Terms And Conditions

General Terms and Conditions and Basis of Contract

§ 1 General

1.1 The following General Terms and Conditions (hereinafter: "GTC" or "GTCs") apply to all contracts (in written as well as electronic form) between Kimicom and its Client.

1.2 These GTCs apply to persons who are not consumers in the sense of §13 BGB.

1.3 These GTCs shall also apply to all future business relations between Kimicom and the Client, even if they are not expressly agreed again.

1.4 Deviating GTCs of the Client are not recognised - unless expressly agreed in writing - and therefore do not become part of the contract.

1.5 Ancillary agreements of any kind whatsoever shall only be binding if they have been recorded and confirmed in writing.

1.6 The GTC are available for inspection at Kimicom's registered office and are also available online on the website (www.kimicom.de/agb). At the separate request of the Client, Kimicom will send these GTC to the Client in text form (letter, fax, e-mail). By entering into a contract with Kimicom, the Client confirms that it has had reasonable opportunity to become fully aware of the contents of the GTC and expressly agrees to them.

§ 2 Offer and Conclusion of Contract

2.1 Offers from Kimicom are generally non-binding unless otherwise indicated or agreed. By written acceptance of the offer or by payment of 50% of the offer volume by the client, a legally effective contract is concluded.

2.2 Kimicom binds itself - unless otherwise agreed - in principle to offers for 10 days (from the date of the offer). After expiry of these 10 days - fruitless - the offer is void.

§ 3 Term of Contract and Termination

3.1 If contracts are service contracts with a fixed or indefinite term, they may be terminated at any time by either party with a notice period of 3 months (unless explicitly agreed otherwise). The agreed minimum term (if any) remains unaffected by this right of termination.

3.2 In the case of contracts where the websites and online shops are rented, the term shall be automatically extended by 12 months if these are not terminated at least 3 months before the expiry of the agreed minimum term (if any).

3.2 If the client withdraws from a contract for reasons for which Kimicom is not responsible, compensation for damages will apply in the amount of the expenses demonstrably incurred by Kimicom. Any outstanding invoices already issued by Kimicom to the Client remain unaffected by this.

3.3 The right to terminate the contract prematurely for good cause remains unaffected. Such good cause shall be deemed to exist in particular if the Client is in default of payment of two monthly amounts, insolvency of one of the contracting parties as well as breach of a material contractual obligation despite prior written warning. 3.4 All notices of termination must be given in writing.

§ 4 Scope of Services, Placing of Orders with Third Parties

4.1 The scope of the services results from Kimicom's offer or from the product/service description current at the time of conclusion of the contract.

4.2 Kimicom is entitled to carry out the work assigned to it itself or to commission third parties to do so.

§ 5 Prices, Terms of Payment, Acceptance, Default of Payment

5.1 The prices agreed in the respective contracts are always in EURO (€), as net prices, to which the respectively applicable value added tax must be added.

5.2 Unless otherwise agreed, payment of the total amount shall be made in two stages. 50 % of the order volume shall be invoiced immediately after placing the order. The remaining 50 % shall be invoiced upon written notification to the customer of the creation of the basic version/layout.

5.3 In the case of contracts with a maintenance service, this as well as maintenance service contracts as such will be invoiced to the Client in writing by Kimicom on a monthly basis, unless otherwise agreed.

5.4 In the case of contracts where the websites and online shops are rented, the Client will be invoiced monthly by Kimicom in writing, unless otherwise agreed.

5.5 Upon delivery of the work, acceptance is required. The delivery will be made in writing by Kimicom. Acceptance may not be refused on artistic grounds. There is freedom of design within the scope of the order. Complaints must be made in writing to Kimicom within 14 days of delivery of the work. Thereafter, the work is deemed to be accepted as free of defects.

5.6 If the client wishes to make changes after acceptance of the work that is free of defects, Kimicom will invoice these separately.

5.7 Kimicom reserves the right to provide services only against advance payment (in full or in part) if there is an objectively justified reason for this. This applies in particular to clients of Kimicom who have repeatedly exceeded a payment term of past invoices.

5.8 If available, costs for domain bookings, Apple Developer, Google Developer, accounts, payment providers, SSL certificates and similar services are charged annually in advance. This does not include costs for server rental/hosting. These will be invoiced quarterly. These invoices are due for payment immediately upon receipt.

5.9 Cost increases occurring after the conclusion of the contract for which Kimicom is not responsible will be passed on to the Client. The client is not entitled to terminate or withdraw from the contract due to cost increases... unless they amount to twenty or more percent of the agreed total price. Kimicom shall provide the Client with evidence of the cost increases that have occurred upon request.

5.9.1 Kimicom will charge interest on arrears at a rate of 5 percentage points above the respective base rate of the European Central Bank.

5.9.2 Withholding of payments due to counterclaims of the customer is not permitted, nor is offsetting against such claims. This shall not apply in the case of legally established claims.

5.9.3 Kimicom reserves the right to assert further claims due to default of payment.
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§ 6 Delivery time

6.1 The respective development period or delivery time on the part of Kimicom is determined individually for contracts for work and services in the respective contracts.

6.2 In case of unreasonable delay in delivery, the Client shall in any case only be entitled to exercise the rights to which it is entitled by law after having granted a reasonable grace period of at least two weeks.

§ 7 Copyright, right of use, reference, retention of title, liability

7.1 Every order placed with Kimicom is a copyright contract which is directed towards the granting of rights of use to the work performances.

