General terms and conditions
The following contractual General Terms and Conditions (hereinafter “GTC”) are intended to create the basis for a trusting and effective cooperation between MAGIC HOLO the innovation division of Mangold & Mangold Unternehmenskommunikation GmbH & Co KG, Prinzenstraße 5, 55218 Ingelheim am Rhein (hereinafter “Mangold & Mangold”) and its Customers.
The MAGIC HOLO business unit is aimed at business customers and includes, among other things, agency services in the area of consulting, development and realization for holography, VR, AR and 3D mapping projects – plus any sales and rental services within the scope of the respective project implementations.
Status: 18.11.2016
Part 1. scope, definitions and bases of the contract.
Part 2. development, agency, maintenance and consulting services.
Part 3. rental services.
Part 4. Warranty and liability.
Part 5. remuneration and accounting.
Part 6. Termination.
Part 7 Confidentiality, Non-Solicitation, Amendments to the GTC and Final Provisions.
PART1: Scope, definitions and basis of the contract
1. scope
a) The GTC are part of the contracts concluded between Mangold & Mangold and the customer including follow-up orders of the same kind as well as the basis of the services rendered by Mangold & Mangold.
b) The version of the GTC valid at the time of the conclusion of the contract shall apply.
c) Individual agreements of the contracting parties that deviate from these GTCs shall take precedence over these GTCs if they have been expressly agreed. This also applies to the cancellation of the written form.
d) Individual agreements, order and service descriptions, tariffs, SLA, in each case if provided, are part of the contract and take precedence over these GTC.
e) Deviating general terms and conditions of the customer shall only apply if Mangold & Mangold has expressly agreed to them. Failure to reject contrary and communicated terms and conditions of the customer does not constitute consent.
f) Mangold & Mangold is entitled to agree on the validity of additional GTC for additional and separate services. The additional GTC shall be made clearly recognizable to the customer. If the additional GTC contradict these general conditions, the additional GTC shall take precedence.
2. definitions
a) Content – The term “Content” as used herein shall mean all content and information, such as photographs, graphics, logos, videos, texts, source codes, 3D data, information about places and persons or links.
b) Software – “Software” means executable programs and their associated functions, data and design elements. Software includes, among others, application programs, applications and websites.
c) Continuing obligation contracts – These are contracts that are concluded for a fixed or indefinite term, e.g. rental agreements.
d) Contracting parties – The term summarizes the customer, and Mangold & Mangold.
e) Work – The term “work” shall be understood to mean the result of Mangold & Mangold’s performance, in particular the advertising material, concepts, software or content created within the scope of this contract.
f) Goods – “Goods” are items that are the subject of Mangold & Mangold’s services and are provided to the customer primarily as part of sales, rental or manufacturing services.
3. offers and their acceptance
a) Descriptions and representations on websites, brochures, etc. do not constitute binding offers.
b) Contractual inquiries (incl. order and other service inquiries) to Mangold & Mangold shall only establish a contractual relationship with Mangold & Mangold upon their acceptance. Mangold & Mangold reserves the right to refuse contract requests.
c) Offers from Mangold & Mangold are valid for 14 days unless otherwise stated, subject to interim rental.
4. supplements/change requests and additional expenditure
a) Addenda (also referred to as “change requests”) are orders that materially add to, expand, or modify the original service agreement. The services of Mangold & Mangold due to supplements of the customer are to be remunerated separately as a lump sum or time fee according to the agreement of the supplement.
b) All services of Mangold & Mangold that are based on subsequent change requests of the customer or that change the factual situation communicated by the customer after the submission of an offer by Mangold & Mangold or after the conclusion of the contract are considered additional expenses that are to be remunerated separately according to the offer. This shall apply in particular if, after (partial) acceptance of its services, Mangold & Mangold makes changes at the customer’s request that relate to services that have already been accepted. This shall also apply if acceptance has not yet taken place although the prerequisites for acceptance have already been met.
c) Mangold & Mangold is entitled to make an offer for the additional costs. Mangold & Mangold is obligated to prepare such an offer if the originally agreed remuneration is exceeded by more than 25%, unless remuneration according to time and effort has been agreed or the customer expressly waives a separate offer.
d) Until the decision on the acceptance or rejection of the offer by the customer in connection with supplements/change requests or additional costs, Mangold & Mangold shall pause work on the services affected by the offer. Agreed delivery periods shall be extended accordingly.
e) Mangold & Mangold is not obligated to comply with the customer’s requests for changes and additions that relate to services that have already been accepted. This shall also apply if the acceptance requirements according to these GTC or contractual agreements have been met, but no acceptance has yet taken place by the customer.
5. place and time of activity
a) Mangold & Mangold is free with regard to the type of execution of the agreed individual orders in terms of time and place.
b) Mangold & Mangold shall have the right to use subcontractors for the performance of this contract, provided that this does not conflict with any contractual obligations, in particular the obligation to provide services directly by Mangold & Mangold (e.g. due to its professional competence) or the obligation of confidentiality and data protection.
c) If subcontractors are not vicarious agents of Mangold & Mangold, Mangold & Mangold shall act as agent in the legal relationship between the customer and subcontractor or as messenger in case of mere forwarding of declarations of intent. The GTC of the respective subcontractor shall apply in each case. Mangold & Mangold shall not be liable for orders placed with third parties by the customer himself.
d) The employees of Mangold & Mangold do not enter into an employment relationship with the customer. The customer shall give instructions exclusively to the responsible employees designated by Mangold & Mangold, with effect for and against Mangold & Mangold.
