duties of the client which are owed within the scope of the contract take place without special reimbursement, unless something else is expressly arranged.
The seller will support the client during the preparation of the requirement specification. The requirement specification is the basis of the services which are owed from the seller. Services or functionalities which are described in the requirement specification aren't owed from the seller. The client will examine the equirement specification at his own risk and written confirm the seller the services which are described in the requirement specification or release the requirement specification. Changes after the release of the requirement specification through the client describe service changes according to point six.
The client will immediately instruct the seller about troubles if there are some troubles during the use of the server. The client undertakes to keep the access data to the administration of the server secret opposite unauthorized third persons. Especially user name and password have to be kept that way that the access to these data is impossible for unauthorized third persons to exclude an abuse of the access through third persons. The client undertakes to inform immediately the seller as soon as he gains knowledge that unauthorized third persons know the password.
If the seller places memory space at the client's disposal, the client will assure that he won't deposit any contents on the contractual memory space and in the net those providing, publication or use offend against criminal law, copyrights, trademark and other marking laws or personality laws. A client's offence against the named obligations entitles the seller to an extraordinary notice.
If the client offends against this duty, he will be obliged to the omission of the further offence, to the substitute of the seller's damage which results from it or will still result, as well as to the seller's clear and exemption of claims for damages reimbursement of expenses of third persons which were caused through the offence. The obligation of exemption also includes the obligation to totally exempt the seller from costs for legal defense(costs of court and lawyer etc.). Other claims of the seller, especially for the closing of the contents and for the extraordinary notice remain untouched.
6. Service changes
If the client wishes a change of the contractual defined extent of the services, he will written tell the seller this. The seller will examine the client's desire of change and its consequences on the existent agreement. The examination has to be reimbursed with the usual hourly rate of the seller.
The seller tells the client the result of the examination. In this case, he will either submit a detailed proposal for the conversion of the desire of change or he will explain why the change of desire isn't realizable.
If the change is feasible after the result of the examination, the contracting parties will arrange concerning the content of the proposal for the conversion of the desire of change. If an agreement comes about, the contract will as far as that goes be changed. If an agreement doesn't come about, the original extent of services will remain.
Arranged dates will be postponed, if and as far as they are affected by the change procedure in consideration of the duration of the examination, of the vote on the proposal of change and if necessary of the desires of change which have to be carried out plus a suitable deadline of start. The seller will tell the client the new dates.
If the seller wishes a change of the contractual defined extent of the services, he will written tell this the client and he will submit a proposal of conversion. The further procedure goes by this point. The seller bears the expenditures which are connected with the development of the proposal of change.
7. Release/ acceptance
The client is obliged to the release of drafts and intermediate data after the seller's request as far as they can meaningfully be judged.
Desires of change after the release describe a change of services (see point 6).
The dates of completion and/ or delivery - which are named in correspondence, offers and contracts - aren't binding, except their obligingness was written arranged in special case.
The seller doesn't have to stand in for delays of services because of circumstances in the client's responsibility (e.g. not punctual supply of cooperation duties) and act of God (e.g. Strike, lock-out, general troubles of the telecommunication). They entitle the seller to postpone the supply of services concerned for a period of the obstruction plus a suitable start time. The seller will announce the client service delays because of act of God.
If the assertion of the client's rights requires the compression set of an appropriate additional respite, this will amount to at least two weeks.
The seller grants the client without another agreement postponed caused on the total payment of the arranged reimbursement for the adduced services the right to use the services for the purposes - which underlie the contract - in the contractual arranged extent. The use is limited to a simple, not exclusive and not transferable right of use and locally to the area of Germany without another agreement.
If the client wants to use works which are carried out by the seller totally or partly more than the original arranged purpose or extent, it will need a separated fee agreement - which has to be made before for the payment of the rights of use.
A transfer of the rights of use or the grant of sub licences is only permissible if it is expressly arranged or if it results from the purpose of the contract.
The client isn't entitled to the change or working of adduced services without separated permission. Changes and workings which are necessary for reaching the purpose of the contract remain excepted of this.