7.2 All drafts and final artwork are subject to copyright law. This also applies if the necessary protection requirements are not met in individual cases. Kimicom is therefore entitled to the copyright claims from § 97 ff. UrhG (German Copyright Act).

7.3 If agreed, Kimicom will provide individual services for each order or project. However, unless otherwise agreed, the Client has no exclusive rights to fonts, icons, colours, colour codes, text passages in error messages, confirmations, notices, button styles, individual design elements, placeholder images of Kimicom, even after project handover. If, in individual cases, Kimicom has taken graphics or fonts from graphic collections or design collections that can be used without a licence, it cannot be ruled out that individual design components used by Kimicom for an order may also be used by other users of these collections. No claims can be made against Kimicom as a result of this.

7.4 The rights of use are not transferred to the client until the client has paid the remuneration in full.

7.5 Kimicom is entitled to name the Client together with the order description and using its logos in the context of its own advertising. This applies in particular - but not exclusively - to brochures, the website and other digital media.

7.6 Kimicom has the right to be named as the author on the reproductions and in publications about the product. A violation of the right to be named entitles Kimicom to compensation.

7.7 Kimicom is liable - regardless of the legal grounds - only for intent and gross negligence. This limitation of liability also applies to its vicarious agents and assistants. This also applies to damages resulting from a positive breach of contract or a tortious act.

7.8 With the acceptance of the order, the client assumes responsibility for the accuracy of text and images.

7.9 Kimicom is not liable for the admissibility and registrability of its drafts and other design work under competition and trademark law. Kimicom is not obliged to provide legal advice. It is up to the client to engage third party legal advice or review at their own expense. Kimicom is not liable for the result of such a legal review.

7.9.1 The client is liable for any warnings from third parties against Kimicom or legal injunctions against its contractual products or their contents. The client must indemnify Kimicom from all claims of third parties due to such an infringement.

7.9.2 Kimicom is not liable for the information transmitted via its services, in particular not for its completeness, correctness or topicality, nor that it is free of third party rights. This also applies to templates, documents and data provided by the Client to Kimicom.

7.9.3 Kimicom is not liable for defects in data carriers, files and data, except in cases of intent and gross negligence. Kimicom‘s liability is excluded for defects in data carriers, files and data that occur during the import of data onto the Client's system.

7.9.4 If Kimicom itself is a customer of subcontractors, Kimicom hereby assigns to the Client all of its warranty claims, claims for damages and other claims arising from defective, late or non-delivery. The Client undertakes to first attempt to enforce the assigned claims before making a claim against Kimicom.
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§ 8 Duty of the customer to cooperate

8.1 The purchase of necessary licences or the purchase of software subscriptions or software products, graphic files, images or any other services from third parties shall be borne by the customer, unless otherwise agreed.

8.2 The customer shall ensure the provision of necessary accesses and the granting of access to the systems necessary for the provision of the service. This includes in particular the access to already existing systems/interfaces, if any. In addition, the client shall ensure that the documents, information and data necessary for the provision of its service are made available to Kimicom completely, correctly and free of charge within two weeks of the order being placed. Kimicom assumes that these documents, information and data are correct.

8.3 If third parties are commissioned by the client to provide a certain service, Kimicom will only take over the communication with these third parties if it concerns services that are within Kimicom's area of competence. This communication is considered to be a service provided by Kimicom and will therefore be invoiced separately.

8.4 Kimicom must be informed in writing by the client in good time, but at least 14 days in advance, of the involvement of other providers by the client that influence or make dependent the work of Kimicom, and must agree to this. This applies in particular if the Client itself commissions further service providers or independently makes technical or graphical adjustments. Consent must always be given in writing.

8.5 Contract conclusions with external service providers and/or further agencies (in particular with advertising networks, affiliate networks, advertising agencies, SEO agencies, performance agencies, payment providers, hosting and/or domain registries, certificates and server services) are concluded by the customer. If costs are incurred in the course of concluding these contracts with third parties, these shall also be borne by the customer, unless otherwise contractually agreed.

8.6 In general and unless otherwise agreed, the Client warrants that all modification work/repair work on the work results and/or services provided and/or responsible for by Kimicom may in principle only be carried out by Kimicom or by a third party commissioned by Kimicom. Exceptions to this rule require a separate written agreement in each individual case. If this is not done, Kimicom shall in no case be liable for any defects that arise.
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§ 9 Confidentiality The Client undertakes to maintain confidentiality towards third parties about the details of Kimicom's business operations that become known to it. This applies in particular to ideas and concepts brought to its attention during the cooperation.

§ 10 Place of Jurisdiction, Miscellaneous

10.1 The exclusive place of jurisdiction for all legal disputes arising from or in connection with the respective contract of the parties and these GTC is the registered office of Kimicom.

10.2 All legal relations with Kimicom are exclusively governed by German law. The International Sales Convention (CISG) does not apply.

10.3 Kimicom reserves the right to change or amend these GTCs. Changes or amendments will be communicated to the Client in text form (letter, fax, e-mail). The Client agrees to these changes or amendments if he does not object to them within two weeks after receipt.

§ 11 Severability clause Should one or more provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. The invalid clause shall be replaced by the statutory provision. If the statutory provision is missing, the invalid clause shall be replaced by a valid provision which usually comes as close as possible to the economic purpose pursued by the invalid provision. Any loopholes in the provisions shall be filled accordingly.

Status 02/2018