6. deadlines and dates
a) Deadlines and dates shall only be considered binding if Mangold & Mangold expressly agrees to a deadline or date.
b) Bindingly promised delivery dates shall be deemed to have been met if the goods have been handed over to the shipper on the agreed date.
c) Mangold & Mangold is not responsible for delays in performance due to force majeure or circumstances that are within the customer’s scope of application (untimely provision of content, etc.) and entitles Mangold & Mangold to postpone the performance of the affected service for the duration of the hindrance/delay plus a reasonable period of time. In turn, Mangold & Mangold undertakes to notify the customer of any delays in performance due to force majeure.
7. deliveries
a) If Mangold & Mangold commissions a transport company to deliver goods, the risk shall pass to the customer as soon as the consignment has been handed over to the person performing the transport or has left the business premises of Mangold & Mangold or the commissioned supplier for the purpose of shipment.
b) If the goods are insured by Mangold & Mangold against loss and damage within the scope of delivery, the customer may declare to Mangold & Mangold in writing that he does not wish to make use of the insurance. In this case, the customer bears the full risk of transport.
c) The customer must immediately notify the carrier (forwarding agent/mail carrier) of any externally visible transport damage and obtain a receipt from the carrier. Otherwise, claims for compensation by Mangold & Mangold are excluded.
PART2: Development, agency, maintenance and consulting services
8. order description
a) The services of Mangold & Mangold include development and agency services, which include the creation of new designs, software and content, as well as analysis and consulting services. The concrete specifications of the respective contractual service, its scope, areas of application, general conditions, functions, documentation as well as the time schedule and process plan result from the order description on which the respective service is based.
b) No specifications apply to the order description; it can also take the form of an offer, an order description or a specification sheet, for example. The order description shall contain a sufficient degree of detail for the respective service as is customary in the industry. In the case of agile projects, the defined (and, if necessary, subsequently adjusted) frameworks (i.e., values, principles, and methods) as well as the functions and project descriptions defined in the context of agile development (usually iterative) apply. The customer shall promptly notify Mangold & Mangold of any gaps in detail and shall assist Mangold & Mangold to the best of its ability in any further detailing required.
c) If the order description is insufficient or if its scope is doubtful in certain cases, the services to be provided shall comprise the tasks customary in the industry which are necessary to fulfill the agreed purpose of the contract.
d) Subsequent changes to the order description require the express confirmation of the respective contractual partner in order to be effective.
e) If the contractual services serve to achieve an expressly agreed concrete success (e.g. creation of a concrete work, achievement of certain success figures), this shall be deemed to be a contract for work and services. Otherwise, the contract is a contract of service.
f) User training, documentation, instruction, installation and maintenance are not part of the services of Mangold & Mangold and must be agreed separately. Mangold & Mangold is also, unless otherwise expressly agreed, neither obligated to provide storage space (hosting) nor to procure an Internet domain or access to the Internet (access providing).
9. maintenance and services
a) The pure ongoing maintenance and services do not include consulting and further development. A separate agreement shall be concluded for these services. These are services that go beyond maintaining the functionality of the software and the agreed updates to the current version and concern, for example, further functional scope, other areas of application or individual adaptation in terms of appearance or content.
b) Also not included in ongoing maintenance and services are adjustments due to technical changes that result in essential functions or interfaces of the software having to be essentially recreated. This includes, in particular, changes to the system architecture and environment made by the customer or third parties that were not foreseeable at the time the contract was concluded.
c) For work that can be planned, an appropriate date can be found together with sufficient advance notice that restricts the availability of the system as little as possible. In principle, the execution of plannable work is coordinated with the customer with a lead time of 3 days. Plannable work and activities are those that are known in advance and are not time-critical, but the system may only be available to the customer to a limited extent or not at all for a certain period of time.
10. cooperation and duties to cooperate
a) The contracting parties shall cooperate in a spirit of trust and shall inform each other without delay in the event of deviations from the agreed procedure or doubts as to the correctness of the other’s procedure.
b) The customer undertakes to support Mangold & Mangold in the fulfillment of its contractually owed performance. This includes in particular the timely provision of information and data material to the extent required by the customer’s cooperation services. The contracting parties will agree on the form and quality in which Mangold & Mangold’s customer will provide the content to be included at the latest before the concept phase is completed. It must be agreed whether the content is provided by the customer in digital, printed or other form.
c) If the provision of content by the customer in digital form has been agreed, this content shall be provided in file formats and programming languages that correspond to the current state of the art. In this context, the quality of the content must be appropriate to the purpose of the contract.
d) If necessary for the provision of services by Mangold & Mangold and not to be provided by Mangold & Mangold, (i) the Customer shall make the technical facilities such as hardware or data transmission lines operational and provide them free of charge to a reasonable extent; (ii) Customer shall provide the Access Data; (iii) Customer shall support Mangold & Mangold in test runs and acceptance tests by appropriate personnel.
f) To the extent that test runs or acceptance tests, presentations, or other meetings become necessary or expedient, Customer will assign knowledgeable employees to attend the meetings, who are authorized to make any necessary or expedient decisions.
g) Cooperation services and provisions of the customer shall be free of charge for Mangold & Mangold.