The client is obliged to name the seller on the completed work and its duplication parts.
Suggestions of the client and his other cooperation have no influence on the amount of the reimbursement.
If the work is dispatched to another place than the place of service because of the client's desire, the danger of the coincidental downfall or the coincidental worsening moves on to the client with its handing over to a haulier or leader of freight, at the latest with leaving the factory or stock, regardless of whether the dispatch occurs from the place of service.
If way of dispatch and means of transport aren't individually arranged, the seller will be able to choose the particular most convenient variant for the way of dispatch and the means of transport. The seller will show consideration for the client's recognizable interests with his choice.
If the client asks for a special packaging, he will have to bear the additional costs which resulted from that.
11. External services
The seller will order external services- which are necessary for the fulfilment of the job- as a rule on behalf of the client and for the client's bill.
The client is obliged to give the seller the required authorities on demand and to put the documents of authority at the seller's disposal.
If a fixed reimbursement is arranged, the seller will be entitled to charge payments for parts of the reimbursed services which are completed or independent usable.
If the reimbursement happens after the expenditure of time, the seller's valid sentences of reimbursement will be usable for lack of other agreement.
All contractual arranged reimbursements go exclusive packaging and dispatch and plus each valid legal tax on sales.
If the reimbursement happens after the expenditure of time, expenses and expenditures of trips- which come into being for the seller within the scope of the order- will be borne by the client and will be gone on calculating at cost price.
Calculations of the seller aren't binding unless differently arranged. If it's foreseeable that the real costs exceed the seller's written estimated costs for more than fifteen (15) percent the seller will immediately call the client's attention to the higher costs.
13. Conditions of payment, right of retention, charging
All the services have to be done without discount within ten days after the date of the bill as far as nothing else has expressly been arranged. With regard to the conditions and consequences of the delay the legal rules are effective.
The charging with counter claim is only permissible as far as these demands are undisputed or absolutely stated. Moreover, the client is able to charge with a high counter claim which entered in the place of the client's entitled right of retention out of this relations of the contract.
A client's right of retention only limitedly exists to the same relations of contract and with lacks at the amount of the triple of the expenditures which are necessary for the disposal of the lacks. The client is able to exercise his right of retention because of undisputed or absolutely stated claims.
If the client gets into delay of payment, the seller will be able to lock his services.
If the client comes in default with the payment of no insignificant part of the reimbursement for two successive months or with an amount which corresponds to a monthly remuneration in a period which takes more than two months, the seller will be able to cancel the relations of the contract for important reason without keeping the deadline. An important reason for cancelling without notice for the seller will especially be if an insolvency proceedings about the client's fortune is applied for, opened or the opening is turned down for lack of degrees.
The seller is able to raise working remunerations in the amount of 10.00 euro for each unauthorized return debit note in case of delay of payment. The client is able to reserve the evidence that a damage didn't happen or is essentially lower.
14. Claims for defects
The client is entitled to supplementary service in case of lacks of delivery. The seller is obliged to a disposal of lack or a delivery/ production of a new thing free of lacks after the client's choice of supplementary service.
In case of substitution delivery the client is obliged to grant the defective thing back.
If the supplementary service fails, the client will be able to reduce the price or to withdraw from the contract without keeping the deadline after his choice. This will also be effective if the seller refuses the supplementary service or the supplementary service is unacceptable for the client.
The statute of limitation for claims for defects amounts to one year.
The agent is unlimitedly liable for damages which legal substitutes or leading employees wilfully or grossly negligently cause.
If simple assistants of the agent wilfully or grossly negligently cause damages, the agent is limitedly liable for the damages which are typical and foreseeable at conclusion of the contract. The projected limitation of liability concerns contractual and non-contractual claims. The liability after Product Liability Act remains untouched.
The duty of substitution is limited to the typical, foreseeable damage in case of slightly reckless violation of an essential duty of the contract (cardinal obligation). Apart from that, the liability for slightly reckless caused damages is excluded.
The liability for damages of persons, i.e. That for the violation of the life, the body or the health, is unlimited. The client sticks after legal rules.