h) If Mangold & Mangold is not able to perform the services due to missing and insufficient cooperation or provision of the customer or only with additional expenses, Mangold & Mangold is entitled to claim necessary additional expenses from the customer. In such a case, Mangold & Mangold cannot itself be in default for the duration of the customer’s default and, if the customer’s default continues for a longer period, can terminate the contract after setting a deadline and threatening refusal and, pursuant to Art. § Section 649 of the German Civil Code (BGB).
i) Auto-corrections are additional services caused by the customer, which are not offered. These are, for example, incorrect data or data or documents and templates not supplied in accordance with the offer, and also, for example, subsequent changes. Author corrections may be billed separately unless otherwise agreed in writing.
j) If the customer recognizes that its own information and requirements are incorrect, incomplete, ambiguous or impracticable, it shall immediately inform Mangold & Mangold thereof and of the consequences recognizable to it.
k) The communication between Mangold & Mangold and the customer shall be as effective as possible, i.e. fast and error-resistant. In this context, the customer shall observe any formal communication requirements, provided that these are achievable and their perception is reasonable for the customer. This includes, in particular, the use of ticketing systems and sufficient description of problems, symptoms, technical faults, etc. If the formal communication requirements are not observed by the customer, no rights and obligations of the contracting parties shall be established against each other. If the communication takes place in a way other than the specified way, Mangold & Mangold shall be entitled to charge for the additional expenses incurred (e.g. if a problem is recorded by telephone although a ticketing system was provided).
11. project management
Upon request, the contracting parties shall each appoint a project manager and his deputy without undue delay. The project manager and his deputy shall be the exclusive contact persons for the other contracting party for all questions concerning the project. The parties assure that the project managers and deputies to be appointed by them are fully authorized to make all decisions concerning the project.
b) If there is an important, objectively justified reason, the contracting parties may replace the project managers and their deputies appointed by them with other persons. The contractual partner must be informed of any changes without delay. When making changes, both Parties shall ensure that there are no disruptions to the course of the project and that newly appointed persons have all the necessary information and expertise required for the smooth further course of the project.
12. legal requirements and legal obligations to cooperate
a) The services of Mangold & Mangold do not include, unless expressly agreed, any legal review or legal advice (for example, trademark law, copyright law, data protection law or competition law) and fulfillment of legal information obligations of the customer (e.g. provider identification, privacy policy, consumer information in distance contracts, etc.).
b) In case of justified doubts about the legal admissibility of a measure, Mangold & Mangold may request the customer to release the measure and postpone the execution of the measure for that period of time.
c) If Mangold & Mangold provides the customer with legal documents (e.g. supplements to the privacy policy), these are legal samples without any claim to correctness and completeness, which are to be checked individually by the customer.
d) The customer shall ensure that the content provided by him is free of third-party rights and that its publication does not violate applicable law in any way. The content provided also includes such content and its sources that are recommended or suggested by Mangold & Mangold’s client with regard to the client’s performance of its duties.
e) The customer shall indemnify Mangold & Mangold against all claims and damages suffered by Mangold & Mangold due to legal violations attributable to the customer.
13. scope of the rights of use transferred
a) Mangold & Mangold shall transfer to the customer the rights of use to its works required for the respective contractual purpose in the scope of use, duration of use and spatial scope of application corresponding to the order description. Unless otherwise agreed, a non-exclusive right of use for the user’s own use shall be transferred in each case.
b) The customer shall receive an exclusive right of use and exploitation, unlimited in terms of time and space and limited in terms of subject matter to the contractual purposes, to works that are provided individually and specifically for the customer (for example, individual graphics or program routines), which shall include in particular the rights of use, reproduction and distribution and the right to make them publicly accessible. The resale and further distribution of the work by the customer is excluded, unless it has been expressly agreed or results from the nature of the order.
c) In the case of works that are based on, modify, extend or adapt other works (e.g. in the case of individual adaptation of templates or software modules), any exclusive rights of the customer do not extend to the original works, but only to the extent of the modifications, extensions and adaptations made by Mangold & Mangold for the customer.
d) The customer is granted the right to edit the work as long as the right to edit has been expressly agreed or results from the nature of the order.
e) The rights of use to the works shall not pass to the customer until the customer has paid the remuneration in full.
f) Insofar as the work contains open source components, the transfer of rights shall only take place to the extent and in accordance with the respective open source license. Mangold & Mangold expressly points out that the open source components may only be used, edited and subject to dispositions within the scope of the respective license.
g) Suggestions and instructions of the customer or his employees do not constitute a joint copyright.
h) Mangold & Mangold is entitled to refer to the works designed and produced for the customer for the purpose of self-promotion, subject to any express confidentiality obligations. The customer is not entitled to remove these references without the consent of Mangold & Mangold.
14. publishing templates, drafts and source code
a) The templates, drafts, models, raw data, (creation) files, and other working materials created by Mangold & Mangold, which serve to provide the service owed under the contract (hereinafter referred to as “Templates”), shall remain the property of Mangold & Mangold. If the client wishes the handing over of the templates, this has to be agreed upon and paid for separately. This shall also apply if the templates are included as a separate invoice item within the scope of an offer or similar – but without agreement on an obligation to surrender.
b) If the release of the source code is agreed or otherwise provided for (e.g. within the scope of an open source license), its transfer/provision of access in digital form shall be sufficient. If a right to edit the work has not been agreed upon, the customer may only use the source code if Mangold & Mangold cannot or does not want to carry out an error correction, a change or an extension of the application within a reasonable period of time. The customer is aware that in order to work with the source code, he may have to purchase developer licenses for the third-party components used. If the source code is not under an open content license, it may not be used in the context of an application that is not part of the contractual agreement with Mangold & Mangold, unless otherwise agreed.
c) There is no obligation to retain the data. Mangold & Mangold is entitled to delete the templates and the source code at the latest after 6 months from the end of the contract.
15. offers, presentations and pitches
a) The development of conceptual and design proposals by Mangold & Mangold with the aim of the further placement of the order by the customer shall be carried out, notwithstanding deviating regulations in individual cases, against payment of the fee agreed upon with the customer for this (presentation fee).
b) Copyrights, rights of use and property rights to the work presented by Mangold & Mangold in this context shall remain with Mangold & Mangold even if a presentation fee is charged. The customer only acquires rights of use to the agreed extent when the order for realization is placed in return for separate remuneration.
16. decrease
a) These regulations on acceptance shall only apply if they form the basis of a contract for work and services.
b) The subject of the acceptance is the contractually owed performance in accordance with the order description. In the event that several order descriptions have been made during the preparation, the acceptance shall be made against the last, consented version of the order description.
c) A prerequisite for acceptance is that Mangold & Mangold hands over the performance results to the customer in full and notifies the customer of readiness for acceptance. The handover of all performance results necessary for acceptance, constitutes a request for acceptance.
d) Thereupon the customer has to start the inspection of the acceptability within 10 working days.
e) If the acceptance fails, the customer shall provide Mangold & Mangold with a list of all defects preventing the acceptance. After expiration of a reasonable period of time, Mangold & Mangold shall provide a defect-free version of the performance owed under the contract that is ready for acceptance. Within the scope of the subsequent inspection, only the recorded defects are inspected, insofar as they can be the subject of an isolated inspection according to their function.
f) After successful testing, the customer must declare acceptance of the work results within 10 working days.
g) Provided that no significant defects are notified beforehand, the performance results shall be deemed to have been accepted by the customer after the expiry of 10 working days after submission for acceptance.
h) Defects shall be described as precisely as possible so that they can be traced and remedied by Mangold & Mangold.
i) The customer may not refuse acceptance due to insignificant defects. However, this is subject to the immediate removal of the defects by Mangold & Mangold. These defects shall be listed individually in the acceptance report.
j) The preparation of the contractual services may be agreed upon in individual partial sections. Mangold & Mangold shall be entitled to request the customer to make a partial or interim acceptance if this is objectively justified and reasonable for the customer due to the subject matter, scope or timing of the performance.
k) The regulations on acceptance, warranty and remuneration shall apply to the respective subsections. This means in particular that change requests of the customer, which deviate from already accepted partial sections, are to be remunerated separately by the customer.
PART 3: Rental services
17. rental object and return
a) In case of rental services, the rental object remains the property of Mangold & Mangold. The rental object is carefully checked for defects before handover and handed over in perfect condition.
b) Rental items are incl. return accessories on the agreed date (day and time) in perfect condition in the specified type, at the specified place and to the specified person/company (or if no such are named, to Mangold & Mangold). If the agreed date is not met, the rental period is considered extended with costs. The customer shall return the rented items to the lessor/supplier at his own expense and risk without delay after expiry of the rental period. In the event of late return, the lessee shall compensate Mangold & Mangold for any damage.
18. cancellation fees
a) If the customer withdraws from the rental contract, regardless of the reason, Mangold & Mangold may demand the following cancellation fees, calculated on the basis of the order value, without proof of damage.
b) The cancellation fees are 40% of the AW up to 60 days before the beginning of the rental period, 50% of the AW up to 30 days before the beginning of the rental period, 70% of the AW up to 14 days before the beginning of the rental period, 90% of the AW up to 5 days before the beginning of the rental period. From the beginning of the rental period, the full rental price must be paid.
19. use and damage
a) Operating instructions and safety regulations must be strictly observed. The customer undertakes to use the rental object carefully and in accordance with its intended use.
b) Any covering or removal of logos, emblems and other references to Mangold & Mangold is prohibited, unless it is necessary for the use of the object.
c) During the time of handover until the return of the rental object, the customer is liable for the rental objects, especially in case of theft, damage or loss. Furthermore, the customer is prohibited to transfer the rented items to third parties. Subletting or assignment of the lease is generally prohibited.
d) If a rental object is damaged or a fault occurs, the customer is obliged to inform Mangold & Mangold immediately about problems or damages. If no immediate information is provided, the customer shall be fully liable and shall pay for all damages incurred in this respect.
e) The customer is not entitled to make changes to the rental object. Otherwise, he shall bear the entire cost of restoring the leased property to its original condition.
PART 4: Warranty and liability
20. claims for material defects
a) Claims for defects shall not exist in the case of an insignificant deviation from the agreed or assumed quality and in the case of only insignificant impairment of the fitness for use. Minor wear and tear on the rented items, such as mass or color, shall not be considered defects if they do not impair the suitability.
b) The contents of the order description shall not be deemed to be a warranty without a separate express agreement.
c) Insofar as Mangold & Mangold relies on information provided by third parties when providing information about properties (e.g. when renting items) and this is or should have been recognizable to customers, Mangold & Mangold does not assume any liability for the accuracy and timeliness of this information.