The seller will only stick in case of loss of data or destruction of data if he wilfully, grossly negligently or because of an offence against an essential duty of the contract causes the destruction and if the client secures at the same time that the destroyed data can be reconstructed with fungible expenditure out of the data material which is kept in readiness in machine-readable form.
16. Third-party contents, domain names
The seller isn't responsible for materials and contents which the client prepares. The seller isn't obliged to examine materials and contents because of possible offences against the law. But he will punctually call the client's attention to recognizable important risks.
The examination of the violation of foreign mark and name rights is incumbent on the client in case of the commissioned registration of domain names- which were used as a pretext of the client- through the seller.
The client will examine advertising actions- which he instructed- at his own risks for its legal permission and secure those. A legal examination of the advertising isn't incumbent on the seller. The client also secures that all owners of email addresses- which were delivered by the client- operatively have given their agreement concerning the receipt of mailings, newsletters, etc..
The client compensates and uncomplainingly keeps the seller in case the seller is taken up because of materials, contents, addresses, email addresses, etc. which the client has prepared.
17. Title retention
All delivered physical services remain property (reservation good) of the seller until the total fulfilment of all money claims of the seller out of his business relation with the client even if the payments for the concrete service were adduced.
The client immediately has to inform the seller in case of compulsory execution measures in this thing.
The client is allowed to alienate or to process the reservation good in usual business traffic and as far as he isn't in default.
The client's demands out of the resale of the reservation good are already now as a precaution given up to the seller in total amount. The client is authorized to confiscating the given up demands as far as he won't come in default with his duties of payment opposite the seller and no comparison or supplementary service will be applied for or opened against him.
If the realizable value of the securities- which exists for the seller- exceeds his demands not only temporary more than 10 percent, the seller will release securities in corresponding amount after his choice by request of the client.
18. Secrecy, naming of reference
The contracting parties agree confidence about the content and the financial conditions of this contract and about the findings which were won during the contract's winding up.
The confidentiality also applies beyond the finish of the relations of the contract.
The documents- which were handed over from one party of the contract- have to be given back to this party after its demand as far as the other party of the contract isn't able to assert legitimated interest for these documents.
Press reports, information, etc.- in which one party of the contract refers to the other one- are only permissible after the previous written agreement, also per email. Albeit the seller is allowed to name the client at their homepage or in other media as referrence client, to duplicate and spread the adduced services within the scope of own advertisement and to public describe for the purpose of demonstration and to point to them, except the client is able to assert legitimated interest which is stood in the way.
The client is advised of the fact that email and net are an open medium. The seller isn't liable for the confidentiality of emails and the net. The email communication can be carried on about other media if the client wants this.
The seller and the client will oblige third persons, especially sub entrepreneurs, freelancers etc. for secrecy.
The seller is entitled to save the data which concern the concrete order and to process and to put in these data in accordance with the legal provisions for internal purposes. The client will herewith be informed, that the seller saves in machine-readable form his entire address and further information which were given opposite to him in the course of the relations of the contract and that he processes them by machine for information which result from the contract. Other data- which the seller raises, saves and uses for other purposes within the scope of the contract- aren't related to persons.
The transfer to third persons is permissible, if and as far as this is item of the contract, e.g. during the registration of domain names or the like.
20. Final provisions
Place of fulfilment is for lack of other agreement the place of the seller's settling.
Exclusive legal domicile for all lawsuits - which directly or indirectly come from the relations of the contract and about its creation and its effectiveness - is Schmalkalden. This also applies to arguments out of documents, changes and cheques which concern the relations of the contract. The seller still has the right to keep the client busy in front of the law court at his residence or place of business.
German law applies to all Questions of law which result from the order and its wind-up under exclusion of the agreement of the UN about contracts about the international competition.
If one or more individual provisions of these general terms of business should be inoperative for some reasons, the validity of the other provisions won't be touched.
As far as these general terms of business have gaps, these ones should be filled through a rule which takes the economic purpose of the contract into account.
If rules - which depart from these general terms of business - are made between the parties in individual contracts, these individually contractual arranged rules will override these general terms of business.