d) Mangold & Mangold undertakes to create websites and comparable online offers in such a way that their response time behavior corresponds to the response time behavior of other internet offers with comparable contents and comparable scope as well as comparable server environment in case of comparable internet connection and technical equipment of the hardware and software used by the end user to call up the internet presence. Websites and comparable online offers must be executable within the browsers and resolutions customary in the industry at the time of the conclusion of the contract. Browsers with a version status of more than one year ago and browsers as well as screen resolutions that are represented in less than 10% of the market are not considered industry standard. The details are explained in the offer of the agency.
e) In the case of update, upgrade and new version deliveries of software, the claims for defects shall be limited to the innovations of the update, upgrade or new version delivery compared to the previous version status.
f) If the customer demands supplementary performance due to a defect, Mangold & Mangold shall have the right to choose between repair, replacement or substitute performance. If Mangold & Mangold’s customer has set another reasonable grace period after the first one has expired without result and this grace period has also expired without result, or if a reasonable number of attempts to remedy the defect, to deliver a replacement or to provide a substitute have been unsuccessful, the customer may, subject to the statutory requirements, at its option rescind the contract or reduce the purchase price and claim damages or reimbursement of expenses. Subsequent performance may also be effected by handing over or installing a new program version or a workaround. If the defect does not affect the functionality or affects it only insignificantly, Mangold & Mangold shall be entitled, to the exclusion of any further claims based on defects, to remedy the defect by supplying a new version or an update within the scope of its version, update and upgrade planning.
g) Defects shall be notified by a comprehensible description of the defect symptoms, as far as possible proven by records, screenshots or other documents illustrating the defects. The notice of defect shall enable the reproduction of the defect. Statutory obligations of the customer to inspect and give notice of defects shall remain unaffected.
h) Modifications or extensions of the services or of a software made by the customer itself or by third parties shall render the customer’s claims for defects null and void, unless the customer proves that the modification or extension is not the cause of the defect. Mangold & Mangold shall also not be liable for defects resulting from improper operation as well as operating conditions or the use of unsuitable equipment by the customer.
i) Mangold & Mangold may refuse subsequent performance until the customer has paid to Mangold & Mangold the agreed remuneration, less a part corresponding to the economic significance of the defect.
j) The limitation period for claims for defects is 12 months from acceptance of the service. In the case of the delivery of updates, upgrades and new versions, the period for these parts shall commence in each case upon their acceptance.
k) As far as used goods are concerned, any warranty of Mangold & Mangold is excluded. This shall not apply if Mangold & Mangold has expressly warranted to the customer that the goods are free from defects or have been technically inspected.
l) Claims for damages shall be subject to the restrictions of Part 4 Clause 23 of these GTC (“Liability and Damages”).
21. use of third-party services
a) The following provisions shall apply to the use of services of third parties by Mangold & Mangold within the scope of the performance of services vis-à-vis the customer. Third-party services are services that are obtained from third parties in the name of and on behalf of the customer, such as rights of use for online platforms, SaaS offerings or open source software.
b) If material defects or defects of title are based on the defectiveness of the product of a third party and if such third party does not act as vicarious agent of Mangold & Mangold, but if Mangold & Mangold, recognizable to the customer, merely passes on a third party certificate to the customer, the customer’s claims for defects shall be limited to the assignment of Mangold & Mangold’s claims for defects against the third party (e.g., if open source software is incorporated). Mangold & Mangold shall be liable for the defect itself if the cause of the defect was set by Mangold & Mangold, i.e. the defect is based on an improper modification, integration or other treatment of the services of third parties for which Mangold & Mangold is responsible.
c) Mangold & Mangold is not responsible if services of third parties are limited or stopped altogether by the third party. If the third party introduces a fee for the provision of the third party services, Mangold & Mangold has the right to adjust the remuneration agreed with the customer accordingly, if the customer wishes to continue the use of the third party services after consultation and the remuneration would be charged to Mangold & Mangold.
22. third party behavior
a) The customer acknowledges that the behavior of third parties in online media and offline is difficult to calculate and Mangold & Mangold is not responsible for the behavior of third parties (e.g. negative comments, protest actions, etc.). This does not apply if Mangold & Mangold has culpably challenged this behavior. In this case, liability shall be determined in accordance with Part 4 Clause 23 of these GTC (“Liability and Damages”). In determining negligence, the standards of conduct customary in the industry and reasonably expected patterns of conduct of third parties shall be used.
b) Mangold & Mangold will inform the customer as soon as a third party’s conduct assumes a scope that could cause lasting damage to the customer’s reputation or sales promotion.
c) If there are concrete doubts about the legal admissibility of third party content or reasons to assume a possible damage for the customer, Mangold & Mangold is entitled to depublish such content (e.g. delete comments) or to ban users.
23. liability and compensation
a) Mangold & Mangold shall be liable under this Agreement only in accordance with the following provisions:
b) Mangold & Mangold shall be liable without limitation for damage caused intentionally or by gross negligence by Mangold & Mangold, its legal representatives or executives, as well as for damage caused intentionally by other vicarious agents; for gross negligence by other vicarious agents, liability shall be determined in accordance with the provisions for slight negligence set forth in (f) below.
c) Mangold & Mangold shall be liable without limitation for damages caused intentionally or negligently by Mangold & Mangold, its legal representatives or vicarious agents resulting from injury to life, body or health.
d) Mangold & Mangold shall be liable for damages due to missing warranted characteristics up to the amount which was covered by the purpose of the warranty and which was recognizable for Mangold & Mangold at the time the warranty was given.
e) Mangold & Mangold shall be liable for product liability damages in accordance with the provisions of the Product Liability Act.
f) Mangold & Mangold shall be liable for damages resulting from the breach of cardinal obligations by Mangold & Mangold, its legal representatives or vicarious agents; cardinal obligations are those essential obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the customer may rely. If Mangold & Mangold has breached these cardinal obligations due to slight negligence, its liability shall be limited to compensation for the foreseeable, typically occurring damage (hereinafter “typical damage”). Mangold & Mangold’s liability also includes the follow-up costs of remedying defects. However, the provision of Part 4 Clause 23 (f) of these GTC shall not apply to liability for consequential costs of defects (in particular costs of business interruption), which require a special contractual agreement. In case of failure of the rental object, the compensation is limited to the rental price.
g) The typical damage is generally limited to the specified amount and otherwise to the contractual fee, or the amount of the customer’s contractual fee for the period in which the breach of duty occurred. This shall not apply if the restriction would be unreasonable in the individual case from the point of view of equity. The typical damage does not exceed five times the agreed remuneration. If Mangold & Mangold is in default, Mangold & Mangold shall be liable for the customer’s damage caused by the default up to an amount of 15% of the order value.
PART5: Remuneration, settlement and retention of title
24. remuneration
a) The remuneration and the payment schedule for the contractually owed services result from the order description. Insofar as the contracting parties have not agreed on a fixed remuneration, the remuneration shall be calculated on the basis of time and effort. In this respect, the rates of Mangold & Mangold valid at the time of performance of the service shall apply.
b) Unless explicitly agreed otherwise, the daily or hourly rates of Mangold & Mangold shall be € 840.00 net or € 105.00 net per hour. The actual expenditure is decisive for the settlement. Mangold & Mangold adds up the individual jobs to person-days: a person-day consists of eight hours. Invoicing is done on an hourly basis.
c) In the case of billing according to time spent, the smallest billing unit shall be 25 minutes.
d) Mangold & Mangold is entitled to invoice the customer for progress payments at reasonable intervals. The amount of the progress payments shall be based on the value of the respective services already rendered by Mangold & Mangold.
e) Services outside the agreed scope of services or subject matter of the contract shall be remunerated separately by the customer. The applicable rates of Mangold & Mangold shall apply. The foregoing shall also apply to services rendered on the basis of incorrect or incomplete information provided by the customer, unverifiable notices of defects, improper use of the system or breaches of duty by the customer.
f) Work that occurs outside of core working hours (working days 9am – 7pm) at the instruction of the customer will be charged at a factor of 150%.
g) The customer shall reimburse all expenses and incidental costs directly related to the performance of the service, such as material, license and service costs for stock photos or sounds, proofs, printing costs, travel costs, board and lodging, text and author corrections, artists’ social insurance, as well as packaging and shipping costs and services by third parties.
h) In addition to the agreed remuneration, Mangold & Mangold shall be entitled to reimbursement of the outlays and expenses necessary for the performance of the services, in particular travel and accommodation costs as well as expenses, insofar as these have been approved by the customer on the merits. Mangold & Mangold shall invoice these in an auditable form together with the services rendered or separately in a timely manner. Travel expenses are reimbursed either according to the actual costs incurred for 2nd class rail travel or economy class flights (incl. luggage/meal) and/or, in the case of travel by car/van, at 1.10 euros/km net (including travel times and gasoline), by truck at 1.59 euros/km net (including travel times and gasoline) plus VAT. Cost of the rental car (van, truck) calculated. The basis is the fastest route according to the commercial route planner used by Mangold & Mangold. There are no travel costs within a 10km radius. The starting point of the journey/departure is the address of Mangold & Mangold, unless otherwise agreed.
i ) Insofar as Mangold & Mangold receives a time-dependent remuneration, the customer shall be obliged to sign off on any evidence submitted to indicate agreement without delay, but no later than within 7 days of receipt. To the extent that the customer does not agree with the evidence provided, the customer will detail any concerns about the evidence within this period. The contracting parties shall then immediately attempt to bring about a clarification. Subsequently, the evidence shall be signed off by the customer without delay. With the payment, the proofs are considered to be signed off.
j) Mangold & Mangold reserves the right to charge a handling or service fee of 15% if it purchases goods from third parties as a service provider for its customers on their behalf. Alternatively, it is also possible to calculate the expense according to the actual hours worked.
k) Obtaining any permits, concessions or licenses necessary for the proper operation or use of the goods, works and other services of Mangold & Mangold and the payment of the related fees shall be the responsibility of the customer.
25. settlement
a) The remuneration shall be due at the agreed time. Unless otherwise stated, invoices are due for payment without deduction within 14 days of the invoice date.
b) Payment of the remuneration shall only have a fulfilling and thus debt-discharging effect if it is transferred to the account stated on the invoice and the credit to the same account is also received without reservation.
c) If the contract ends prematurely, Mangold & Mangold shall be entitled to the remuneration corresponding to its services rendered until the termination of this contract.
d) Mangold & Mangold is entitled to invoice the customer for progress payments at reasonable intervals. The amount of the progress payments shall be based on the value of the respective services already rendered by Mangold & Mangold.
e) In the case of services under a contract for work and services, remuneration shall be due upon (partial) acceptance of the service. In case of an order amount exceeding 10,000 Euros, Mangold & Mangold shall be entitled to 30% of the order amount before the start of the work, 30% at the middle of the agreed project period and 40% after acceptance, even without a separate agreement.
f) Mangold & Mangold reserves the right in the case of rental agreements to demand an advance payment within a certain period of time, whereby the rental agreement is subject to the condition precedent that the customer makes the advance payment within the agreed period of time. If the customer does not comply with this condition, the rental agreement will not be concluded and the customer will have to pay a compensation in the amount of 25% of the rental price
g) Unless otherwise agreed, invoices may be in electronic form and sent by e-mail or made available for download online.
h) Unless expressly agreed otherwise, all amounts are net amounts, i.e. exclusive of statutory value added tax.
i) If the customer is in default of payment, interest shall be charged on the outstanding amount at the legally defined rate above the base interest rate applicable at the time. This shall not affect the assertion of further rights.
j) For each reminder of the invoice, Mangold & Mangold is entitled to charge a reminder fee in the amount of actual expenses in addition to the legal claims, whereby Mangold & Mangold may charge a lump sum of 10.00 Euro instead. The customer reserves the right to prove lower reminder expenses.
k) The customer may only set off claims of Mangold & Mangold that are undisputed or have been finally adjudicated, unless these are claims for completion or removal of defects. The customer shall only be entitled to assert a right of retention on the basis of counterclaims arising from this contract.
l) If a completion date has been set for a project at which Mangold & Mangold would be entitled to invoice its services and if the completion date could not be met due to circumstances for which the customer is responsible (e.g. lack of provision of content), Mangold & Mangold may invoice the agreed remuneration at the completion date as if the project had been completed at that time without the relevant delay.
26. adjustment of prices
a) In the case of continuing obligation contracts, Mangold & Mangold is entitled to an appropriate increase of the agreed lump sum after announcement. Such increase shall take effect at the end of the respective billing period.
b) A price reduction shall take effect at the end of the billing period that ends after the price is changed.
c) If the purchase prices for third-party services increase, this increase may be passed on to the customers in the same proportion.
d) If the customer does not agree with the adjustment, he may terminate the contract by observing the notice period as of the date on which the new charge comes into effect. If the regular notice period of the contract exceeds 30 days, a notice period of 30 days shall apply in deviation therefrom.
27. retention of title
a) All delivered goods and works shall remain the property of Mangold & Mangold until payment has been made in full.
b) The retention of title shall remain unaffected by any collection of individual claims in current invoices or by the drawing of balances or by the recognition of individual claims.
c) In case of resale of goods subject to retention of title, the customer already now assigns to Mangold & Mangold all rights arising from the resale with all ancillary rights and ranks before other creditors. Mangold & Mangold accepts the assignment. The customer is not permitted to pledge or assign the goods as security. Mangold & Mangold authorizes – revocable at any time – the customer to collect the assigned claims in the ordinary course of business, provided that (i) the customer meets his payment obligations towards Mangold & Mangold and third parties and (ii) the customer names the debtors of the claims at the request of Mangold & Mangold and notifies them of the assignment if Mangold & Mangold so requests. Mangold & Mangold may also indicate the assignment itself.
d) The right to resell shall expire upon the opening of insolvency proceedings or judicial composition proceedings. The same shall apply to the use and installation of goods subject to retention of title and to the collection authorization in the event of a check or bill protest. In such cases, Mangold & Mangold shall be entitled to collect the goods subject to retention of title.
e) If goods subject to retention of title are further processed, this shall be done on behalf of Mangold & Mangold without any obligations arising therefrom for Mangold & Mangold.
f) If further processing is carried out with items that are not the property of Mangold & Mangold, Mangold & Mangold shall be entitled to the co-ownership share in the new item in the amount of the value of the reserved goods in relation to the other items at the time of processing.
g) If execution measures are taken against the goods subject to retention of title or against assigned claims, the customer shall notify Mangold & Mangold thereof without undue delay and hand over the documents required for an objection and provide information.
h) If goods subject to retention of title are installed by the customer as an integral part of the real property, the customer hereby assigns to us the claims for payment arising against the third party or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights including the right to grant a security mortgage. Mangold & Mangold accepts the assignment.
i) Mangold & Mangold undertakes to release the customer’s securities upon the customer’s request to the extent that the realizable value of the securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released shall be incumbent upon Mangold & Mangold.
PART 6: Termination
28. contract term
a) In the case of contracts agreed as continuing obligations, the term of the contract shall correspond to the agreed term of the contract. Unless the term of the contract is expressly agreed, nor specified in the associated special provisions in these GTC, it shall be 12 months.
b) The billing period of additional options (e.g. services) corresponds to the billing period of the main contract. If the option is ordered during the term of the main contract, the first contract term is adjusted to align with the remaining term of the main contract.
c) The termination of dependent options of a contractual relationship shall not affect the contractual relationship as a whole, unless the entire contractual relationship is terminated.
29. ordinary termination
a) If the period of notice is not expressly agreed, nor specified in the associated special provisions in these GTC, it shall be 30 days to the end of the contract.
b) The period of notice of independently terminable parts/options of a contract corresponds to the period of notice of the main contract.
c) If no timely notice of termination is given, the term of the contract shall be automatically extended by the same period after its expiry.
30. extraordinary termination
a) Either party may terminate contracts based on these General Terms and Conditions for cause if one or more agreements have not been complied with by the other party and if, after a request to remedy the situation, the other party culpably fails to do so within a period of 14 days.
b) Extraordinary termination is also possible without a prior request for improvement if the terminating party cannot reasonably be expected to continue the contract, taking into account all circumstances of the individual case and weighing the interests of both parties to the contract. This is especially the case with:
c) obvious and serious contractual or legal violations, such as storing or making available for retrieval content within the meaning of § 4 of the Interstate Treaty on the Protection of Minors in the Media (Jugendmedienschutz-Staatsvertrag) or obviously copyrighted software or audiovisual content (music, videos, etc.);
d) criminal spying or manipulation of the data of Mangold & Mangold or other customers of Mangold & Mangold by the customer.
e) An important reason exists in particular if
(i) Mangold & Mangold fails to meet an expressly agreed completion date and allows a reasonable grace period set by the customer to expire fruitlessly, unless Mangold & Mangold is not responsible for the delay;
(ii) one of the contracting parties grossly breaches its obligations under this contract or respective order;
(iii) insolvency proceedings are opened against the assets of the other contracting party or the opening of insolvency proceedings is refused for lack of assets.
f) After termination of the contractual relationship, Mangold & Mangold shall no longer be obliged to provide the contractual services. Mangold & Mangold may, subject to agreed or legal retention obligations, delete all data of the customer. The timely storage and backup of data is therefore the responsibility of the customer.
PART 7: Confidentiality, non-solicitation, amendments to the GTC and final provisions
31. data protection
a) The personal data of the customers are only collected, processed and used for the execution of the contract. By concluding the contract, the customer agrees to the collection, processing and use of his data in electronic data processing systems. The privacy policy accessible via the Mangold & Mangold website applies.
b) The contracting parties shall observe the relevant data protection regulations. In particular, Mangold & Mangold shall only collect, process or use personal data of third parties that the customer forwards to it or that it collects, processes or uses on behalf of the customer within the scope of the customer’s instructions. Furthermore, it is the customer’s responsibility to comply with data protection regulations.
32. confidentiality
a) The contracting parties undertake to treat all confidential information of which they become aware during the performance of this contract as confidential and to use it only for contractually agreed purposes.
b) In cases of doubt, each contracting party is obliged to ask the other for consent before disclosing the confidential information.
c) Confidential information within the meaning of this provision is information, documents, details and data which are designated as such or which by their nature are to be regarded as confidential. Mangold & Mangold agrees to grant access to Customer’s confidential information only to those employees who are entrusted with the performance of services under this Agreement. Both contracting parties are obliged to have their employees sign a corresponding declaration of commitment at the request of the respective other party and to present it to the other party. The contracting parties shall not file applications for property rights for confidential information of the respective other party.
d) If confidential information as defined above is requested by a public body, this party shall be informed immediately and even before the information is released to the public body.
(e) The rights and obligations under this section on confidentiality shall not be affected by any termination of this Agreement. Both Parties are obligated to return Confidential Information to the other Party upon termination of this Agreement or to destroy it, at the other Party’s option, to the extent it has not been properly consumed.
f) The contractual documents enjoy copyright protection and their information must be treated confidentially. Unauthorized copying or making their information available to third parties without the consent of Mangold & Mangold may result in a warning and claims for damages. In the event of a breach by the customer, a contractual penalty of 5,000 euros or, if lower, the amount of the contract or offer shall be due, unless the customer proves that it is not responsible for the breach.
33. communication form
a) All agreements that contain an amendment, supplement or concretization of these GTC as well as contractual agreements and arrangements, including the cancellation of this formal clause, as well as special assurances and arrangements must be made in text form in accordance with the provisions of the German Civil Code (BGB). § 126 b BGB.
b) Insofar as a written form is expressly required within the scope of these GTC or other contractual provisions, this shall mean a hand-signed declaration of the contracting parties in accordance with §§ 3 and 4 of the German Civil Code (BGB). § 126 BGB meant. This also applies to an agreement to waive the requirement of the written form.
34. non-solicitation
a) Both contracting parties may not directly or indirectly entice away employees from each other. Furthermore, the contracting parties are prohibited from employing an employee in any form in their own company during the existence of an employment relationship of an employee with the respective contracting party.
b) The aforementioned restrictions shall not apply if the employer in question has given its consent to the project prior to the employee’s employment with the other Party. In the event of a violation, a contractual penalty to be determined according to equitable considerations, but amounting to at least 500 euros, shall be due, unless the contracting party had no knowledge of the employee’s employment with the other contracting party at the time of hiring.
35. amendment of the GTC
a) Mangold & Mangold reserves the right to change the GTC at any time with effect for the future. The change shall only be made if there are valid and objective reasons, in particular of a legal, technical and business nature, and only if it is reasonable for the customer.
In case of changes, Mangold & Mangold shall notify the customers of the changed GTC at least in text form, so that the customers have two weeks to object to the change. In the event of an objection, the customers and Mangold & Mangold have the right to terminate. Termination may not be effected if it would unreasonably prejudice the contractual interests of the customers. If the customers do not object to the amended terms and conditions within the period, they shall be deemed accepted.
36. final provisions
a) The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
b) The place of performance and exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be the registered office of Mangold & Mangold, provided that the customer is a merchant, a legal entity under public law or a special fund under public law. Mangold & Mangold reserves the right to take legal action at the legal place of jurisdiction.
c) The customer may transfer claims against Mangold & Mangold based on this contract to third parties only with the consent of Mangold & Mangold.
d) The invalidity of individual provisions of these GTC and the contract based on them shall not affect the validity of the remaining provisions. In this case, the contracting parties undertake to agree on effective provisions that come closest in economic terms to the intended purpose of the invalid provisions. This applies accordingly to the closure of any contractual loopholes.
